TERENCE J. DECKERT v. HELEN C. DECKERT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2495-10T3

TERENCE J. DECKERT,

Plaintiff-Respondent/

Cross-Appellant,

v.

HELEN C. DECKERT,

Defendant-Appellant/

Cross-Respondent.

_____________________________

February 27, 2012

Argued January 17, 2012 - Decided

Before Judges Parrillo, Alvarez and Skillman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-3-10.

Ronald G. Lieberman argued the cause for appellant (Adinolfi & Goldstein, P.A., attorneys; Robert J. Adinolfi, of counsel; Shira R. Katz, of counsel and on the brief).

Matthew Podolnick argued the cause for respondent (Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys; Mr. Podolnick, of counsel and on the brief).

PER CURIAM

Defendant, Helen Deckert, appeals from a post-divorce judgment order of the Family Part reducing plaintiff's, Terence Deckert's, child support obligation from $1,500 monthly to $225 per week (or $967.50 per month). Among other arguments, she contends the trial court erred in finding changed circumstances; in determining the amount of income imputed to both parties; in calculating the number of overnight visits exercised by each party; and in reducing plaintiff's child support obligation prior to completion of discovery and without plaintiff's current case information statement (CIS), without information she requested regarding plaintiff's law firm and live-in companion, and without benefit of findings of fact and conclusions of law. Plaintiff cross-appeals, contending the court erred in not holding defendant in contempt for violating prior discovery orders, failing to extend discovery and denying him attorney's fees and costs. We affirm save for a limited remand to recalculate the number of overnight visits by plaintiff and for any adjustment in his child support obligation deemed appropriate by this recalculation.

By way of background, the parties were married on June 14, 1990 and have two sons, the older of whom is presently in college. The parties divorced by way of a dual final judgment of divorce (FJD) dated January 12, 1998. The FJD provided that the parties share custody of the children and named defendant as the residential custodian. Plaintiff's child support obligation was set at $500 per week or $2,166.66 monthly until December 2000, at which time their income was to be reviewed and child support revised if appropriate. Plaintiff also was to pay two-thirds of the children's day care expenses, totaling an additional $140 per week.

Subsequently, in an unsigned court order with an effective date of August 10, 2001, plaintiff's child support obligation was fixed at $518 per week, including day care, or $2,227.40 monthly, based on plaintiff's imputed income of $150,000. This order remained in effect until the parties executed a consent order on October 28, 2009, effective June 1, 2009, reducing plaintiff's child support obligation to $1,500 monthly until July 31, 2010, "at which time the parties will either reach a consent agreement as to the . . . child support obligation or present an application to the Court for further consideration."1 The order was to remain in effect until the eldest child started college2 and that

[b]oth parties reserve their respective rights to make any and all arguments that each feels appropriate as to what should be the ongoing child support Order from that period of time forward, it being understood that the $1,500 interim Order now being entered shall not be probative as to the ongoing Order to be effective when [the older son] matriculates in college.

The order also fixed a discovery schedule.

Thereafter, there was disagreement between the parties over the scope of discovery, focused in part on plaintiff's attempt to secure financial information involving defendant's new husband, prompting plaintiff to file a motion on August 3, 2010 to compel discovery and reduce child support. In his August 30, 2010 tentative decision, the Family Part judge denied relief stating that "there is insufficient information upon which the Court can make a determination" on modification of child support because "[p]laintiff alleges unemployment but shows expenses of nearly $6,000.00 per month or $70,000.00 per year and does not explain the source of said payments" and "there appears to be an additional $5,000.00 worth of mortgage payments per month

. . . ." The judge, however, did require the parties to take depositions and answer interrogatories within sixty days of the order and limited relevant discovery to the last three years. The parties subsequently agreed to exchange discovery on October 20, 2010, although defendant would provide plaintiff only with the last five years of her W-2 income instead of her tax returns since she jointly files with her husband, who is not a party to the litigation.

On November 2, 2010, plaintiff filed another application to modify child support, enforce litigant's rights, compel discovery, extend discovery, and for attorneys fees and sanctions. By then, plaintiff had already filed for Chapter 7 Bankruptcy in May 2010 and all his debts were discharged on September 9, 2010, including $300,000 in credit card debt and legal fees and $425,000 home equity loan. According to plaintiff, the only debt he has to repay is a loan from his father in the amount of $250,000. And although plaintiff's February 16, 2010 CIS reported an annual salary of $95,000, as did an earlier CIS, his most recent CIS dated September 1, 2010 indicated annual income of only $24,960, representing unemployment benefits he was receiving every two weeks. Following defendant's opposition and argument, the trial court entered an order pursuant to the Child Support Guidelines reducing plaintiff's child support obligation to $225 per week ($967.50 monthly) based on an annual income of $100,000 imputed to plaintiff and $31,200 to defendant. The $225 amount was comprised of $175 for the younger child based on the Guidelines and 26.30% parenting time attributed to plaintiff, and an additional $50.00 per week for the older child in college, representing a prorated amount of the $175 proportionate to the amount of time that the older child spent at home. The court denied all other relief sought by plaintiff. This appeal and cross-appeal follow.

