SUSAN DiPAOLO v. ETIENNE DiPAOLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SUSAN DiPAOLO,

Plaintiff-Appellant,

v.

ETIENNE DiPAOLO,

Defendant-Respondent.

_______________________________

July 28, 2016

 

Submitted April 25, 2016 - Decided

Before Judges Lihotz and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-862-04.

Susan DiPaolo, appellant pro se.

Vella, Singer and Martinez, P.C., attorneys for respondent (Maureen E. Vella, of counsel and on the brief; Lisa M. Leili and Jillian E. Madison, on the brief).

PER CURIAM

Plaintiff Susan DiPaoloappeals from provisions in three post-judgment Family Part orders. The first, filed on November 18, 2014, concluded defendant Etienne DiPaolo met his burden by showing a prima facie change in financial circumstances requiring a review of his child support obligation. The order also required financial and other disclosures be submitted to recalculate support. The second order, filed on January 16, 2015, reduced defendant's child support obligation, after considering defendant's representations of his earnings and imputed income to him at a lower amount than the sum imputed at the time child support was calculated. The third order denied in part plaintiff's requests for reconsideration of the January 16, 2015 order.

On appeal, plaintiff argues the orders addressed to child support and related expenses for the parties' child must be vacated because material facts regarding defendant's physical and financial circumstances were disputed, necessitating a plenary hearing. She also argues the judge erroneously reviewed defendant's financial information ex parte, maintaining she was entitled to income tax documents in discovery. She further argues the judge failed to impose defendant's obligation for medical, health and college costs. Finally, she challenges the imposition of a newly imposed obligation regarding the St. Croix realty, raised in defendant's reply certification. Following our review, we affirm in part and reverse and remand in part.

The parties were divorced by a final judgment of divorce (FJOD) filed on May 16, 2005. Years later, when their only child reached age eighteen, defendant ceased providing child support as ordered, and, thereafter, moved to terminate his support obligation. More specifically, defendant certified the child desired to share his time with both parents and "reside in both houses" equally all year round. He attached a prior Case Information Statement (CIS), submitted after the complaint for divorce was filed in August 2004, along with the prior child support calculation; he did not file any current financial information.

Plaintiff opposed the motion, and filed a cross-motion for enforcement of litigant's rights seeking to require defendant to contribute to the cost of the child's college education, car insurance and maintenance, and medical and counseling expenses. Plaintiff refuted the suggestion the child spends half his time living with defendant and asserted defendant's request to modify parenting time unfairly placed the child in the middle of the dispute that was solely designed to reduce his obligation to provide support. Plaintiff asserted the child denied any desire to spend half his time in defendant's home and instead suggested visitation with defendant occur on Monday and Wednesday nights.

Plaintiff also challenged defendant's limited income disclosure, asserting he was a self-employed contractor, owned multiple businesses, and also worked for his wife, as a customer services representative, as noted on her business website. Plaintiff attached prior documentation showing defendant's income disclosures made at the time of the divorce were challenged as suspect and the parties settled the issue by agreeing to impute $70,000 per year to defendant.

Included among plaintiff's requests were enforcement of equitable distribution provisions in the FJOD, payment of unpaid past and continued future child support, and reimbursement of defendant's proportionate contribution to itemized expenses incurred for the child. Plaintiff also sought an award of counsel fees and costs.

In a reply certification, defendant attached a one sentence printed statement, addressed to the judge and signed by the child. The uncertified document, dated contemporaneously with defendant's certification, said "I . . . love both my parents and would like to live with them equally."

Regarding child support, defendant stated his income had significantly decreased from the amount imputed to him at the time of divorce. He asserted his home improvement contracting work ceased operations in December 2009 after a significant decline, and characterized that business as a "disaster." Defendant alleged physical injuries impinged on his continued manual labor, attaching an uncertified letter from a recent doctor's visit, which was prepared after the motion was pending. However, defendant remained self-employed later starting a new limited liability company (LLC) on April 1, 2008. Defendant averred he worked as a kitchen cabinet distributor. He attached his alleged Schedule Cs, reporting gross receipts of $12,550 in 2012 and $11,128 in 2013. Defendant refuted plaintiff's assertions he worked for his wife, alleging inclusion of his picture and a title on her website was "a joke."

