J.T. v. A.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4594-09T1

J.T.,

Plaintiff-Appellant,

v.

A.A.,

Defendant-Respondent.

____________________________________________

May 9, 2011

Submitted April 12, 2011 - Decided

Before Judges Espinosa and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-1162-03.

Carmen A. Malignaggi, attorney for appellant.

Hoffman DiMuzio, attorneys for respondent (Craig W. Kugler, on the brief).

PER CURIAM

Plaintiff, J.T., appeals from an order designating the dependent child exemption for federal and state income tax purposes. We reverse and remand for further proceedings.

The parties, who are not married, are the biological parents of one child, K.T., born on February 18, 1996.

An order dated May 9, 2008, named the plaintiff father as the parent of primary residence and the defendant mother, A.A. as the parent of alternate residence. Defendant filed a notice of motion on March 24, 2010, requesting that she be granted the dependent child exemption for federal and state income tax purposes. Plaintiff filed an opposition certification and a request for an adjournment of the April 23, 2010 return date of the motion.

The trial court entered an order on April 23, 2010 without the appearance of either party or respective counsel. The court made no findings, but granted defendant's application with "the defendant having even numbered years and the plaintiff having odd numbered years." This appeal follows.

On appeal, plaintiff contends the trial court's findings of fact and conclusions of law are inadequate and the trial court abused its discretion in denying the request for a postponement. We agree.

The scope of our review is limited. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992).

In Gwodz v. Gwodz, 234 N.J. Super. 56 (App. Div. 1989), we held that state courts have the equitable power to allocate tax exemptions for federal and state income tax purposes to non-custodial parents. However, since the trial court had insufficient evidence to make an allocation of the dependent child exemption, we reversed and remanded for the trial judge to "consider evidence and make findings respecting the extent of child support actually provided by each parent . . . and if a change in tax exemptions [was] deemed warranted, [to] determine whether [a] change in the existing support orders [was] required to reflect the benefits achieved by the change." Id. at 62-63.

Similarly here, the trial court failed to make the findings we required in Gwodz, See id. at 62-63. Our review of the record and consideration of the briefs, persuade us that the motion judge mistakenly exercised his discretion in the lack of any findings of fact or conclusions of law, including, but not limited to, the consideration of the tax consequences and the effects on the party taking the exemption.

We find merit to the challenge that the court abused discretion in denying the request for an adjournment when plaintiff had obtained consent from defendant and no prejudice would have resulted. We recognize trial courts have the discretion to deny adjournments where the record justifies denial of further delay. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). Here, the record is absent of any reasons for the denial.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.