CHRISTINE BARION v. STEVEN NOLFI
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
CHRISTINE BARION, f/k/a
May 21, 2014
Submitted April 1, 2014 - Decided
Before Judges Rothstadt and Lisa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-384-01.
Law Offices of Jef Henninger, attorneys for appellant (Jef Henninger, of counsel; Jaclyn Wyrwas, on the brief).
Joseph M. Wenzel, attorney for respondent.
In this post-judgment matrimonial action, defendant Steven J. Nolfi appeals from the trial court's January 18, 2013 order recalculating his child support obligation for the years 2006 to 2011 and fixing arrears in the net amount of $117,000, payable at the rate of $274 per week for seven years, after a $17,000 lump sum payment. Defendant appeals and argues that the trial court failed to make the required findings of fact to support its decision. We disagree and affirm.
Defendant and plaintiff, Christine Barion, f/k/a Christine Nolfi, divorced in 2002. They had three children together. Their Final Judgment of Divorce (JOD) granted plaintiff sole physical and legal custody of the three children, and required defendant to pay $403 in weekly child support to plaintiff. It also required defendant to notify plaintiff if his annual income exceeded $52,000, at which time his child support payments would be adjusted consistent with the Child Support Guidelines. Finally, the JOD required defendant to provide plaintiff with his tax returns on an annual basis. Later, through a consent order dated April 3, 2006, the parties agreed to increase defendant's weekly child support payments to $600. This consent order also contained a provision requiring both parties to exchange income information for the years 2007 to 2009.
In the years following the divorce, plaintiff moved to Florida with the three children. There, she worked for a period of time in the real estate title insurance business, but later lost her job as a result of the economic recession. She replaced it with part-time work for $8 per hour, which was not comparable with her prior earnings.
Meanwhile, defendant remarried and had three additional children with his second wife. Also, defendant's annual income increased significantly during that interim period of time. Based on his federal tax filings from 2006 to 2011,1 defendant reported the following earnings:
Defendant never submitted documentation of this increased income to plaintiff. Equally, there is no evidence indicating that plaintiff submitted her 2007 to 2009 income information to defendant.
On July 30, 2012, plaintiff filed a motion to enforce litigant's rights, seeking to enforce the income disclosure provisions in the JOD and consent order.2 This stemmed from plaintiff's suspicion that defendant's income had increased significantly since the time of their divorce, and that as a result, she was due arrearages that had accrued under the JOD, dating back to at least 2003. Defendant opposed plaintiff's motion. In addition, he cross-moved to have their two elder sons emancipated on the basis that they no longer attended school full-time, and no longer lived with their mother.
A Family Part judge later issued an order that required both parties to exchange their respective tax and asset documentation for the years 2007 to 2010. The order also emancipated the parties' sons, and required the parties to attempt to reach a settlement agreement with respect to defendant's child support obligations. The parties were apparently unable to reach such a settlement and consequently sought a hearing before the Family Part addressing these issues.
The parties appeared before the Family Part judge on January 18, 2013. Plaintiff was represented by counsel. She claimed that there was a deficit in defendant's child support payments due to his increased earnings which he never disclosed. Defendant appeared pro se. Although he acknowledged that he had not previously submitted his tax returns, he asserted that plaintiff, too, did not comply with those terms of the court's order. He further argued that despite his increase in annual income, he had financial obligations that significantly limited his available income. Those obligations included his mortgage, costs associated with raising the three children from his current marriage at the same standard of living as his other three children, and college education costs. He also explained that plaintiff, having moved to Florida with their three children, now had a lower cost of living, and urged the court to consider all of these circumstances in rendering its decision. He calculated that if he had underpaid child support at all, at the most, he owed about $42,000.