For the first time, in his reply, defendant sought plaintiff's contribution toward unpaid assessments due on real property owned by the parties in St. Croix. Notably, plaintiff's cross-motion asserted the FJOD required defendant to sell this realty to pay for their son's higher education in 2006. Defendant sought to retain the realty, anticipating an increase in market value. Defendant also interjected his demand for an award of counsel fees and costs.

Plaintiff's reply to the cross-motion was not considered by the court. SeeR.1:6-3(b) ("No reply papers may be served or filed by the cross-movant without leave of court.").

In a written statement of reasons attached to the November 14, 2014 order, the motion judge set forth the basis supporting the twenty-two paragraph November 18, 2014 order. We recite only the provisions relevant to the issues on appeal.

As to defendant's motion, the judge declined to impose a parenting time schedule, after concluding the parties' child was old enough to determine the time he would spend with each parent. Regarding child support, he denied defendant's request to terminate support based on the alleged equal parenting; however, he found defendant's prima facie proofs sufficiently showed changed financial circumstances, warranting review of his support obligation. He found defendant certified his annual income was approximately $31,000 and plaintiff had not submitted proof of her income.1 The parties were ordered to submit current proof of income, paystubs, W-2s, tax returns and completed CISs to allow a final support calculation. Plaintiff was ordered to contribute half of the unpaid taxes and assessments of real property the parties owned located in St. Croix.

As to plaintiff's cross-motion, her request to require disclosure of defendant's spouse's income was denied along with her request defendant contribute to proposed counselling expenses for the child, car insurance and college costs. Plaintiff's motions for enforcement of various equitable distribution provisions and enforcement of defendant's ordered obligation to contribute to the child's dental and vision expenses for the period 2009 to 2012, as required by the FJOD, were denied, after the judge concluded laches barred payment; defendant was ordered to pay his pro rata share of dental and eye expenses incurred after 2012. The application to enforce child support was determined moot after defendant provided all current payments prior to the final hearing. Plaintiff's request for contribution to college costs was denied as not properly supported. Finally, each party's request for an award of counsel fees was denied.

The supplemental submissions were filed. The matter was reviewed on January 16, 2015, without further hearing.

Plaintiff urged the court to impute income to defendant as a construction manager, based on his abilities as she recited. She also noted his claims of limited income were refuted by the amount of claimed expenses, which exceeded $75,000 per year; his lifestyle, including a recent two-week trip to Italy (requiring the initial motion return date be adjourned); his ownership of significant assets, including two business construction trailers and equipment shown in photographs as parked in front of his house, suggesting current use; his real estate investment; and past conduct demonstrating he was not forthcoming in his financial disclosures. Plaintiff attached a completed CIS, her October and November 2014 pay stubs, 2013 federal and state income tax returns, and her 2013 W-2.

Defendant challenged the assertions by plaintiff regarding his finances. He attached checks in varying amounts, ranging from $1750 to $150, payable to himself from his LLC, and company bank statements showing deposits and debits from January 1, 2013 through December 31, 2013 and January 1, 2014 to November 30, 2014. A redacted income tax return for 2013 included a completed Schedule C, which is not the same as the 2013 Schedule C attached to defendant's reply certification, initially supplied to the court during the November 14, 2014 motion hearing. In addition to Schedules B and D that listed interest, dividends and capital gains claimed to belong to defendant's spouse, the return included Schedule E, which listed seven rental properties with the rental income generally redacted.

