EDWARD KOZLOVSKY v. IRINA RUBANCHIK (f/k/a IRINA KOZLOVSKY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

APPELLATE DIVISION

DOCKET NO. A-0

EDWARD KOZLOVSKY,

Plaintiff-Respondent,

v.

IRINA RUBANCHIK (f/k/a IRINA

KOZLOVSKY),

Defendant-Appellant.

___________________________________

November 10, 2016

Submitted December 14, 2015 Decided

Before Judges Simonelli and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2139-04.

Law Offices of Jef Henninger, attorney for appellant (Mr. Henniger, on the brief).

Law Offices of Kelly Berton Rocco, attorney for respondent (Ms. Berton Rocco, of counsel; Ms. Berton Rocco and Faudia A. Hameed Clemenza, on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

In this matrimonial matter, defendant Irina Rubanchik1 appeals from February 7, February 19, and March 25, 2014 post-judgment of annulment orders concerning modification of child support and attorney's fees and costs. For the following reasons, we affirm the child support modification and attorney fees and costs award, but reverse and remand as to the effective date of the adjustment.

After a short four-month courtship, the parties were married in November 2003. They resided in New Jersey, where plaintiff Edward Kozlovsky was serving his medical residency as an oral maxillofacial surgeon. In late March 2004, however, they separated and Irina moved back to her home state of Florida.

On December 5, 2004, Irina gave birth to the couple's daughter, G.K.2 On December 23, the court entered a judgment of annulment. The judgment required Edward to pay Irina, in six installments, a sum of $15,000 in "full satisfaction" of her claims "for support, maintenance, medical insurance, medical expenses, or distribution of property." It also provided for joint legal custody of G.K., with Irina designated as the primary residential parent, and Edward afforded parenting time as they may arrange. The parties agreed to $200 per week of child support for the first year of G.K.'s life, and thereafter, payments were to continue in accordance with applicable child support guidelines. Through his employment, Edward was obligated to provide G.K.'s medical insurance. If coverage was not available through Edward's employer, Irina was to provide the coverage if offered through her employer. If neither party's employer-provided coverage, they would share the expense in proportion to their incomes. Edward was also required to maintain his employer provided life insurance designating G.K. as beneficiary. Irina was obligated to do the same, if her employer provided life insurance coverage.

Following the annulment, Irina decided not to work, choosing to take care of G.K. and her mother, and homeschooling her sister's children. When G.K. became of school age, Irina decided to homeschool her. Edward earns his living as a dentist, specializing in maxillofacial surgery. An extensive motion practice ensued.

On February 1, 2007, following Irina's motion and Edward's cross-motion, the Family Part issued an order pertaining to custody, child support, parenting time, medical insurance coverage, and dependent deduction and child care credit for income tax purposes. After both parties sought reconsideration, the court denied their requests, with the exception of a slight reduction of Edward's child support and granting Irina's request to require Edward to obtain prescription drug coverage for G.K. We affirmed the court's orders in an unpublished decision. Kozlovsky v. Kozlovsky, No. A-4602-06 (App. Div. Nov. 24, 2008) (slip op. at 20).

Over the next five years, the court decided numerous motions regarding child support, visitation, parenting, schooling, extra-curricular activities, and life insurance. On February 1, 2012, Irina moved to increase child support, reimburse for child related expenses, increase of plaintiff's life insurance, terminate or lower the amount of income imputed to her, and declare Edward violated her litigant's rights. Edward responded with a cross-motion regarding the same issues. On October 1, 2012, the court entered an order staying all proceedings, including Irina's request to increase child support, in order to give Florida courts the opportunity to address "the issue of custody and parenting time."

On March 1, 2013, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95, the court ordered that New Jersey courts have exclusive jurisdiction as to child support, with Florida having jurisdiction over issues of custody and parenting because that state would be a more convenient forum. Florida accepted jurisdiction over custody and parenting in an order entered April 2, 2013.

The parties' subsequent motions culminated with the orders being challenged before us. On August 15, 2013, Irina submitted a motion seeking, in pertinent part: 1) an upward modification of child support retroactive to February 1, 2012, the date of her original motion; 2) termination of Edward's loan deduction from his gross income for the purposes of calculating child support; 3) an increase in Edward's life insurance obligation; and 4) the termination or reduction of the annual income of $30,970 imputed to her for child support calculation. Irina also sought a motion fee waiver based on indigency, Rule 1:13-2(a).

On September 25, 2013, Edward opposed Irina's motion and filed a cross-motion to: 1) find Irina in violation of litigant's rights for failure to provide proof of her $150,000 life insurance policy for the benefit of G.K. and copies of her last three years of tax returns and last three paystubs, as required by an October 6, 2009 order; 2) sanctions against Irina for violating court orders, filing frivolous motions, and fraudulent certifications; and 3) order Irina to pay his counsel fees and costs. Edward's cross-motion was converted to a motion after Irina's motion and fee waiver request were returned to her unfiled because she failed to provide the required proofs to support her fee waiver request. Irina re-submitted her motion on October 15, 2013, which was treated as a cross-motion.

On February 7, 2014, following argument, the motion judge entered a uniform summary support order and two companion orders. Collectively, these orders raised Edward's child support obligation to $342 per week as of October 15, 2013, and granted Edward's requests to hold Irina in violation of litigant's rights, awarding him $5,860.30 in counsel fees and costs. A supplemental sua sponte order was entered on February 19, continuing "all provisions of the [] February 7, 2014 [o]rders" but setting forth further findings concerning Irina's "bad faith" acts in failing to provide appropriate documentation concerning reimbursements for extracurricular activities, failing to notify Edward of new extracurricular activities and related expenses before accruing the expense, and preventing parenting time between Edward and the child. Another supplemental sua sponte order was entered on March 25, when the judge corrected the calculation of imputed income to Irina from the erroneous $100,000, to $75,000, increasing Edward's weekly child support obligation by one dollar to $343.

