DENISE ZELLER v. MARK ZELLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1552-06T11552-06T1

DENISE ZELLER,

Plaintiff-Respondent,

vs.

MARK ZELLER,

Defendant-Appellant.

______________________________________

 

Submitted May 16, 2007 - Decided July 26, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-2067-00F.

George G. Gussis, attorney for appellant (Gergely Hajdu-Nemeth, on the brief).

Alfonso, Levine, Spilka & Schwartz, attorneys for respondent (Ellen F. Schwartz, on the brief).

PER CURIAM

Defendant appeals from that portion of the June 6, 2006 order of the Family Part recalculating his weekly child support obligation pursuant to the terms of the Property Settlement Agreement (PSA). Defendant claims that in recalculating his obligation from $336 to $315 per week, the trial court erred when it failed to consider plaintiff's income and also failed to utilize the Child Support Guidelines (Guidelines). See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2007). We agree and reverse.

The parties divorced in November 2000, after a seventeen-year marriage from which three children were born. The parties executed a PSA, which, among other issues, addressed child support. The PSA was incorporated into the Final Judgment of Divorce (FJD).

In the PSA, the parties expressly acknowledged that they did not exchange Case Information Statements nor conduct discovery related to their respective income and financial assets. They also agreed to forgo an evaluation of defendant's home improvement business. Further, they agreed that defendant would pay $300 per week in child support. How the parties arrived at that amount is not set forth in the agreement; however, the parties acknowledged that the $300 amount was in excess of the Guidelines, a factor the parties acknowledged they took into consideration when plaintiff waived her interest in defendant's business. In addition, the parties agreed that "child support [would] be reevaluated at the time each child commences post secondary school, taking into consideration whether the child will reside at home or live at school and the amount each parent is contributing to each child's education costs."

In May 2006, the parties' eldest child graduated from high school and commenced college. Defendant moved to recalculate child support. Plaintiff opposed the motion and cross-moved for other relief, which is not the subject of this appeal. After considering the papers filed and the arguments on behalf of the parties, the court reduced defendant's weekly child support obligation by $21 per week. In reaching its decision, the court partially considered the Guidelines, but offered no explanation why it otherwise deviated from the Guidelines. Moreover, the court, in its decision, did not consider the income of the parties. Thereafter, defendant unsuccessfully moved for reconsideration. This appeal followed.

Defendant contends that the trial court erred in its departure from the Guidelines, which defendant urges are the presumptive method of establishing child support. Specifically, defendant maintains the Guidelines apply because the PSA required recalculation and did not expressly prohibit use of the Guidelines or require that the initially agreed upon child support figure survive throughout the post-judgment period. Furthermore, defendant admits the court may depart from the Guidelines, but maintains that such departure is predicated on the court stating the basis for doing so, which the motion judge in this matter failed to do. Plaintiff contends the motion judge's actions were well within her discretion and thus her findings should not be disturbed unless they are manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. Rova Farms Resort, Inc. v. Investors, Inc., 65 N.J. 474, 484 (1974).

A trial court is granted substantial discretion in determining a child support award. Pascale v. Pascale, 140 N.J. 583, 594 (1995). Where an award is otherwise consistent with the law, it "will not be disturbed unless it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice,'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999), and such findings are not "supported by adequate, substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394, 411-412 (1998).

Rule 5:6A provides that the Guidelines must be utilized "when an application to establish or modify child support is considered by the court." The Guidelines may be modified or disregarded by the court only where good cause is shown. Ibid. When the Guidelines are disregarded, "the reason for the deviation and the amount of the guidelines-based award (before any adjustment) must be specified in writing on the guidelines worksheet or in the support order." Pressler, supra, Appendix IX-A at 2217; R. 5:6A.

Thus, in situations where the court departs from the Guidelines, the judge must still "resolve the gross and net income dispute, determine the appropriate support level based on the Guidelines and the statutory factors enumerated in N.J.S.A. 2A:34-23, and then, based on those findings, explain why the order deviated from the Guidelines." Winterberg v. Lupo, 300 N.J. Super. 125, 132 (App. Div. 1997).

In reducing defendant's child support obligation from $336 weekly to $315 weekly, the motion judge partially applied the Guidelines. However, beyond noting that the oldest child would be at college for the majority of the year, the only other explanation the court provided for departing from the Guidelines was the fact that during the parties' mediation, the "mediator did not use the [Guidelines] as part of the [PSA]" and that the PSA was replete with references that "child support in excess of the guidelines was being used in lieu of other financial relief[] that could or should be addressed."

In denying defendant's motion for reconsideration, the motion judge again issued an oral opinion noting that the earlier decision set forth in specific detail how support was calculated, including the fact that the Guidelines were partially considered and that "partially a different methodology for calculating child support" was also utilized.

In our view, while the terms of the PSA may have led the court to reasonably conclude that there was good cause to depart from the Guidelines, departure from the Guidelines should not have been the starting point. Rather, the Guidelines are the starting point. See R. 5:6A. Further, the failure to make these specific findings and to explain the reasons for departing from the Guidelines is sufficient to warrant reversal. Winterberg, supra, 300 N.J. Super. at 132. Additionally, the court's failure to consider the income of the parties was contrary to the Guidelines. Pressler, supra, Appendix IX-A to R. 5:6A at 2226; see also Caplan v. Caplan, 182 N.J. 250 (2005) (illustrating that the Guidelines use income data to determine the percentage of income available for the support of children).

Plaintiff did not submit any evidence of her current income to the court. Although defendant claims the court considered his income, in actuality, the court simply used $336 as a starting point for its adjustment of child support. Therefore, the court did not assess or determine the income of either party. The failure to do so or to require the parties to submit financial information is likewise contrary to the Guidelines and statute. Pressler, supra, Appendix IX-B to R. 5:6A (2007); N.J.S.A. 2A:34-23.

In light of these deficiencies in the record, a remand is appropriate for an assessment of the parties' income and assets to determine an appropriate amount for child custody under the Guidelines and/or N.J.S.A. 2A:34-23, as the court's findings are not supported by adequate evidence in the record. Cesare, supra, 154 N.J. at 412.

Reversed and remanded for further proceedings consistent with this opinion.

 

Prior to the motion, plaintiff was granted two child support increases, in accordance with Rule 5:6B(2). The first was on September 25, 2002, and resulted in a 5.65 percent increase for cost of living expenses from $300 per week to $317 per week. The second, granted September 25, 2004, increased support by 6.15 percent from $317 per week to $336 per week.

(continued)

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A-1552-06T1

July 26, 2007