The judge's written statement of reasons explains his findings that defendant suffered a decrease in income, was not disabled, and was underemployed, justifying imputation of income as a retail construction industry salesperson. No additional rental income was utilized after the judge accepted defendant's representations rental expenses exceeded rental receipts. The judge utilized a Child Support Guidelines worksheet, seeChild Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R.5:6A (2016) at www.gannlaw.com (Guidelines), allocating 182 overnights to defendant, and reduced his support from $795 per month to $47 per month.

A January 26, 2015 order corrected an error in the calculation of plaintiff's income. Accordingly, defendant's obligation for child support was increased to $86 per month. This appeal ensued.

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).]

We distill plaintiff's arguments on appeal to three main issues. First, she disputes the amount of time the child spends in defendant's home, arguing the erroneous use of 182 overnights resulted in an incorrect amount of child support. Second, she maintains the judge erred in denying her request for a plenary hearing to determine materially disputed facts including defendant's income and earning ability for the purpose of calculating child support, college costs and other items of support. Third, she attacks other provisions addressed to imposing or relieving financial obligations set forth in the FJOD.

Unfortunately, the child has been interjected into this litigation, yet it is unclear whether his position was communicated. Certainly, the child has a relationship with both plaintiff and defendant and spends time with each. Defendant's motion for support modification was prospective in its application; defendant stated he believed the child desired to live with him half the time. Nothing in defendant's pleadings shows the child actually stayed with defendant for that period. Plaintiff, although disputing defendant's suggestions the child desired to spend more time with him, agreed the parties' son was old enough to decide for himself. The one-line statement from the child defendant included in his reply certification also suggests a prospective desire to split time. Even the child's confidential letter submitted following the initial hearing did not suggest a schedule, but a freedom to decide.

Based on this evidence, the judge correctly noted neither party provided any detail of exactly when the child has been cared for in his or her home. In this light, we cannot agree the judge abused his discretion in concluding defendant should be credited with 182 overnights when calculating child support. More important, if plaintiff is correct and defendant does not exercise the suggested level of parenting time, she has a remedy.

The Family Part is given expansive authority regarding custody and parenting time orders. Specifically, Rule5:3-7(a) lists the available relief, which may be imposed, singularly or in combination, upon a "finding that a party has violated an order respecting custody or parenting time." A reviewing judge, who makes such a finding, is authorized to impose "economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent's failure to appear for scheduled parenting time or visitation . . . incurred by the other parent." R.5:3-7(a)(2). Certainly the rule suggests a purpose to prevent one party from thwarting parenting time, but its terms are not so limited. There are direct and measurable economic consequences to parenting time awards. Therefore, no child should be penalized when a parent fails to fulfill his or her obligation.

Here, knowing defendant has received a reduced child support obligation because he proposes to provide for the child 182 overnights per year, upon a demonstration that he has not substantially fulfilled that responsibility, the court is authorized to impose a monetary sanction, representing the amount of support defendant should have provided based on the actual time he provided care for the child, as well as a modification of future child support using the actual parenting time.2

We turn to consider whether plaintiff is entitled to a plenary hearing on defendant's motion for reduction of child support. Plaintiff seeks a plenary hearing to determine whether defendant experienced a substantial change in circumstances triggering review and possible modification of child support. She also challenges the level of income he receives or, alternatively, that should be imputed to him. We conclude the judge was mistaken when denying her request for a plenary hearing. This record reflects disputed material facts, such that the parties should have been given a brief period for discovery and, absent an agreement, the opportunity to present the matter at a plenary hearing.

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. SeeN.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). Significant changes in income or earning capacity of either spouse may result in a finding of changed circumstances. W.S. v. X.Y., 290 N.J. Super.534, 539-40 (App. Div. 1996).

In this matter, defendant's motion was not premised on a change of financial circumstances. Rather, he believed the child wanted to split his time between his parents so his obligation to provide support should be eliminated. Defendant's claim of alleged financial hardship was only raised in his reply certification, not his initial motion.

"When the movant is seeking modification of child support, the guiding principle is the 'best interests of the children.'" Lepis, supra, 83 N.J.at 157 (citing Hallberg v. Hallberg, 113 N.J. Super.205, 209 (App. Div. 1971)). In this case, defendant bears the burden of proof. Ibid.

