PAMELA FINERFROCK v. JUDE HICKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0650-12T3

PAMELA FINERFROCK,

Plaintiff-Respondent,

v.

JUDE HICKS,

Defendant-Appellant.

_______________________________

December 9, 2013

Argued June 11, 2013 - Decided

Before Judges Fisher and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FD-08-0833-08.

Kourtney A. Borchers argued the cause for appellant (Rebel Brown Law Group, LLC, attorneys; Ms. Borchers, on the brief).

Pamela Finerfrock, respondent, argued the cause pro se.

The opinion of the court was delivered by

GRALL, P.J.A.D.

Defendant Jude Hicks appeals an order entered on plaintiff Pamela Finerfrock's motion to increase child support and his cross-motion to decrease child support, alternate the annual tax exemption for their child,1 allocate medical expenses, and modify his parenting time. For the reasons stated in Part I of this opinion, we affirm the court's denial of defendant's motion to modify parenting time. For the reasons stated in Part II, we remand so the court can address defendant's requests for allocation of medical expenses, which the court apparently overlooked, and for the court to reconsider child support in conformity with this decision. The facts pertinent to parenting time and child support are set forth separately for ease of exposition.

I

The parties have one child, who is now nine years of age. Since entry of the initial custody order in February 2008, the child has been in the joint legal custody of her parents and has primarily resided with plaintiff.

Defendant's parenting time was first delineated in an order of March 2010, which provided for overnight parenting time every Wednesday and on either Friday or Saturday night of alternating weekends. In addition, it provided for vacation time as agreed to by the parties.

Defendant's parenting time was subsequently extended. In August 2010, defendant's alternate weekends were changed to run from Friday evening until Monday morning, and in December 2010 defendant was granted evening visits on the Thursday preceding plaintiff's weekends. In February 2011 the parties attended mediation to discuss parenting time, but they ultimately agreed to continue the schedule already in place.

In the cross-motion at issue here, defendant sought additional time with his daughter on the ground that it would reduce the frequency of his daughter's shifting back and forth between her parents and also minimize her exposure to parental "discord and confrontations" related to transfers of physical custody. While defendant asserted that there was "discord" and "confrontations" and "unpleasant incidents" during "pick up and drop off," he did not say what occurred or how anything that did occur had any impact on the child. In short, he simply described plaintiff's requests about pickup and drop off as being unpleasant.

The trial court denied defendant's requests on the ground that he had not shown a change in circumstances warranting modification of the schedule in place. Defendant urges us to reverse because the court did not make factual findings supporting the determination and resolved a dispute of material fact without a plenary hearing.

Because defendant did no more than assert his complaints and perceptions without describing what was occurring or its impact on his daughter, we cannot conclude that the court erred. A parent seeking modification of parenting time has the burden of establishing changed circumstances affecting the welfare of the child. Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007); Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div.), certif. denied, 28 N.J. 147 (1958). Defendant's unsupported and vague allegations of discord, confrontation and unpleasant incidents were inadequate to raise a genuine question about the welfare of the child warranting any additional inquiry.2 Consequently, defendant's arguments on this point have insufficient merit to warrant any additional discussion in a written opinion. R. 2:11-3(e)(1)(E).

II

A

The questions related to child support in this case were complicated by the parents' respective circumstances at the time of these motions. This case is unusual in that both parents were married when plaintiff filed her motion for an increase in child support, and each had three children borne of their respective second marriages. Both had children under the age of two when these motions were heard, and both were providing child care. Defendant's wife was working full-time and earning more than he, and plaintiff's husband was earning all of the income for their family.

When the initial support order for the parties' child was entered in February 2008, defendant was working as a waiter and studying to become a registered nurse. Plaintiff was working as a waitress. Plaintiff waived application of the child support guidelines and agreed to accept child support of $50 a week paid directly to her, which was less than the guidelines amount.

Despite the several modifications of parenting time discussed above, the only change in defendant's child support obligation prior to these motions was made in August 2010, when the court ordered defendant to provide the child's medical insurance. Defendant has continually satisfied that obligation by covering the parties' daughter under his new wife's health insurance, but if there is any cost his wife incurs for adding his daughter to her insurance, defendant has not provided any evidence indicating what that cost is.