II.

We distill Irina's arguments on appeal to three issues. First, she contends that the child support award was incorrectly calculated. Specifically, the court's imputation of $75,000 annual income to her was unsupported by the record and was a disputed issue of material fact that necessitated a plenary hearing. She also argues that the trial court's deduction of $1,005 from Edward's adjusted gross income for education and business loans was an unreasonable debt and not in the best interests of the child. Second, Irina maintains that her outstanding motion for increased child support filed on February 1, 2012, remained unresolved, and therefore the court misapplied the law governing retroactive modification when it increased child support retroactive to October 15, 2013, the date her cross-motion was filed. Third, she attacks the attorney's fee award on the grounds that the trial court increased her child support, and did not make findings to support the sanction. We are not persuaded.

The scope of our review of the Family Part's orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's findings of fact based on adequate, substantial and credible evidence in the record, understanding the court's special expertise in family matters. Id. at 412-13; MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). No special deference is accorded to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); however,

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).]

Child support may be revised when the party seeking modification satisfies the burden of showing a change of circumstances from those defined in an existing order. See N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 157 (1980); Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). A determination of the parents' income is crucial to determining a fair child support award. Caplan v. Caplan, 182 N.J. 250, 265 (2005). A trial court can impute income to a parent if it finds that parent is voluntarily unemployed without just cause. Ibid.; see also Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992). The imputation of income is a decision left to the sound discretion of the trial court that is "not capable of precise or exact determination[,] but rather require[es] a trial judge to realistically appraise capacity to earn and job availability." Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015) (quoting Gnall v. Gnall, 432 N.J. Super. 129, 158 (App. Div. 2013)).

We find no error in the trial judge's discretionary decisions to impute $75,000 annual income to Irina and deduct $1005 per month for education and business loans from Edward's income. Defendant's employment history as an insurance broker prior to her marriage showed annual earnings ranging between $75,000 and $100,000. The judge chose to impute the lower amount, and followed the prior ruling that Irina's decision not to work in order to homeschool the children and take care of her mother was voluntary. There is nothing unreasonable about the loans Edward needed to pay for his education and to establish his dental practice. The loans obviously enhance his earning potential, and in turn, benefit his daughter. These decisions are soundly supported in the record.

In addition, we conclude there was no error in the court's resolution of child support without a plenary hearing. A plenary hearing must be conducted on a motion to modify support when there are genuine issues of material fact that bear on a critical question. Lepis, supra, 83 N.J. at 159; Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.), certif. denied, 187 N.J. 81 (2006); Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). A trial judge may not resolve material factual disputes, including credibility determinations, arising in the parties' conflicting affidavits and certifications; instead, when a genuine issue of fact is raised by the parties' respective assertions, a plenary hearing must be held. Tretola v. Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006).

Here, there were no material factual disputes that required a plenary hearing. Prior to the present controversy, it was decided by the trial court and affirmed by us, that there was no valid reason for Irina not to work and income should be imputed to her in determining child support. Kozlovsky, supra, No. A-4602-06 (slip op. at 16-17).3 The court's current decision to continue to impute income to Irina was based upon the same facts that were considered previously. Furthermore, the increase of the amount of income imputed to Irina more accurately reflected her earning potential based on her undisputed prior wages. There were also no factual disputes involving Edward's educational and business loans which had also been previously addressed and affirmed by us. Id. at 10-13. The motion papers and argument adequately addressed these issues. Accordingly, we have no concern that the court determined child support without a plenary hearing.

On the other hand, we part company with the judge's decision regarding the effective date of the child support increase. The judge rejected Irina's request to make the child support order retroactive to February 1, 2012, the date she filed a prior motion to modify child support. The judge determined that there was no outstanding motion that was filed on February 1, 2012, because on March 1, 2013, an order by a different judge, lifted a stay of the proceedings and determined child support would be resolved in New Jersey courts. The judge was incorrect in finding defendant sat on her rights until she filed a cross-motion on October 15, 2013, to increase child support. Irina's filing on February 1, 2012, sought an increase in child support, but it was not addressed when it was determined on March 1, 2013, that New Jersey had jurisdiction over child support issues.

The record clearly reveals that when Irina filed her October 15, 2013 cross-motion, she explicitly requested that the increase be retroactive to February 1, 2012, the date she previously moved for an increase. Since the court never determined Irina's initial request for increased child support, it was an abuse of discretion not to make February 1, 2012, the effective date of the child support increase.

Lastly, an award of counsel fees in a matrimonial action is controlled by Rule 5:3-5(c) and N.J.S.A. 2A:34-23. When reviewing an application for counsel fees, the court must "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-2. In a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and refers to Rule 5:3-5(c), which provides that a court should consider the following factors

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

In addition, while the financial circumstances of the parties is a very significant factor, if a party is found to have acted in bad faith, relative economic positions have less relevance. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).

Applying these principles, we are satisfied that the judge correctly awarded counsel fees and costs to Edward based on Irina's bad faith in violating court orders. The award was supported by the record, and did not constitute an abuse of discretion nor a clear error in judgment. See Colca v. Anson, 413 N.J. Super. 405, 422 (App. Div. 2010).

Affirm in part, reversed and remanded only as to the effective date of the February 7, 2014 child support order.

1 We use first names throughout this opinion for ease of reference. We intend no disrespect in doing so.

2 We use initials in order to protect her identity. In addition, we note that the child took her father's last name based upon a name change application authorized by a court order when she was almost three years old.

3 Citing an unpublished opinion is permissible in accordance with Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).