Here, not only was defendant's motion deficient because the only financial information provided was his 2004 CIS, but, importantly, he released the more detailed financial documentation in his reply, which plaintiff was not permitted to challenge.3 This contorts the process by minimizing the moving party's burden of proof and limiting the responding party's ability to challenge facts presumed to support relief.

Rule5:5-4(a), which specifically requires a moving party to provide the court with his or her complete "current [CIS] and the [CIS] previously executed or filed in connection with the order, judgment or agreement sought to be modified." The mandate for financial disclosure by the moving party "is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super.250, 253 (App. Div. 1991).

The judge correctly noted defendant's pleadings provided no evidence of an inability to work. Frankly, other than conclusory comments and statements of his earnings, defendant offered no explanation of why he was unable to earn the level of income imputed at the time of divorce.

Plaintiff's response challenged defendant's credibility. She highlighted his 2004 CIS and Social Security earnings did not match her forensic accountant's review of defendant's business income or the level of income he agreed to accept in the FJOD for the same year. She supplied information regarding defendant's business interests, including a 2014 email he sent from a business known as "ICF Construction," a concrete pumping business. She described his work experience and supplied photographs of his construction trailers and tools parked in front of his house. She also identified his rental real estate and suggested he held other assets he failed to disclose.

"Certainly, the court is authorized to impute income for the purpose of determining child support when a parent is found to be voluntarily unemployed or underemployed without cause." Elrom v. Elrom, 439 N.J. Super.424, 434 (App. Div. 2015). However, the determination to the level of imputed income is unsupported by this record.4

A parent's ability to earn income, or "his [or her] human capital," should be "theoretically activated for the purpose of evaluating his [or her] support obligation" and the amount of income that "should be imputed to him [or her]." Caplan v. Caplan, 182 N.J.250, 270 (2005).

"'In treating the matter of support, our courts have always looked beyond the [parent's] claims of limited resources and economic opportunity. They have gone far to compel a parent to do what in equity and good conscience should be done for [the] children.'" Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.) (quoting Mowery v. Mowery, 38 N.J. Super.92, 102 (App. Div. 1955), certif. denied, 20 N.J.307 (1956)), certif. denied, 81 N.J.52 (1979). Thus, a "'court has every right to appraise realistically [a] defendant's potential earning power,'" ibid.(quoting Mowery, supra, 38 N.J. Super.at 102), and examine "potential earning capacity" rather than actual income, when imputing the ability to pay support. Halliwell v. Halliwell, 326 N.J. Super.442, 448 (App. Div. 1999).

[Elrom, supra, 439 N.J. Super. at 435 (alterations in original).]

These guideposts are restated in the Guidelines which state imputation of income should be

based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL)[.]

[Child Support Guidelines, supra, Guideline 12, www.gannlaw.com.]

Another principle applicable here is "'what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor,' . . . who is 'in a better position to present an unrealistic picture of his or her actual income than a W-2 earner.'" Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super.17, 23 (App. Div. 2006)).

In this matter, the judge chose to impute income to defendant as a retail construction industry salesperson. There is no evidence to suggest this category matches defendant's current occupation or skill level. Frankly, defendant reveals little about what he does, how he obtains work, his level of skill and experience and how he is paid. There is no evidence in this record to show defendant's skills, range of expertise,past employment experience or other facts necessary to discern his earning ability.

We identify a serious concern that impacts defendant's credibility, which we cannot overlook as a basis to conduct a plenary hearing. Defendant submitted two very different 2013 Schedule Cs: one, apparently prepared for the initial motion and not filed with the Internal Revenue Service (IRS), although represented as such, and another certified by defendant's accountant as the document filed with the IRS. Defendant's submitted Schedule C reported his gross receipts as a mere $11,127, while the return attached to the accountant's certification reflects gross receipts of $58,151 and net income of $11,127. Perhaps one might argue the final result is the same. They are not. In our view, this sleight of hand lends credence to plaintiff's challenges to defendant's candor and weighs heavily in favor of a need for discovery and a plenary hearing.