In his oral decision, the judge noted at the outset that because this was "an above guidelines case," any award of child support was subject to the court's discretion. Citing Winterberg v. Lupo, 300 N.J. Super. 125 (App. Div. 1997), the court explained that it was obligated to find facts under Rule 1:7-4; to provide specific reasons for deviating from the Child Support Guidelines set forth in Rule 5:6A and Current Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX to R. 5:6A; and to analyze and make specific findings with regard to factors set forth in N.J.S.A. 2A:34-23(a) when either deviating from the Guidelines or setting any additional support where the combined net income exceeded the maximum Guideline amount in Appendix IX-F.
In determining the supplemental child support amount i.e., the amount to be paid above the guidelines the judge referenced the four-part inquiry the Supreme Court approved in Caplan v. Caplan, 182 N.J. 250 (2005),3 delineated the factors in N.J.S.A. 2A:34-23(a), and noted that "the main factor is . . . the disparity in income between the parties." In his calculations, the judge noted that defendant paid $600 per month in child support for the three children in his first marriage. The judge used this number to estimate the same contributions for defendant's three children from his second marriage also $600 per month. In total, then, the judge determined that defendant spent $62,400 per year in support of his six children. The judge then deducted this $62,400 from defendant's net annual salary in each year to reach his annual income available for supplemental child support4:
In conjunction with these calculations, the judge explained the court's rationale:
The two most relevant factors here are the parties' disparities of income and the sources of income.
We are already apportioning to her to the wife the income under the calculation with regard up to the net amount of the child support guidelines and we're already giving the children from both marriages the same amount of support.
We do know that above the other dependent amount the defendant actually spends on his three latest children from his new family more than what he spends on the current three children. His income is the sole income for the alternative family.
Although the wife earns far less income than the husband, she did earn some each year.
So under the the court will analyze, then, the what we what we're analyzing it from, we're looking at the Schedule C expenses of the defendant from his Case Information Statement the amount of available for supplemental child support, the fact that he spends more on his current children than . . . the children from this [first] marriage.
The judge then assessed defendant's available income for supplemental child support, based on defendant's reported expenses, and the fact that he spent more on his children from his second marriage than on his children from his first. The court determined that defendant owed:
He then adjusted the total amount giving defendant credits totaling $20,897 due to discrepancies in amounts that he paid in child support in the past, as well as certain credits arising from the emancipation of his two older sons. Consequently, according to the judge, defendant's total child support obligation arrears due to his underpayment for prior years was approximately $117,000. From this total, the judge ordered defendant to pay $17,000 as lump-sum payment toward the net obligation, to be due on May 30, 2013. The remaining $100,000 was to be paid on a weekly basis over the following seven years.
The judge also established child support payments for the parties' youngest child, in the amount of $498.30 per week. That amount was $45.30 above the maximum amount payable pursuant to the Guidelines.5
On appeal, defendant contests the trial court's determination of his supplemental child support amount, and its adjustment of his support obligation going forward. His principal argument is a procedural one that rests upon the assertion that the trial court failed to make required factual findings. Specifically, he argues that "the trial judge noted that this was an above the guidelines case and cited to the N.J.S.A. 2A:34-23(a) factors, . . . but never provided any sort of analysis with respect to these factors." In opposition, plaintiff argues that the judge made sufficient fact findings to justify the child support award. She asserts that the award was reasonable and amply justified by the record, particularly in light of the significant earning disparity between the two parties. We are satisfied from our review of the record that the judge's reasons and explanation sufficiently support and explain the Family Part's order.
By statute, parents are presumptively required to provide for the financial support of their unemancipated children. Pressler & Verniero, supra, Appendix IX-A(1) to R. 5:6A. The statute enumerates several factors to consider in calculating support, including (1) the "[n]eeds of the child"; (2) the "[s]tandard of living and economic circumstances of each parent"; (3) "[a]ll sources of income and assets of each parent"; (4) the "[e]arning ability of each parent"; (5) the "[n]eed and capacity of the child for education"; (6) the "[a]ge and health of [each] child and each parent"; (7) the "[i]ncome, assets and earning ability of the child"; (8) the "[r]esponsibility of the parents for the court-ordered support of others"; (9) the "[r]easonable debts and liabilities of each child and parent"; and (10) "[a]ny other factors the court may deem relevant." N.J.S.A. 2A:34-23(a).
