NANCY WICHARD v. SCOTT WICHARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2380-07T12380-07T1

NANCY WICHARD,

Plaintiff-Appellant,

v.

SCOTT WICHARD,

Defendant-Respondent.

_________________________________________________

 

Submitted October 2, 2008 - Decided

Before Judges Stern and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Bergen County, FM-02-591-04.

Heimbuch & Solimano, attorneys for appellant

(Valerie D. Solimano, of counsel and on the brief).

Lesnevich & Marzano-Lesnevich, attorneys for

respondent (Madeline Marzano-Lesnevich, of counsel; Scott Adam Laterra, on the brief).

PER CURIAM

Plaintiff, Nancy Wichard, appeals from an order entered by a judge of the Family Part on December 7, 2007 that increased child support payments by her former husband, defendant Scott Wichard, from $817 per month to $850 per week. On appeal, plaintiff presents the following arguments:

POINT I

THE TRIAL COURT'S FACTUAL FINDINGS AND CONCLUSIONS OF LAW ARE NOT SUPPORTED BY THE RECORD AND THEREFORE, THE COURT'S ORDER SHOULD BE REVERSED AND REMANDED.

POINT II

THE TRIAL COURT ERRED WHEN IT FAILED TO ANALYZE THE FACTORS SET FORTH AT N.J.S.A. 2A:34-23(a) IN ESTABLISHING CHILD SUPPORT IN A SITUATION WHERE AS HERE, THE PARTIES' COMBINED INCOMES EXCEED THAT PROVIDED UNDER THE CHILD SUPPORT GUIDELINES.

POINT III

THE TRIAL COURT ERRED WHEN IT DENIED THE PLAINTIFF'S REQUEST TO CONDUCT FINANCIAL DISCOVERY IN THIS MATTER.

POINT IV

THE TRIAL COURT ERRED WHEN IT DENIED THE PLAINTIFF'S REQUEST FOR COUNSEL FEES.

The facts relevant to this appeal follow. The parties were married on July 3, 1999. On November 9, 2000, fraternal twins were born, and on September 12, 2003, after four years of marriage, plaintiff filed for divorce. A final judgment of divorce was entered on November 3, 2004. A property settlement agreement (PSA) between the parties, incorporated into the divorce decree, provided for joint custody of the twins. Although plaintiff was designated the parent of primary residence, custody of the children was equally shared.

Throughout the course of the marriage and thereafter, defendant was employed by Morgan Stanley, receiving a substantial salary and bonuses. Prior to the marriage, and until April 2000, plaintiff had been employed as an account executive, providing client and project management for national and international multimedia accounts. She earned a salary of approximately $60,000 per year. At the time of the divorce, plaintiff intended to return to school to qualify for her certification as a teacher. As a consequence, and despite the short length of the marriage, the PSA provided that defendant would pay plaintiff limited duration alimony in the monthly amount of $7,187 for a period of three years, ending on October 30, 2007. For tax reasons, that amount included $667 monthly for the cost of preschool, as well as camp costs of $500 per month. In addition, the PSA required defendant to pay $817 monthly in child support for the children. The agreement provided:

(b) HUSBAND'S child support obligation, including the issues of work-related child care (including camp if applicable) and other extraordinary costs shall be . . . reviewed at the expiration of three (3) years from its commencement hereunder, which date is intended to be simultaneous with the expiration of WIFE'S alimony. The parties shall attempt to agree on an appropriate amount of child support to be paid by HUSBAND to WIFE, taking into account the parties' and children's circumstances at that time, the income of the parties (including all gross wages, commissions, salaries, bonuses and income from bonuses), and the parenting time arrangements of the parties, in addition to any factors normally considered in the determination of child support, including but not limited to the New Jersey Child Support Guidelines and applicable New Jersey law. In the event that the parties cannot come to such an agreement, the parties shall attempt to mediate the issue and/or resort to a court of competent jurisdiction.

On August 27, 2007, plaintiff's newly-retained counsel wrote a letter to counsel for defendant, reminding her that child support was to be reviewed and stating:

You can appreciate that the issues of support readjustment are extremely time sensitive. Thus, if I do not hear from you or someone else on behalf of Mr. Wichard not later than September 05, 2007, I will file an application on an immediate basis to facilitate the child support adjustment.