The next challenge marshalled by plaintiff to attack defendant's credibility results from the apparent contradiction in his claims of inability to earn income. Defendant paid $795 monthly in child support until the child reached age eighteen, despite claims he suffered a debilitating injury and loss of business income long before that date. In fact, the issue of changed financial circumstances was not advanced by defendant in his initial motion and appears in his reply as an afterthought. She also successfully argues she may challenge how defendant meets the monthly needs he certified in his CIS. If defendant's expenses are entirely satisfied by others, imputed income may be entirely available to provide for the needs of the parties' child.

Also, the facts surrounding ownership and acquisitions of these seven rental properties listed on defendant's joint tax return is muddled. Although defendant argues the expenses associated with the property outweigh the income received, some expenses permissible for tax purposes are not out of pocket costs, but "paper deductions," such as depreciation and loss carryovers. Because the court has an obligation to look beyond earned income and consider other sources of income and assets when considering an obligor's ability to pay child support, Bonanno v. Bonanno, 4 N.J.268, 275 (1950), defendant's interest in this realty may be examined.

We do not agree the trial judge erred in allowing defendant's joint tax return to be redacted. "Such a protective procedure will preserve defendant's present wife's legitimate expectation of privacy in the return and furnish plaintiff with the information necessary to pursue her child's right to support." DeGraaff v. DeGraaff, 163 N.J. Super.578, 580 (App. Div. 1978); see alsoR.4:10-3 (providing procedure for protective orders). This does not mean plaintiff is barred from exploring the underlying ownership of assets claimed by defendant's wife, whether defendant's resources were committed to acquire or enhance these assets, or whether these resources are used to relieve defendant from satisfying his obligations.

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).

Following our detailed review, we conclude plaintiff demonstrated the right to discovery to test the broad representations by defendant regarding his earned income, earning ability, business interests, satisfaction of his expenses, and rental receipts. For all the reasons we have identified, this record contains significant disputed facts regarding defendant's income and earning ability, requiring discovery and a plenary hearing.

Finally, regarding child support, plaintiff argues the use of the Guidelines was inappropriate because the child is over eighteen. Her point is well made. The Guidelines are limited to support for children under eighteen or attending high school. Jacoby v. Jacoby, 427 N.J. Super.109, 120 (App. Div. 2012) (quoting Pressler & Verniero, supra, Appendix IX-A to R.5:6A). For unemancipated children ages eighteen and over, the law requires support to be calculated after evaluation of the statutory factors set forth in N.J.S.A.2A:34-23(a). Ibid. An exception allows the Guidelines to "be applied in the court's discretion to [set] support for students over 18 years of age who commute to college." Ibid. However, when a judge exercises such discretion, he or she must explain why the Guidelines were more appropriate than the statutory factors to calculate the child's needs. Ibid.; R.1:7-4.

Because we are vacating the trial judge's order reducing child support and remanding the matter for a plenary hearing on defendant's proof of changed income and earning ability, we also vacate the denial of plaintiff's request for defendant's contribution to the child's college costs, as it must abide the income determination. The judge mistakenly denied consideration of this issue citing plaintiff's failure to address the factors outlined in Newburgh v. Arrigo, 88 N.J.529, 545 (1982). Here, the parties' marital settlement incorporated into the FJOD outlines their agreement their son should attend college and their commitment to provide financial assistance for that endeavor. Absent a motion by a party to modify that agreement, which was never filed, the only remaining decision is their respective obligations based on their financial resources.

Plaintiff's appeal also attacks other provisions in the challenged orders. She seeks to vacate her obligation for the St. Croix property assessments and the use of laches to eliminate defendant's obligation to comply with provisions of the FJOD.