The following evidence relevant to the parties' ability to pay child support was submitted on these cross-motions concerning child support. Plaintiff left the workforce in May 2008, a month before the birth of the first of the three children borne of her relationship with her husband. Although plaintiff obtained a certificate authorizing her to work as a medical assistant, she never worked in that field. Plaintiff explained that the cost of child care for her three youngest children $2000 to $2400 per week by her estimate would exceed her earnings. Consequently, she decided to refrain from renewing her certificate or seeking work outside the home until her youngest child was in school full-time.

Plaintiff's spouse, "an iron worker," supports their family. In 2011, he received $17,268 in unemployment benefits and earned $35,958.30 working for an hourly wage of $42. Assuming a forty-hour week and a $42 hourly wage, plaintiff's husband's earnings reflect work for less than half a year in 2011, about twenty-one and one-half weeks. Apparently by combining his wages and unemployment benefits in 2011 and dividing by fifty-two weeks, plaintiff reported that his average weekly income was $1024.

During the period between the initial support order and these motions, defendant achieved his goal of earning an associate's degree and becoming a registered nurse. At the motion hearing, he testified about his hours of work, and he submitted recent pay stubs and W-2 forms. As a registered nurse, defendant secured work with two employers one who paid $26 per hour and one who paid $30 per hour. According to defendant, he generally worked about sixteen hours a week, and his wife, also a nurse, worked full-time and earned about $1200 weekly. They generally shared responsibility for child care, with defendant providing the bulk of it given his part-time schedule.

Defendant acknowledged working between thirty-two and forty hours per week during a one-month period. He explained that he was able to do that by arranging his work schedule around his wife's schedule, which "changes all the time." He further indicated that when he and his wife had overlapping shifts, his mother cared for their children. Finally, defendant asserted that he would not be able to work as many hours in the immediate future, because in September 2012 he was enrolled to attend college full-time in order to obtain a bachelor's degree in nursing. He expected to complete his studies, which included a twelve-hour clinical shift, before January 1, 2013.

B

On that record, the trial court made the following determinations pertinent to child support.

The court accepted plaintiff's decision to care for her three young children rather than seek work outside the home as reasonable, and, for that reason, declined to impute any income to her. In reaching that conclusion, the court considered data from the U.S. Bureau of Labor Statistics Wage Compendium reflecting an hourly wage of $13.97 for certified medical assistants. Assuming a forty-hour work week, that would result in a salary of about $29,000 per year. The court also considered "NACCRRA data"3 on the cost of annual daycare in New Jersey for two children under four years of age, which the court found was $32,000 annually.4 The court further assumed that certified medical assistants and iron workers are employed during day-time hours only. On that ground, the court concluded that it would be inappropriate to impute any income to plaintiff because the cost of work-related child care was prohibitive when compared to plaintiff's potential income.

In contrast, the court imputed to defendant a weekly income of $804. The court based that amount on defendant's earnings during the one-month period when he and his wife were able to adjust their schedules and accommodate any overlaps with the help of his mother. Nevertheless, recognizing that defendant would not be able to work more than fifteen hours a week for $30 per hour while completing his studies, the court imputed a lower weekly income, $450, to him for the period starting on September 1 and ending on December 31, 2012.5

As a consequence of the court's determinations on imputation, the judge found defendant responsible for 100% of the child support obligation for the parties' only child. The court reduced defendant's support obligation to account for his overnight parenting time and by granting him an "other-dependent deduction." Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A at 2548-49 and Appendix IX-B to Rule 5:6A at 2601-02 (2013).6 Defendant was not given credit for the cost of his daughter's medical insurance absorbed by his wife, presumably and properly because he did not provide any documentation of the cost. With those adjustments, the judge found defendant's weekly child support obligation to plaintiff is $137, except for the period between September 1 and December 31, 2012, when it was $85.

The court did not calculate an "other-dependent deduction" despite plaintiff's obligation to contribute to the support of the three children borne of her marriage. The court concluded that such a deduction for plaintiff's other dependents would double count her obligation to support those children, which was fulfilled by caring for them. But in doing so, the court overlooked plaintiff's obligation to support this child, who was of school age when the order was entered.