By letter dated September 4, 2007, defendant's counsel responded, confirming continued representation of defendant and stating:

I have already advised Mr. Wichard to begin gathering all of his current financial information so that we may exchange same in a timely fashion before October 30, 2007. Once I receive those documents and have an opportunity to review same, I trust that we will be able to simultaneously exchange the parties' financial information and recalculate child support accordingly.

If you wish to discuss this further, please do not hesitate to contact me.

At some point, plaintiff requested that defendant continue alimony payments without prejudice, pending final review of defendant's child support obligation, but no response was received.

Without further communication between the parties, on October 9, 2007, plaintiff moved for relief that included entry of an order requiring defendant to comply with the terms of the child support payment review set forth in the PSA, directing the parties to produce current financial information identifying all earned and unearned income, directing continuing alimony payments without prejudice until final review of defendant's child support obligations, permitting plaintiff to engage in discovery to ascertain defendant's gross income, and requiring payment of attorney's fees in the amount of $10,000 if the matter proceeded to a plenary hearing. In response, defendant cross-moved for an order denying plaintiff's discovery, continued alimony and counsel fee requests, determining defendant's child support obligation, imputing income of $58,000 to $60,000 to plaintiff for purposes of calculating child support, and granting defendant attorney's fees and costs.

The cross-motions were argued by counsel on December 7, 2007. By that date, plaintiff and defendant had exchanged case information statements (CIS), and defendant had produced his tax returns and three pay stubs. Plaintiff's CIS disclosed that, as a result of alimony payments, her gross unearned income in 2006 had been $82,242. She had secured a position as a morning kindergarten teacher in Mahwah commencing on September 4, 2007 at a salary of approximately $25,000 and a part-time position as a teacher's aid in Ridgewood for a maximum of three hours per day, earning $15 per hour. At the hearing, plaintiff acknowledged an income from teaching of $35,000.

Plaintiff's CIS listed monthly shelter expenses of $3,606, transportation expenses of $842 and personal expenses of $4,189. Of those amounts, the only expenses specifically attributed to the twins were the following:

Camps $500

Children's lessons (dancing, 80

music, sports, etc.)

Baby sitting 200

Day Care 270

Plaintiff's certification, submitted in support of her motion, did not otherwise detail the children's basic and non-essential needs or items required by plaintiff to maintain the children's prior standard of living.

Defendant's CIS disclosed that his gross earned income for 2006 had been $165,000 and his unearned income had been $307,500. Defendant's present average gross weekly income was $9110, including bonus. Without the bonus, defendant's weekly gross pay was $3,173. Defendant also indicated that part of his bonus "had been paid in the form of restricted stock units."

At the hearing conducted in the matter, counsel for plaintiff noted that defendant had disclosed that his bonus was comprised in part of deferred stock units, but he had listed as income only those units that had been exercised. Counsel sought discovery as to the remainder. Additionally, counsel noted that defendant disclosed ownership of a second piece of residential property, but had not listed rental income on either his CIS or his tax return. Counsel sought discovery regarding this matter, as well. Both discovery requests were denied without prejudice by the Family Part judge, who also denied the parties' cross-applications for attorney's fees, finding no evidence of bad faith.

In setting child support at $850 per week, the judge determined that the amount paid to defendant made him a high-income earner whose earnings exceeded the maximum provided by the child support guidelines. The judge therefore increased the maximum support of $606 provided by the guidelines by approximately $250 to reach the $850 that was awarded. When comparing the income of plaintiff and defendant, the judge declined to impute income to plaintiff, as defendant had requested, determining that plaintiff was not at fault in accepting the limited employment in her chosen field that was offered to her. The judge additionally considered the age of the children, which was seven at the time of the hearing, and the equally apportioned parenting schedule.

Although plaintiff's counsel requested additional sums for work-related child care and camp, the request was denied. Quoting the PSA, the judge stated:

"Husband child support obligation including the issues of work-related childcare, including camp, if applicable, and other extraordinary costs shall be reviewed after expiration of three years."

Okay. But it doesn't say, in addition to what the Judge is going to order . . . he's going to turn around and add on X amount of dollars to that.

Rather, the judge found that the requested expenses were included within the amount of child support that he had fixed. Nonetheless, when denying further relief, the judge stated that he did so without prejudice, but that to increase the amount now, "I need something other than what you're giving me." The judge then observed:

If it was not a shared parenting, okay, I'll tell you, right off the bat, that I probably would either take this figure and add something to it or I would leave the figure and give you something, a percentage towards it. But . . . I'm taking everything into account, the shared parenting.

