MICHAEL NEUBERGER v. DINA FRIEDMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5437-10T3

MICHAEL NEUBERGER,

Plaintiff-Respondent,

v.

DINA FRIEDMAN,

Defendant-Appellant.

_______________________________

October 25, 2012

Argued October 10, 2012 - Decided

Before Judges Reisner, Yannotti, and Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-2040-03.

Eric S. Solotoff argued the cause for appellant (Fox Rothschild, LLP, attorneys; Mr. Solotoff, of counsel and on the brief; Lisa Steirman Harvey, on the brief).

Robert Ricci, Jr., argued the cause for respondent.

PER CURIAM

Defendant Dina Friedman appeals from the May 31, 2011 post-judgment order of the Family Part (1) reducing plaintiff Michael Neuberger's child support obligation, (2) fixing the parties' responsibility for college expenses to reflect an equal sharing, and (3) denying reallocation of counsel fees and costs. We affirm.

I.

The parties were married in May 1992. Two daughters were born during the marriage: Julia, born in 1993; and Sarah, born in 1997.1

The parties separated in March 2003, and a final Judgment of Divorce (JOD) was entered December 15, 2003. The JOD incorporated a Property Settlement Agreement (PSA) executed by the parties on September 16, 2003. The PSA obligated Neuberger to initially pay child support in the sum of $3000 per month, with an increase to $3500 per month as of January 2004.2 The PSA stated: "Child support is being paid by [Neuberger] based upon his current earnings of $166,000 per year ($100,000 base salary and $66,000 annual bonus in 2002) and [Friedman's] anticipated earnings of $164,000 per year."3 The child support obligation was not calculated based upon any stated methodology referenced in the PSA, and the parties expressly "acknowledge[d] that they ha[d] been advised by their respective attorneys as to the amount of child support payable pursuant to the New Jersey Child Support Guidelines," and that they "underst[ood] why the child support set herein differs from the Guidelines, if it does."

After their divorce, both parties married others. Neuberger and his second wife (and her daughter from a prior relationship) reside in New Jersey, and have one child together: Rachel, born in 2007. Friedman and her second husband reside in New York, and also have one child together: Chloe, born in 2007. Friedman has been the primary residential parent of Julia and Sarah.

At the time the trial judge decided this case, Julia was scheduled to begin her undergraduate studies in September 2011 at a private college in Ohio, where she will reside for approximately nine months each year. The PSA required the parties to pay for their daughters' undergraduate education "in proportion to their ability to pay," considering "income, expenses and savings."

In March 2011, Neuberger filed an application in the Family Part seeking (1) a reduction of his child support obligation; (2) additional parenting time during the summer;4 (3) a determination of the parties' respective financial obligations towards college tuition and related expenses; and (4) attorneys' fees. He based his claim for an adjustment in the level of child support on (1) his "current family obligations," (2) an "anticipated significant obligation to [Julia's] college," (3) "the fact that [Julia] will be residing at college," and (4) "the obvious lack of need by [Friedman.]"

Two months later, Friedman cross-moved for, among other things, (1) a recalculation of child support; (2) a declaration that "the parties split 50/50 the cost of [Julia's] college expenses . . . including tuition, room and board, and activity fees"; and (3) an order "[d]irecting [Neuberger] to pay [Friedman's] counsel fees and costs incurred in bringing this application."

On May 20, 2011, Judge Thomas J. Walsh heard oral argument and reserved decision. On May 31, 2011, the judge issued a nineteen-page written opinion, reducing Neuberger's child support obligation from $3500 per month to $2481 per month, and granting Friedman's request for a 50/50 allocation of Julia's college expenses. Both parties' requests for reallocation of counsel fees and costs were denied. Friedman's appeal followed.

II.

Our scope of review is limited. The Family Part's factual findings are entitled to considerable deference. D.W. v. R.W., ___ N.J. ___, ___ (2012) (slip op. at 16) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, we do not pay special deference to its interpretation of the law. Ibid. (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).

We "'do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also Cesare, supra, 154 N.J. at 413 (recognizing that deference is warranted because family courts have "special jurisdiction and expertise in family matters").

An application to modify a child support obligation requires a demonstration of a change in circumstances warranting an adjustment. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (citing Lepis v. Lepis, 83 N.J. 139, 157 (1980)). In the execution of its considerable expertise and exercise of principled discretion, the Family Part's decision "must be made in accordance with the best interests of the children." Ibid.