The Supreme Court established presumptive Guidelines, and a corresponding worksheet, to calculate child support. Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 2579. Our court rules prescribe that, except for parents with incomes above the specified high-income threshold, the Guidelines "shall be applied when an application to establish or modify child support is considered by the court." R. 5:6A. "A court may deviate from the [G]uidelines only when good cause demonstrates that [their] application . . . would be inappropriate." Lozner v. Lozner, 388 N.J. Super. 471, 480 (App. Div. 2006) (citing Ribner v. Ribner, 290 N.J. Super. 66, 73 (App. Div. 1996)).
Under the Guidelines in effect on January 18, 2013, "[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 (i.e., income in excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23." Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2561 (2013). "The key to both the Guidelines and the statutory factors is flexibility and the best interest of children." Pascale v. Pascale, 140 N.J. 583, 594 (1995).
"We leave to the trial court's discretion the choice of the methodology to employ in arriving at a child support award when the total income of the parties exceeds the guidelines." Caplan, supra, 182 N.J. at 272. In high-earner contexts, where parental ability to meet the children's basic needs is not an issue, "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);Strahan v. Strahan, 402 N.J. Super. 298, 307(App. Div. 2008). Children from higher earning households "are entitled to not only bare necessities, but a supporting parent hasthe obligationto sharewith hischildren thebenefit ofhis financialachievement." Isaacson, supra,348 N.J. Super.at 580.
In reviewing a trial court's award of child support payments, we accord deference to the Family Part's fact-finding because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). However, we may exercise a more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). We owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Pearl Assurance Co. Ltd. v. Watts, 69 N.J. Super. 198, 205 (App. Div. 1961)).
We may vacate an award if the "trial court clearly abused its discretion or failed to consider all of the controlling legal principles, or . . . the findings were mistaken or . . . the determination could not reasonably have been reached on sufficient credible evidence present in the record." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). If the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (reversing and remanding for a new determination of allocation of college expenses where the Family Court failed to consider all the required factors).
In order to perform our function in a meaningful manner, the judge must "set forth the reasons for his or her opinion." Strahan, supra, 402 N.J. Super. at 310 (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)) (internal quotations omitted). The court must clearly set forth factual findings and legal conclusions for the benefit of the parties and to aid appellate review. R. 1:7-4(a). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). Consequently, we will ordinarily remand to the trial court to make findings of fact if the trial court failed to do so. Gonzalez-Posse, supra, 410 N.J. Super. at 354 (citing Boardman v. Boardman, 314 N.J. Super. 340, 345 (App. Div. 1998)); see also Barnett and Herenchak, Inc. v. State Dep't of Transp., 276 N.J. Super. 465, 473 (App. Div. 1994).
In Loro v. Colliano, 354 N.J. Super. 212 (App. Div. 2002), we considered a trial court's award of specific child support payments. The plaintiff argued, among other things, that the lack of findings by the trial judge was reversible error since the record lacked support for the quantum of support permitted. Id. at 220. Specifically, she asserted that the judge failed to conduct a plenary hearing, and did not make appropriate findings to determine the defendant's income. Id. at 219-20. We disagreed with the plaintiff, although we noted that the judge's findings were "not a paradigm of the findings required by R.1:7-4." We performed "a culling of the text of the orders together with the extended colloquy with counsel over this multi-day oral argument" and found "a sufficient basis for the award entered."
Id. at 220. Ultimately, we concluded that the facts adduced from the record were sufficient to support the award, but "we again urge[d] trial judges that the litigants, counsel and this court, in the event of review, are entitled to clearly delineated and specific findings addressing the statutory factors relevant to any award or modification of child support." Ibid.