Defendant initially contends that plaintiff failed to make a threshold showing of changed circumstances to warrant consideration of his request of a reduction in child support. We disagree.

In order to modify child support there must be a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980); Chalmes v. Chalmes, 65 N.J. 186, 192 (1974). Such a showing includes "the increase or decrease in the supporting spouse's income[,]" Lepis, supra, 83 N.J. at 146; see also Martindell v. Martindell, 21 N.J. 341, 355 (1956), and a child's increase or decrease in needs, due to various events, ibid., including attending college. Colca v. Anson, 413 N.J. Super. 405, 415-16 (App. Div. 2010). Of course, the party moving for the modification has the burden of establishing that the changed circumstances are substantial enough to warrant the relief sought. Lepis, supra, 83 N.J. at 157. Further, the moving party has the initial burden of demonstrating a prima facie showing of changed circumstances before the court will order discovery of the full financial circumstances of the parties. Id. at 157-58. The modification based on changed circumstances is left to the sound discretion of the trial court and will only be reversed if there is an abuse thereof. Innes v. Innes, 117 N.J. 496, 504 (1990). And although "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary[,]" Lepis, supra, 83 N.J. at 151, there is no bright line rule of measurement and such determinations reside within the broad discretion of Family Part judges, which we will not disturb absent an abuse thereof. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

Here, plaintiff has demonstrated changed circumstances in that he was unemployed at the time of his application and his oldest child had commenced boarding at college. In his notice of motion, plaintiff sought to "modify child support as a result of substantial changes in circumstances," which he specified and explained in his certification in support of his motion. Therein, he stated that "[p]aragraph 4 of the [interim] consent order [dated October 28, 2009] also provides that my new child support obligation is binding until [my oldest child] attends college. The Court should know that as of August 13, 2010, [my oldest child] has been attending Arizona State University, in Tempe[,] Arizona." Further, plaintiff's reply certification reiterated that "[t]he $1,500 represents an interim amount pending our son's attendance at college, which commenced this past August, 2010[,]" and added further that "I have experienced other substantial changes in circumstances, including my loss of income."

These facts went undisputed by defendant. Indeed, from when child support was last modified on October 28, 2009 to the instant proceeding, plaintiff had lost his job, thereby suffering a loss of income of approximately $70,000. While it appears that plaintiff had been self-employed for many years and that the last time the matter was effectively evaluated was in 2001 when the court imputed $150,000 income to him, at present, plaintiff was unemployed and collecting unemployment benefits representing a substantial downward turn in his fiscal picture.3

Moreover, he experienced financial loss in his recent bankruptcy proceeding. Plaintiff leases his current residence and automobile. Most of his bank accounts have been depleted leaving only his TD checking account. And as for his oldest child attending college away from home, even the October 2009 interim order contemplated this change in circumstance necessitating further discovery and a review and reevaluation of plaintiff's child support obligation. Under the circumstances, we discern no abuse of discretion in the trial court's penultimate determination of a substantial change in plaintiff's circumstances.

Defendant next contends that the court's ultimate determination to reduce plaintiff's child support obligation is bereft of adequate findings of fact and conclusions of law. Again, we disagree.

Rule 1:7-4(a) states "[th]e court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appeallable as of right . . . ." Failure to make factual findings and conclusions of law causes a "'disservice to the litigants.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). The appellate court "ordinarily remand[s] to the trial court to make findings of fact if the trial court failed to do so." Ibid.; see also Barnett & Herenchak, Inc. v. State Dep't of Transp., 276 N.J. Super. 465, 473 (App. Div. 1994).

Here, the court expressly based plaintiff's reduced child support obligation of $175 weekly for the parties' youngest child on imputed annual income to plaintiff of $100,000 and $31,200 to defendant. These figures, in turn, find adequate support in the record. The court's December 17, 2010 order specifically stated that it adopted plaintiff's estimate of his annual income based on his recent earnings history of $95,000 per year, as represented in his previous two CIS filings. As for defendant, the court imputed income to her in accordance with her current wages based on a forty-hour work week. In addition, the $50 per week ordered as child support for the oldest child in college was based on prorating the child support ($175 weekly) for the youngest child to the estimated amount of time the oldest would spend at home with defendant. Thus, contrary to defendant's argument on appeal, there appears adequate rationale for the court's determination to allow for meaningful appellate review.

On this score, we perceive no abuse of discretion in either the court's imputation of income to the parties or the amounts attributed to each of them. It is well-settled that the "fairness of a child support award . . . is dependent on the accurate determination of a parent's net income." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A(12) to R. 5:6A at 2504 (2012). The guidelines provide that:

If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:

a. impute income based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);

b. if potential earnings cannot be determined, impute income based on the parent's most recent wage or benefit record (a minimum of two calendar quarters) on file with the NJDOL (note: NJDOL records include wage and benefit income only and, thus, may differ from the parent's actual income); or

c. if a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the New Jersey minimum wage ($ 7.15 per hour).

