KIM K. BROWN v. PETER M. BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3380-12T1

KIM K. BROWN,

Plaintiff-Respondent,

v.

PETER M. BROWN,

Defendant-Appellant.

________________________________

January 22, 2014

Argued January 8, 2014 Decided

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-25-98.

James F. Gellman argued the cause for appellant (Gellman Law Offices, LLC, attorneys for appellant; Mr. Gellman, on the brief).

Kim K. Brown, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, defendant appeals from several orders of the Family Part1 setting his child support obligations and ordering him to pay counsel fees and other expenses. We affirm.

The parties were married in March 1995, separated in March 1997, and divorced in June 1998. They have a son, who is now eighteen years old.

In their Property Settlement Agreement (PSA), the parties agreed to share joint custody of their son, with plaintiff serving as the parent of primary residence (PPR). According to the PSA and the child support worksheet attached to it, defendant was required to pay plaintiff $205 per week in child support by direct payment, rather than through the probation department. The child support calculation included "daycare/babysitting" expenses for the parties' son. The PSA stated that "[c]hild support shall be modified every three years on May 1st or sooner if there is a substantial change [in] circumstances." Over the next fourteen years, however, neither party filed an application to modify child support.

In mid-2012, the parties' son began living with defendant. On August 2, 2012, Judge James Farber entered an order granting temporary physical custody of the child to defendant.

In October 2012, plaintiff filed a motion to enforce litigant's rights.2 Plaintiff sought to establish her obligation to pay child support for the parties' son moving forward. She also asserted that defendant was over $32,000 in arrears on child support and she asked that a judgment be entered against him to secure payment. Finally, plaintiff requested that defendant be required to contribute toward the child's medical expenses and that defendant pay her counsel fees on the motion.

Defendant responded by filing a cross-motion seeking a retroactive modification of his child support obligation. Defendant alleged that plaintiff's actual work-related child care expenses were lower than the amount used in the child support calculations in 1998. In addition, defendant stated that, when the child began attending public school, daycare was provided to him free of charge. Defendant asserted that plaintiff "disingenuously" continued to accept the full amount of support, including the component relating to child care expenses. As a result, defendant estimated that, since 1998, he paid "approximately $42,000" for daycare expenses that were not actually incurred by plaintiff. Defendant asked that this amount be subtracted from any arrears he owed to plaintiff and that a judgment be entered against plaintiff for any remaining difference.

On December 21, 2012, Judge Farber conducted a lengthy oral argument on the competing motions, made detailed findings of fact, and issued two orders addressing the parties' contentions. The judge granted plaintiff's motion to establish her child support obligation effective August 2, 2012, the date defendant became the PPR. However, because defendant had failed to submit a case information statement (CIS), the judge ordered that he do so within twenty days so that a calculation could be made.

The judge determined that defendant was required to pay the child support arrears he accumulated prior to August 2, 2012, but he disagreed with plaintiff that the calculation should include unpaid support from as far back as 1998. The judge explained:

The Court with regard to arrears, and this applies to this and the issue of the child care, is loath to go back more than five years because the difficulty a party would have, and that's either party, in being able to come up with the proofs going back more than five years. Even five years could be potentially problematic, but we start with that.

Plaintiff provided spreadsheets setting forth the dates on which she alleged defendant failed to pay support. The judge permitted defendant to supply proof that he had paid support on those dates so that his arrears could be calculated.

Without prejudice, the judge denied defendant's request that plaintiff reimburse him for work-related child care expenses included in the child support worksheet that he alleged were not actually incurred. The judge stated:

[Defendant] provides unsubstantiated claims as to the overpayment of daycare. He provides a time sheet of payments that he allegedly made, but provides no proof of actual payment or that [the parties' son] was not enrolled in daycare at [plaintiff's] expense. Also, for the same reasons as I did with regard to the child support arrears, how would we ever expect her to go back nine or ten years and find the documentation to support it.

At some point[] there has to be some kind of laches on these things. And I find that what he's asking for is beyond the pale.

Nevertheless, the judge gave defendant the opportunity to "provide proofs" regarding his claim for the court's consideration.