We conclude the judge erred in entertaining defendant's newly presented request for plaintiff's contribution to the St. Croix property. First, the issue was raised for the first time in his reply, depriving plaintiff of the opportunity to respond. The judge should have denied the request without prejudice. SeeR.1:6-3(a) (limiting nature of reply certification). Second, there is no evidence of a prior agreement or order imposing any obligation on plaintiff; the past practice of the parties suggests this was defendant's sole obligation. We reverse this provision in the order as unsupported.

Plaintiff also challenges as erroneous the judge's application of laches to bar her request for payment of the child's past dental and vision expenses. We agree.

"[L]aches is the failure to assert a right within a reasonable time resulting in prejudice to the opposing side." Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 570 (App. Div. 2003) (citing L.V. v. R.S., 347 N.J. Super.33, 39 (App. Div. 2002)). "The key factors include the length of delay, reasons for delay, and change of position by either party during the delay." Ibid.(citing L.V., supra, 347 N.J. Super.at 39). The last criterion is critical. So, for instance, in Clarke, where the former wife did not file a motion for enforcement of support for more than twenty years, we held the doctrine of laches did not bar her present claim for alimony because there was no evidence her former husband changed his position or was prejudiced by the delay. Ibid.

[Reese v. Weis, 430 N.J. Super. 552, 583 (App. Div. 2013).]

Plaintiff's claims are akin to child support, which belong to the child and are not waivable. Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003) ("It is a fundamental principle of the Family Division that the right to child support belongs to the child or children, not to the custodial parent." (quoting Monmouth Cnty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super.83, 95 (Ch. Div. 1997))). Further, despite the judge's finding, the record is devoid of evidence to support any suggestion defendant suffered prejudice.

[An] appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless it is convinced they are so manifestly unsupported by or inconsistent with the competent, relevant, and reasonably credible evidence as to offend the interests of justice.'

[Cesare, supra, 154 N.J.at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J.474, 484 (1974)).]

We have considered the remaining arguments advanced by plaintiff. We decline to address plaintiff's further requests. R.2:11-3(e)(1)(E).

In summary, we affirm the provisions of the challenged orders regarding custody and parenting time. We affirm the judge's order allowing defendant to redact his spouse's income information. We reverse the order imposing an obligation upon plaintiff to contribute to the St. Croix assessments. We affirm the order imputing income to defendant, but reverse the amount of income imputed. We also vacate the orders respecting modification of child support, enforcement of defendant's compliance with established obligations to contribute to the child's prior dental and vision costs, and denying defendant's obligation to satisfy the FJOD requirement he contribute to college costs. We remand this matter to the trial court for a plenary hearing following discovery.

Affirmed in part, reversed in part, and remanded in part.

1 The statement of reasons recites the claimed business income and also states defendant receives $19,800 in rental income. The basis of this fact is unclear as it does not appear in defendant's certifications or attachments. The statement of reasons also refers to defendant's disclosures in a CIS; however, as noted, the CIS attached to defendant's moving certification was dated August 5, 2004. Notably, it reports his annual 2003 net income as $34,317.

2 Plaintiff argues the judge erred in denying her request to interview the parties' child. We are not persuaded. "The decision whether to interview a child in a contested custody case is left to the sound discretion of the trial judge, which, as in all matters affecting children, must be guided by the best interest of the child." D.A. v. R.C., 438 N.J. Super. 431, 455-56 (App. Div. 2014).

3 We also recognize plaintiff's cross-motion was deficient because it did not include her current CIS, despite a new request for contribution of college and car expenses.

4 The weight given to the uncertified hearsay letter from an examining physician is not clear from the judge's statement of reasons. However, the document may not have been relied upon for the truth of the matter asserted because it does not qualify as routine medical report admissible as a business record, N.J.R.E. 803(c)(6), because it was prepared for litigation, contains more than routine objective findings and provides evaluative medical opinions of diagnoses or complex medical conditions. James v. Ruiz, 440 N.J. Super. 45, 63 (App. Div. 2015).