Based upon the data gleaned from the PSA, the parties' combined 2002 income was approximately $330,000. Eight years later, in 2011, the parties each submitted a Case Information Statement (CIS) in support of their motions, establishing aggregate 2010 earnings in excess of approximately $800,000.

In addition to the significant increase in income experienced by both parties, the motion certifications unquestionably established other significant changes in their financial circumstances, including: Julia's higher education expenses and leaving home to attend college;5 the parties' remarriages and additional children with their respective spouses; and the modification in parenting time.

Judge Walsh correctly concluded "[t]here can be no doubt that [Neuberger has met] the burden of proving a prima facie case of changed circumstances under Lepis." As the judge stated:

Both parties' incomes ha[ve] more than doubled since the initial child support amount was established. Furthermore, [Julia] is going away to college in August of this year and both children have reached their teenage years. . . . Both parties are remarried and have children from their second marriages. . . . These . . . factors [and the high-income level of the parties] clearly show that a recalculation of child support is appropriate, . . . and [that a strict] application of the child support guidelines [is] inappropriate.

We agree with this assessment. See Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997) ("[A] movant may make a prima facie showing of changed circumstances under Lepis by citing a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review.").

Furthermore, because the disclosures contained in each party's CIS and supporting certifications did not present a disputed issue of material fact as to any relevant matters, the judge was not required to conduct a plenary hearing.

Friedman argues that Judge Walsh improperly decreased Neuberger's child support obligation to $2481 per month (a decrease of $1019 per month).6 Friedman contends that the judge summarily determined the financial circumstances of the parties, failed to make any findings of fact or conclusions of law, improperly eliminated certain expenses from the budget that she provided in her CIS, and improperly decreased support based solely upon the maturation of the children. We find none of these arguments persuasive.

Judge Walsh made extensive findings in his nineteen-page written decision, and properly concluded that a reduction of child support was warranted in view of parties' financial circumstances and other relevant considerations set forth in N.J.S.A. 2A:34-23(a). Recognizing the anomalous result Neuberger's earnings had increased substantially since the advent of the PSA, yet his child support obligation was reduced the judge stated:

[T]he court is well aware of the seeming inconsistency in the result of this analysis, in light of the fact that the parties agreed in September of 2003 for plaintiff to pay an agreed amount of what was eventually $3,500 per month. This was at a time when the parties were earning well less than half of what they each earn now. However, as previously stated, that amount was a negotiated amount arrived at without reference to the Child Support Guidelines or any other stated methodology. In light of this, . . . th[e] prior agreement cannot represent any type of guidepost . . . in setting a current amount[.]

In high-earner contexts where the parental ability to meet the children's basic needs is not in issue, the Child Support Guidelines (Guidelines) do not strictly control the determination of support;7 "the dominant guideline for consideration is the reasonable needs of the children, which must be addressed in the context of the standard of living of the parties." Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002); see also Strahan v. Strahan, 402 N.J. Super. 298, 307 (App. Div. 2008).

In such contexts, the Family Part should perform a computation up to the Guidelines maximum of $187,200, and then take all family resources and needs into account, applying the factors set forth in N.J.S.A. 2A:34-23. Caplan v. Caplan, 364 N.J. Super. 68, 85 (App. Div. 2003), aff'd, 182 N.J. 250 (2005).

N.J.S.A. 2A:34-23(a) requires the court to consider: (1) the needs of the child; (2) the standard of living and economic circumstances of each parent; (3) all sources of income and assets of each parent; (4) earning ability of each parent; (5) need and capacity of the children for education, including higher education; (6) age and health of the child and each parent; (7) income, assets and earning ability of the child; (8) responsibility of the parents for the court-ordered support of others; (9) reasonable debts and liabilities of each child and parent; and (10) any other factors the court deems relevant.

Children from wealthier households "are entitled to not only bare necessities, but a supporting parent [with a high income] has the obligation to share with his [or her] children the benefit of his [or her] financial achievement." Isaacson, supra, 348 N.J. Super. at 580. However, assessing the needs of the children in high-income cases must be "consistent with lifestyle without overindulgence." Id. at 583. Thus, in cases involving wealthier families, the court must determine the needs of a child "in a sensible manner consistent with the best interests of the child." Id. at 584.