The court denied defendant's request for an order obligating plaintiff to alternate the tax exemption for their daughter on the ground that there is no legal basis for a court to enter such an order absent an agreement. The court did not otherwise address defendant's claim that plaintiff, who had no income, would not benefit by taking the exemption.

The trial court apparently overlooked defendant's requests involving medical expenses in either its order or the statement of reasons accompanying that order. The court did not address and left unresolved defendant's requests for an order: assigning responsibility for the first $250 of expenses not covered by insurance; dividing responsibility for expenses in excess of $250 per year; requiring plaintiff to use providers within the insurance plan; and obligating plaintiff to obtain defendant's consent before incurring a medical expense for their child in excess of $100 absent emergency.

C

A trial court's determinations on a motion to modify support involve an exercise of discretion based on the facts and the law. Tash v. Tash, 353 N.J. Super. 94, 99-100 (App. Div. 2002). This court will not disturb the factual findings underlying the court's determination if they are supported by adequate evidence and will not reverse a discretionary determination unless the court has misapplied the law or mistakenly exercised its discretion. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In contrast, we give no deference to the trial court's understanding of the law. Colca v. Anson, 413 N.J. Super. 405, 412-13 (App. Div. 2010). Finally, in reviewing a child support award in a case such as this where the guidelines are applicable, we must determine whether the trial court deviated from the guidelines, and if it did, whether the court adequately explained why the deviation is consistent with the child's best interests. Ordukaya v. Brown, 357 N.J. Super. 231, 239-40 (App. Div. 2003).

Despite our deferential standard of review, there are errors here that require a remand for reconsideration. Preliminarily, the trial court did not address any of defendant's several requests involving medical expenses. Accordingly, a remand is required to permit the trial court to address those issues. Indeed, defendant is entitled to an order obligating plaintiff to pay the first $250 of their child's annual unreimbursed medical expenses as a matter of law, because those expenses are included in the child support amount. Appendix IX-A, supra, at 2546-47.

A second difficulty that requires a remand is with the trial court's factual findings. The findings underlying the court's determination to refrain from imputing income to plaintiff are not supported by the record as a whole. In this respect, the court focused on the cost of child care for this child's half-siblings. But the court overlooked evidence demonstrating that plaintiff's husband was unemployed for much of the year and, therefore, was available to provide child care for his children during that period. Moreover, in making assumptions about plaintiff's need to care for the children herself, the court relied on assumptions not supported by the record. Finally and importantly, in deeming child care costs to be prohibitive, the court disregarded the guidelines, which require allocation of that cost between plaintiff and her husband in proportion to their respective income only plaintiff's "income share" of that cost was properly considered. See Appendix IX-A, supra, at 2550-51.

It is worth noting that if the judge had calculated an other-dependent deduction based on imputed income to plaintiff, the percentage of the child care cost fairly attributable to her would have been apparent. Before determining that it was inappropriate to disregard the guidelines on imputation and other-dependent deductions, the court should have informed itself by determining what the impact of an "other-dependent deduction" would be. Accordingly, a remand for reconsideration of imputation of income to plaintiff is required.

Defendant also objects to the court's imputation of income to him, arguing that both he and plaintiff have responsibility for child care, which the court did not account for. Although defendant is correct that the court's finding about the ease with which he and his wife can arrange their schedules to care for their children lacks direct support in the record, his testimony about their ability to do so during one month supports that determination. Moreover, he provided insufficient evidence to permit an adjustment of this child support amount to account for a child-care expense attributable to these children. Accordingly, we reject this claim.