Similar to Loro, supra, we affirm the award here because the record indicates that the judge made sufficient and particular findings related to the parties' incomes and to defendant's child support obligation, although not a "paradigm" of the required findings,especially as to all of his children's needs as defined by the family's Schedule C expenses. While the judge's methodology in reaching his award was not explicit, there was enoughinformation inthe recordto parsetogether hiscalculation.
After determining defendant's net income (gross income after taxes), the judge deducted from it defendant's existing child support obligation and an equal amount for his children from his second marriage, totaling $62,400 per year. He then noted from defendant's Case Information Sheet that defendant expended slightly more on his current children than on his children from his first marriage. Examining the "Schedule C" form in the Case Information Sheet that reflected these expenses, the judge apportioned about ten percent of the remaining monies as that which ought to have been paid to plaintiff in those prior years from 2006-11. The portion reflected what the court believed to be an equitable calculation, particularly after considering in detail the relevant income information as well as the parties' existing financial and familial circumstances. The resulting figures varied from about $17,000 to $32,000 in underpaid child support per year, depending on defendant's net income that year. Cumulatively, the total over those six years came out to $117,000, after taking into account credits back to defendant for the emancipation of his two elder sons.
We discern no abuse in the court's discretion in calculating its award based on the totality of the court's findings as stated on the record. The judge established defendant's ability to pay by reviewing the latest records of defendant's income in detail, and noted that his annual income had regularly hovered in the mid-$200,000 to mid-$300,000 range, at least from the years 2006 to 2011. In contrast, he noted that plaintiff had lost her job and had returned to work, though only on a part-time wage basis. That, coupled with the fact that she had primary custody of the children, placed a greater emphasis on the importance of this income differential. The judge also considered the parties' circumstances, including the fact that plaintiff had voluntarily left the State, and moved to Florida with the children, a location that had a lower cost of living. Moreover, the judge factored into his determinations defendant's current circumstances in supporting his three other children in his second marriage.
Also, the judge did not abuse his discretion in ordering that defendant first make a lump sum payment of $17,000 towards his arrears, and then spreading the remaining payments over the course of the next seven years on a weekly basis. The parties initially disagreed with the time frame in which to make those payments, and the judge ultimately accommodated defendant's wishes to spread them out long enough until the parties' youngest child graduated from college. Notably, defendant did not object to the payment arrangement.
Finally, in reaching defendant's remaining child support obligations for the parties' youngest child, the judge noted that under the Guidelines, defendant was obligated to pay a minimum of $453 per week. Here, too, the judge estimated a ten percent increase as the proper proportion to be added on to the award as supplemental child support. Consequently, the judge arrived at $498.30 as the weekly payment, a figure that was consistent with his previous analysis for defendant's overall child support obligation.
In sum, although the judge did not make explicit certain steps in his analysis toward reaching the final child support amounts, he provided sufficient information to explain how he calculated the amount for us to perform our review. We are satisfied from our review that the court's order was not "manifestly arbitrary, unreasonable or contrary to the evidence." Loro, supra, 354, N.J. Super. at 220.
1 The record does not indicate defendant's 2012 or 2013 income.
2 Plaintiff's motion only referenced the JOD's income disclosure provisions. However, the consent order is also implicated because it modified those terms.
. . . [F]irst, determine the reasonable needs of the children; second, before allocating the appropriate share between the parties, consider . . . the ability of the parties to earn income; third, upon determining the respective percentages that each party's net . . . income bears to the total of their combined income, apply those percentages to determine each party's share of the maximum basic child support guideline award for . . . [the] children; [and] fourth, subtract the maximum basic child support from the court-determined amount of the reasonable needs of the children to determine the remaining support to be allocated between the parties.
[Id. at 262, 271.]
4 Some of the values are "rounded off."
5 The maximum amount under Guidelines is $453 per week.