Judge Walsh acknowledged the statutory factors, and meticulously applied the law in recalculating Neuberger's child support obligation. After applying the Guidelines up to maximum of $187,200, which resulted in $356 in weekly support, the judge noted that the "issue then becomes what discretionary amount the court should add to this figure to allow the parties' daughters to enjoy their parents' "good fortune." Upon doing so, the judge identified each of the factors set forth in N.J.S.A. 2A:34-23, and addressed each separately.

In reviewing the "reasonable debts and liabilities" of the parties, the judge appropriately eliminated certain expenses from Friedman's accounting to avoid double-counting, and to isolate the portion of the parties' incomes that was "supplemental" in the sense that such income was not already being allocated toward Julia's and Sarah's needs. Specifically, the judge eliminated Chloe's schooling expenses; the costs Friedman claimed for automobile expenses, including insurance and parking, as defendant conceded that her household did not own a car; Sarah's summer camp expenses; and babysitting costs, which the judge found were related to Chloe.

In fixing the post-September 2011 child support award, the judge stated:

There is no formula in establishing the appropriate adjustment for child support when a child goes away for college. As previously stated, the Child Support Guidelines . . . provide a guidepost in reminding the [c]ourt that 65% of all household spending is related to pooled items. . . . The truth . . . [is that] [Friedman's] mortgage, utilities, and many of the expenses needed to run the household, which [Julia] will still spend some time at, will not change. There are however, variable expenses, representing the approximate value of 35% of the child support attributable to [Julia], which [Friedman] will not be encumbered with during the approximately nine months of the year she is away at college. However, defendant's expenses for [Sarah] will not change at all. Taking all of the foregoing into account, the [c]ourt determines that the child support commencing September 2011 for the two children of the marriage will be based on monthly overall costs of $4865 of which [Neuberger's] responsibility is $2,481.

We do not demand arithmetical perfection in child support awards; rather, if a judge's findings are properly based upon the parties' CIS and supporting certifications, as here, we will not intervene. Also, because the judge's calculations were reasonable in view of the parties' respective financial condition, we will not disturb the ultimate award, which was discretionary and supported by the record. Friedman's additional arguments on the child support issue are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Friedman also challenges Judge Walsh's decision to require an equal sharing of Julia's college expenses, even though Friedman had initially asked for exactly what the judge ordered. We again find no basis for appellate intervention.

Friedman contends that the judge erred in his determination because it (1) was made without credible evidence; (2) required a Newburgh8 hearing; and (3) was based upon a mistaken finding concerning her income. Specifically, Friedman argues that the judge "mistakenly set [her] 2010 income at $409,471," which she maintains was "$75,000 greater than [her] actual gross income for 2010 of $334,000,"9 and that this incorrect assumption led the judge to obligate the parties to equally share in the cost of Julia's college.

Paragraph 15 of the PSA provided the following:

[T]he parties . . . agree[] to pay in proportion to their ability to pay (considering income, expenses and savings) for the undergraduate college . . . education of any child of the marriage, providing that such minor child gives evidence during his or her high school education that he or she has the potential or grades sufficiently high enough to warrant his or her acceptance in a recognized college . . . . Such payments shall include all necessary charges for application fees, . . . tuition, room, board, activity fees, lab fees, books and supplies, transportation, etc. [Neuberger] shall be consulted with respect to the child's choice of school. The selection of a school shall be made jointly by [Neuberger] and [Friedman] after consultation with the child.

Thus, the parties expressly agreed to contribute "proportion[ately]" to their children's higher education expenses conditioned upon "their ability to pay." As wealthy parents, who each had substantial net assets and six-figure annual salaries, it was clear that both possessed the ability to do so. Indeed, in her cross-motion, Friedman expressly requested that the judge allocate Julia's college costs in a "50/50 split," so that she and Neuberger would bear the costs equally.

Further, before Judge Walsh, both parties conceded that a Newburgh hearing10 was not required, depriving the judge of the potential benefit of such a hearing. Under the circumstances of this case, we fail to see how Julia was disadvantaged by her parents' waiver of what would have been an expensive and time-consuming plenary hearing.

In view of these concessions; the parties' ample ability to pay; the parties' relatively equal incomes; Julia's aptitude for higher education; and the terms of the PSA, which evinced the parties' clear desire to share the costs of their daughters' higher education expenses if they were able to do so, Judge Walsh correctly considered all relevant circumstances and equitably applied the PSA.