In determining whether income should be imputed to a parent and the amount of such income, the court should consider: (1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed, (2) the reason and intent for the voluntary underemployment or unemployment, (3) the availability of other assets that may be used to pay support, and (4) the ages of any children in the parent's household and child-care alternatives. The determination of imputed income shall not be based on the gender or custodial position of the parent. Income of other household members, current spouses, and children shall not be used to impute income to either parent except when determining the other-dependent credit.

[Id. at 2504-2505.]

When imputing income, the trial court "should apply the factors listed in the guidelines as well as any other evidence related to each party's ability to earn income." Caplan v. Caplan, 182 N.J. 250, 270 (2005). We will not disturb the trial court's decision to impute income unless "'the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.'" Ibrahim v. Aziz, 402 N.J. Super. 205, 210 (App. Div. 2008) (quoting Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004)).

While defendant does not dispute imputation of income to plaintiff, she quarrels with the amount set as too low. Yet, as noted, the $100,000 figure was based on plaintiff's most recent employment and earnings history since the Guidelines themselves allow the use of past wages to impute a current income. See Pressler & Verniero, supra, Appendix IX-A(12) to R. 5:6A at 2504. Although defendant speculates that plaintiff's expenditures over the years suggest earnings well in excess of the amount imputed to him, she points to no deficiency in plaintiff's financial disclosures, which otherwise clearly demonstrate that these expenses were funded in large measure by debt financing a $250,000 loan from his father, $308,000 home equity loan, and $275,000 in credit card debt for which interest payments alone amounted to $9,000 per month. Indeed, plaintiff's limited sources of earned income were such as to render him unable to meet these debt obligations, causing him to file for protection in bankruptcy, wherein along with the discharge of most of his debts, he was left with virtually no assets other than a TD bank checking account. Thus, the record amply supports imputed income to plaintiff of no greater than $100,000 yearly.

Defendant's challenge to her imputed income fares no better. Her W-2 forms reveal an hourly wage of $14.56, amounting to approximately $600 per week based on a forty-hour work week. Although at the time defendant was only working part-time, no reason was proffered why she could not work full-time, and therefore, the amount of income imputed to defendant was entirely reasonable.

Although we find adequate support in the record for the income figures used in the trial court's child support calculation, we are at a loss as to the basis for its assignment of 26.30% parenting time to plaintiff, equating to approximately 94 overnight visits per year and, consequently, resulting in a lower child support obligation.

Clearly, the amount of parenting time may have an effect on the non-custodial parent's child support obligation. Pressler & Verniero, supra, Appendix IX-A(13) to R. 5:6A at 2505. While support cannot be increased because a parent accepts little or no parenting time, "the guidelines permit reduction of the support obligation of a non-custodial spouse who exceeds traditional parenting time. . . ." Pressler & Verniero, supra, comment 1.3.1 "Effect of custodial and parenting time" on R. 5:6A; see also Elkin v. Sabo, 310 N.J. Super. 462, 469-70 (App. Div. 1998).

Here, the court's December 17, 2011 order reduced plaintiff's child support obligation by $30 per week due to his parenting time expenses. This, in turn, was based on a finding that plaintiff's parenting time is 26.30%, which, as noted, equals about 94 overnight visits per year. However, in plaintiff's Child Support Guidelines Worksheet submitted in support of the instant application, he represented that his parenting time was only 14.25%, or approximately 50 overnight visits per year, which would warrant only a $16 reduction in weekly child support. On the other hand, the FJD calculated overnight visitation at 104, exclusive of holidays and summer vacations. These discrepancies are neither addressed nor reconciled in the court's decision and its ultimate finding of a $30 reduction based on 94 overnight visits more than what plaintiff's own proofs supports remains unexplained. Therefore, although we are otherwise satisfied with the court's child support calculation, we are constrained to remand to the Family Part for the limited purpose of ascertaining the correct amount of plaintiff's parenting time and to make whatever adjustment to his child support obligation thereby deemed appropriate.

We have considered defendant's remaining arguments as well as those raised by plaintiff on his cross-appeal and deem none of them of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

1 The genesis of this consent order was defendant's July 9, 2009 application to enforce litigant's rights as to child support and plaintiff's August 28, 2009 cross-motion to reduce his child support obligation from $518 to $170 per week. In support of his cross-motion, plaintiff appended an August 4, 2009 CIS indicating that he had recently commenced employment at an annual salary of $95,000.

2 The oldest child started college on August 13, 2010 at Arizona State University. An educational trust had earlier been established to fund the cost of the children's college tuition.

3 It appears plaintiff has recently become employed again as a car salesman.