The judge ordered defendant to reimburse plaintiff for certain medical and other expenses she had paid on the child's behalf. The judge also stated that defendant would be obligated to pay counsel fees in an amount to be determined after defendant supplied his CIS.

Defendant thereafter filed a motion for reconsideration and plaintiff filed a cross-motion that included, among other things, a certification of her attorney's services. Again, Judge Farber conducted oral argument, made thorough findings of fact, and entered two orders on February 8, 2013 resolving the parties' claims.

Based upon the financial information submitted by both parties, the judge determined that, effective July 15, 2012, plaintiff's child support obligation was $162 per week. However, he also determined that defendant owed plaintiff $23,088 in unpaid child support incurred prior to that date. In so ruling, the judge considered the documentation, including canceled checks, submitted by the parties and he prepared detailed spreadsheets listing the amounts defendant had failed to pay between 2008 and 2012. Because plaintiff was owed over $23,000 in arrears, the judge determined that she would get a $162 per week credit toward her child support obligation "until the arrears are wiped out or until [the parties'] son is emancipated, at which point we'd have to reconsider it. . . ."

The judge denied defendant's request that plaintiff be required to reimburse him for the work-related child care component of his child support obligation for any weeks she did not actually incur these costs. The judge stated:

The Court finds that defendant has not met his burden to show that plaintiff has not - - was not being charged for childcare while defendant paid the full child support amount of [$888 per month]. The Court at oral argument [on December 21, 2012] indicated to the parties that it was not inclined to go back to child support payments before January 1, 2008 as to require plaintiff to provide proofs of daycare would be difficult.

. . . .

Furthermore, with regard to the childcare, the Court finds that plaintiff is correct, that if [defendant] had requested modification years ago due to the reduction or elimination of work[-]related childcare, the entire amount may have been recalculated and produced a different or higher or lesser number. Under current incomes, for example, if [defendant] was the - - if he was the non-custodial parent, he would be paying $259 per week without childcare, significantly more than the $888 [per month] contemplated by the judgment of divorce. Certainly, the Court does not have the requisite information to grant him back his childcare.

In a separate order issued on February 25, 2013, which was supported by a detailed written statement of reasons, Judge Farber granted plaintiff's request for $3500 in counsel fees. This appeal followed.

On appeal, defendant alleges that, beginning soon after the divorce, plaintiff did not incur the work-related child care expenses that were included in the support calculation and that plaintiff fraudulently withheld this information from him. Therefore, he argues that the judge erred in denying his request for a retroactive modification of his child support obligation. Defendant also contends that the judge erred in requiring him to pay counsel fees and other expenses. We disagree. Having considered defendant's arguments in view of the record and the applicable law, we affirm substantially for the reasons expressed by Judge Farber. We add only the following brief comments.

The scope of our review of the Family Part's order is limited. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we 'should not disturb the factual findings and legal conclusions of the trial judge unless . . . 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' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We will only reverse the judge's decision when it is necessary to "'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Defendant's arguments concerning the amount of his child support arrears and the requirement that he contribute to plaintiff's counsel fees and other expenses incurred on behalf of the child, in light of the record, reveal nothing "so wide of the mark" that a clear mistake was made. Ibid.

Although the judge found that defendant did not supply adequate proofs to support his request for a retroactive adjustment of his child support obligation based on his claim that plaintiff did not incur work-related child care expenses, there was a more basic reason for denying defendant's request. In pertinent part, N.J.S.A. 2A:17-56.23a provides that "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification . . . ." Therefore, defendant's request for a retroactive modification of his support obligation was plainly barred. In addition, we are not persuaded by defendant's claim that plaintiff fraudulently withheld her work-related child care expenses from him or that any equities exist that would require deviation from the clear mandate of the anti-retroactivity law. In the fourteen years during which plaintiff acted as the PPR, defendant never sought a modification of his support obligation, even though the PSA provided that support could be revisited every three years.

As for the balance of defendant's arguments, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

A

1 The orders were filed on December 21, 2012, February 8, 2013, and February 25, 2013.

2 Although the parties' respective motions sought multiple forms of relief, we summarize only the requests that are at issue on appeal.