An order embodying the relief ordered by the judge was entered immediately after the hearing.

In her first argument on appeal, plaintiff claims that the Family Part judge failed to consider the factors set forth in N.J.S.A. 2A:34-23(a) as required by Caplan v. Caplan, 364 N.J. Super. 68 (App. Div. 2003), aff'd, 182 N.J. 250 (2005) and Isaacson v. Isaacson, 348 N.J. Super. 560 (App. Div.), certif. denied, 174 N.J. 364 (2002), and because the judge failed to do so, the award was not supported by substantial credible evidence in the record. According to plaintiff, reversal is thus required.

In a case such as this in which the supporting former spouse is a high-income earner, we have held that "the maximum amount provided for in the guidelines should be 'supplemented' by an additional award determined though application of the statutory factors in N.J.S.A. 2A:34-23(a)." Isaacson, supra, 348 N.J. Super. at 581 (citing Pascale v. Pascale, 140 N.J. 583, 594-95 (1995) and Connell v. Connell, 313 N.J. Super. 426, 431 (App. Div. 1998)). That statute provides:

In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;

(5) Need and capacity of the child for education, including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

Of those factors, only (1) through (4) and (6) can reasonably be considered applicable to the present case. All were to an extent considered by the Family Part judge in reaching his decision.

Plaintiff notes in her brief that in cases such as this in which high income permits a parent to provide for more than a child's basic needs, "children are entitled to other non-essential items that are reasonable and in the child's best interest." Isaacson, supra, 348 N.J. Super. at 582. Plaintiff also reminds us "that the law is not offended if there is some incidental benefit to the custodial parent from increased support payments." Id. at 584. However, our review of plaintiff's CIS and certification discloses no non-essential needs that plaintiff claimed were unmet or items from which plaintiff would receive incidental benefit that would serve to raise the twins' standard of living to the level that they had previously experienced or to which they were otherwise entitled. Plaintiff's brief on appeal likewise lacks specific evidence that would suggest that the children's needs had been shortchanged by the judge's award.

Plaintiff argues additionally that the judge erred in denying, without prejudice, her request for discovery with respect to defendant's unexercised stock units and his rental income. But we note in this regard that defendant has now voluntarily provided that discovery. Significantly, plaintiff has not presented any argument on appeal that would suggest that the additional information, if disclosed earlier, would or should have altered the result reached by the Family Part judge. However, plaintiff is free to seek further relief if that evidence provides a basis for doing so.

As a final matter, plaintiff challenges the judge's determination not to award her attorney's fees in this case. The determination whether to award such fees is properly within the discretion of the judge hearing the matter, and cannot be overturned unless an abuse of discretion is demonstrated. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The following factors are relevant to an award of attorney's fees:

(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;

(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 result 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).]

As we have previously stated, the judge denied an award of attorney's fees to either party upon counsels' concession that no evidence of bad faith existed. Nonetheless, we note that litigation could potentially have been averted if plaintiff's counsel had communicated with defendant's attorney to determine when defendant's promised financial information would be produced or had otherwise sought to discuss the children's reasonable needs prior to abruptly filing her motion on October 9, 2007.

While not specifically addressed by the judge in his ruling on the counsel fee issue, the judge was clearly aware of the financial circumstances of the parties as the result of the nature of their cross-motions. The record reflects that both parties submitted roughly equivalent fee applications that were modest in amount. Neither party obtained all the relief that was sought. And finally, there was no evidence that defendant had defaulted in either his alimony or child support obligations. Our consideration of these factors satisfies us that the Family Part judge did not abuse his discretion in denying the parties' fee applications in this matter. Reconsideration of child support in 2007 was a circumstance anticipated by the parties. In light of that fact, a determination that the parties should bear their own expenses was not unreasonable.

Affirmed.

 

Plaintiff certified that defendant was earning approximately $250,000 annually at the time of divorce.

It was disclosed at the hearing that an offer of full-time employment by Mahwah had been unexpectedly withdrawn.

The wife sought $3,085 and the husband sought $4,882.25. Both parties' fee applications were properly presented.

No evidence was offered that would permit analysis of the remaining factors.

(continued)

(continued)

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A-2380-07T1

November 13, 2008