Lastly, Friedman argues that the judge erred in denying her request for counsel fees and costs. She contends that the judge was required to engage in a multifactor analysis before denying reallocation, and that the judge was required to take Neuberger's "bad faith in filing a meritless application" into account. She asserts that her former spouse "filed a motion under the guise of parenting time that was, in actuality, a request to decrease his child support obligation," and that the "request for parenting time was nothing more than an inappropriate doorway for [Neuberger] to get before the [c]ourt in order to reduce his child support."

Neuberger argues that the judge appropriately denied both parties' requests for counsel fees and costs and did not err in declining to award attorneys' fees to Friedman. Neuberger maintains that he did not file his motion in bad faith, and asserts that Friedman failed to submit appropriate certifications in compliance with Rules 4:42-9 and 5:3-5(c). Neuberger asks, "[h]ow can a [m]otion filed which successfully obtained for [Neuberger] an increase in parenting time and a decrease in his child support obligations be considered to be filed in 'bad faith'? The obvious answer is that it can not."11 We agree.

Rule 5:3-5(c) permits the court, in its discretion, to award attorneys fees. Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008); see also R. 4:42-9(a)(1) ("No fee for legal services shall be allowed in the taxed costs or otherwise, except . . . [i]n a family action, a fee allowance . . . on final determination may be made pursuant to R. 5:3-5(c)"). "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan, supra, 402 N.J. Super. at 317 (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). No abuse is presented in this case.

Here, Judge Walsh appropriately denied Friedman's request for counsel fees and costs. The record is devoid of any evidence suggesting that Neuberger acted unreasonably or lacked good faith in seeking to modify his support obligation, which he had never sought to modify since the PSA was executed in 2003. Friedman's allegation that Neuberger filed a stealth application to modify his support obligation is belied by the record.

In denying the parties' respective motions for counsel fees, Judge Walsh stated:

[B]oth parties filed their respective motions in good faith. Each has achieved partial success and both parties are eminently able to pay their own counsel fees. There is no history of such fees being awarded in this case. Under all of these circumstances, the [c]ourt does not conclude that it is appropriate that either party be awarded counsel fees.

Absent any evidence of bad faith, the judge's denial of counsel fees was appropriate, particularly where Friedman did not prevail on the key issue of child support. See Gotlib, supra, 399 N.J. Super. at 315 (affirming the trial judge's denial of the plaintiff's request for counsel fees after the defendant "prevailed on the key issue" of the children's education, and the record was devoid of any evidence suggesting that the defendant's position was "unreasonable or lacked good faith"); see also Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (allowance for attorney's fees and costs remains discretionary).

Affirmed.

1 We elect to use fictitious names for the parties' children, including the children from their subsequent marriages.

2 The PSA contained a waiver of alimony by both parties, but explicitly stated that "[Friedman] has waived alimony conditional upon [Neuberger's] agreement to pay child support as fully described in [four provisions describing Neuberger's promise to pay for certain (1) college savings funds, (2) summer camp expenses, (3) medical insurance premiums, and (4) unreimbursed medical expenses]."

3 The record does not indicate the parties' occupations in 2003. Friedman's tax information indicates that in 2010 she was an attorney; Neuberger's tax information states that his occupation in 2010 was in "finance."

4 The parties amicably resolved the parenting time issue.

5 Julia's anticipated cost of attendance for the 2011-2012 academic year, including tuition, housing, dining, and fees, was approximately $55,000.

6 The judge reduced the child support obligation, as of the date of the filing of the motion, to $2856, to be further reduced to $2481 in September 2011, which was the date when Julia would be first living at college.

7 As Judge Walsh observed, Note 20 to Appendix IX-A to Rule 5:6A states that "[i]f the combined net income of the parents is more than $187,200 per year, the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income . . . and the factors specified in N.J.S.A. 2A:34-23." Pressler & Verniero, Current N.J. Court Rules, Note 20(b) to Appendix IX-A to R. 5:6A at 2561 (2013) (emphasis added).

8 Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).

9 In her CIS (Part C-Income Information), Friedman indicated that her individual "[g]ross earned income last calendar (year) (2010) was $409,471."

10 In setting an appropriate contribution amount, a court is required to consider

all relevant factors, including[:] (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for higher education; (4) the ability for the parent to pay for that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

[Newburgh, supra, 88 N.J. at 545.]

11 As Neuberger notes, "[h]e was successful in three of the four [grounds asserted in his initial application], being denied only his request for an award of counsel fees."