We also reject defendant's argument that the trial court erred in denying his request for an order providing for the parties to take the tax exemption for their daughter in alternating years. Defendant's reliance on this court's decision in Gwodz v. Gwodz, 234 N.J. Super. 56, 62 (App. Div. 1989), is misplaced. In Gwodz, we recognized that the Internal Revenue Code at the pertinent time gave "a custodial parent the right to the exemption, subject to waiver by that parent," but we concluded "that the trial court had the power to exercise authority to effectively allocate exemptions through use of its equitable power." Ibid.7

In Gwodz, we reversed and remanded a "portion of the order which provided for splitting the two tax exemptions" that was fashioned without regard to its effect on each party and the child support order in place. Id. at 62-63. Here, the record did not include the information or argument essential to the exercise of the equitable power recognized in Gwodz. Defendant simply asserted that his request to alternate the tax exemption was reasonable and fair. His argument is no different on appeal, and it overlooks the importance of the earnings of the parties' respective spouses to an assessment of the relative benefits of the tax exemption. In short, the allocation defendant requests, like the determination to split exemptions in Gwodz, was unsupported by facts or claims related to the grounds upon which this equitable relief may be granted.

Although the trial court was mistaken in concluding that it lacked authority to allocate tax exemptions in the absence of an agreement by the parties, the error was harmless in this case because defendant did not provide the essential evidence. Gwodz demonstrates that there is no authority to allocate a tax exemption on an apparently "fair" formula that, in reality, is arbitrary. In Gwodz, this court reversed an equal division of exemptions; here, defendant seeks an equal sharing of a single exemption by alternating tax years. The controlling factor is not equal sharing of the exemption; it is the relative benefit of the exemption and its impact on the funds available for the support of the child.

In this case, the relative benefits could not be assessed without considering the tax returns filed by both families. We decline to remand for development of the record on this point because the record does not include the necessary information. Because the rule recognized in Gwodz is one that is longstanding and defendant had the burden of demonstrating his entitlement to this equitable relief, defendant is not entitled to relief on this ground.

We have considered defendant's remaining objections to the child support calculation and determined that they have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). To summarize our conclusions, on remand the trial court must address defendant's several requests involving medical expenses and must reconsider its determination to refrain from imputing income to plaintiff in light of this opinion and the child support guidelines.

Affirmed in part and remanded for reconsideration in conformity with this decision. We do not retain jurisdiction.

1 The parties mistakenly refer to this tax exemption as a deduction. See 26 U.S.C.S. 152(e); Ordukaya v. Brown, 357 N.J. Super. 231, 236 (App. Div. 2003).

2 Defendant objects to the court's rejection of his request without a plenary hearing, but he does not object to the court's decision to forego a referral to mediation requested by plaintiff's counsel to address apparent confusion about the scheduling of the child's vacation time. Referral to mediation is the first step when custody of a child is "a genuine and substantial issue." R. 5:8-6.

3 NACCRRA stands for the National Association of Child Care Resource and Referral Agencies.

4 Plaintiff did not provide that information to the trial court. However, the court included it in a tentative decision issued prior to the hearing on the motion, and neither party objected.

5 Although the court's written statement of findings and reasons and its order indicate that there were two child support guidelines worksheets, one based on weekly income of $804 and one based on weekly income of $450, the record provided on appeal does not include the second work sheet.

6 Although defendant did not provide any documentation of his wife's earnings, the court accepted defendant's representation that his wife earned $1200 a week. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A at 2549 (2013) (noting that an "other-dependent deduction" in child support shall be made only if the income of the other parent in the secondary family is provided). Neither party challenges that determination on appeal.

7 The applicable provision of Internal Revenue Code states:

(4) Special rule relating to 2 or more who can claim the same qualifying child.

(A) In general. Except as provided in subparagraphs (B) and (C), if (but for this paragraph) an individual may be claimed as a qualifying child by 2 or more taxpayers for a taxable year beginning in the same calendar year, such individual shall be treated as the qualifying child of the taxpayer who is--

(i) a parent of the individual, or

(ii) if clause (i) does not apply, the taxpayer with the highest adjusted gross income for such taxable year.

(B) More than 1 parent claiming qualifying child. If the parents claiming any qualifying child do not file a joint return together, such child shall be treated as the qualifying child of--

(i) the parent with whom the child resided for the longest period of time during the taxable year, or

(ii) if the child resides with both parents for the same amount of time during such taxable year, the parent with the highest adjusted gross income.

[26 U.S.C.S. 152(c)(4)(A)-(B).]