LATASHA C. SEWELL v. MARCUS A. HOLMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2179-08T32179-08T3

LATASHA C. SEWELL,

Plaintiff-Appellant,

v.

MARCUS A. HOLMES,

Defendant-Respondent.

__________________________________

 

Submitted September 23, 2009 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-004664-02-A.

Latasha C. Sewell, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Latasha C. Sewell appeals an order of the Family Part dated October 16, 2008, fixing the amount of weekly child support payable by defendant Marcus A. Holmes for their minor daughter. Plaintiff contends that the amount of support awarded is insufficient, and that the motion judge failed to consider various income and expense factors. For the reasons that follow, we remand this matter to the Family Part to further develop the record and to reconsider the amount of support based on the additional facts that emerge on the remand.

The pertinent background is as follows. The parties' daughter is presently six years old and resides with plaintiff in Florida. Defendant resides in New Jersey. According to the birth certificates and tax returns supplied in the appellate record, plaintiff has at least three other minor children that are not defendant's children. There is no indication that plaintiff is receiving child support for any of her other children. The record does not indicate that defendant has any other minor children or support obligations.

The present appeal arises out of a motion by plaintiff in the Family Part to increase the child support amount for the parties' daughter. Plaintiff and defendant were both self-represented, and various documents were submitted to the court in connection with the motion. Plaintiff participated in the motion hearing on October 16, 2008 by telephone, while defendant was present in court.

As of the time of the motion hearing, plaintiff was not working and was receiving $136 in net weekly unemployment benefits. Plaintiff had earned $16,926 in 2005, $13,505 in 2006 and $11,026 in 2007 consisting of $5,741 in wages and $5,285 in unemployment benefits. She had earned the modest sum of $317.32 for a tax services company in the first quarter of 2008. Meanwhile, at the time of the motion hearing, defendant was employed in New Jersey as a wire cutter for LAPP, USA, Inc.

A major point of disagreement in this case is the proper amount to designate as defendant's weekly wages. Unlike plaintiff, defendant did not supply the court with any of his prior tax returns. He did present a pay stub dated June 26, 2008, which showed that he earned $532.80 in regular (forty-hour) earnings for that weekly pay period, plus another $59.94 for three hours of overtime, yielding a gross pay for the week of $592.74. The pay stub also showed that defendant had earned $19,453.97 through June 26, 2008 for the 2008 calendar year. Defendant testified that he was earning "about $500 a week" in gross wages. The judge accepted that $500 figure, and incorporated it into the standard worksheet used to calculate support under the Child Support Guidelines. The judge ascribed a $67 weekly credit to defendant for health care insurance that defendant recently started paying to cover his daughter.

With respect to plaintiff's income, the judge imputed to her $286 in weekly income, which was based on the minimum wage, a sum substantially above the weekly sum that plaintiff was receiving in unemployment benefits. The judge did not make any adjustments for other dependents, disagreeing with plaintiff that she had properly identified her other dependents in her motion papers.

Plaintiff also presented to the motion judge what may be characterized as various alleged extraordinary expenses. In particular, plaintiff presented receipts for the daughter's tuition and her extended-day fees at her Catholic school in Florida, the daughter's uniform costs, and other miscellaneous items. None of these charges were expressly included in the court's worksheet calculations.

Plaintiff further sought reimbursement for the costs of transporting the daughter three times per year to visit her father in New Jersey. On this point, the judge made no adjustment, but instead ruled that the transportation costs should be divided equally by the parties, independent of the child support.

Based on these considerations, the judge arrived at a weekly support figure of $73, adopting the figure computed with the Guidelines-based computer software. The judge further ordered defendant to pay an additional sum of $5 weekly in arrears. Plaintiff then moved for reconsideration, which was denied.

In her unopposed pro se brief on appeal, plaintiff contends that the motion judge erred in several respects, yielding what is, in her view, an inadequate support amount. She challenges the court's use of a $500 weekly income figure for defendant, contending that defendant worked an atypically low amount of overtime in the pay period shown on his pay stub. She contends that defendant's customary actual earnings are significantly above $500 per week, that he is hiding income, and that his failure to bring his tax returns to court is telling. She also contests the court's imputation of minimum wages to her, contending that she has medical issues that have impaired her employability.

On the expense side, plaintiff argues that the court improperly overlooked her child's school costs, and the financial burdens of her other dependents. Plaintiff further contends that the court failed to enforce its oral ruling that defendant bear one-half of the costs of visitation-related transportation between Florida and New Jersey by ordering partial reimbursement of such past costs that she incurred. In sum, plaintiff requests a recalculation of the support figure, and an increase in the rate of payment of the arrears.

By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). The statute enumerates several factors to consider in calibrating support, including (1) the "[n]eeds of the child"; (2) the "[s]tandard of living and economic circumstances of each parent"; (3) "[a]ll sources of income and assets of each parent"; (4) the "[e]arning ability of each parent"; (5) the "[n]eed and capacity of the child for education"; (6) the "[a]ge and health of [each] child and each parent"; (7) the "[i]ncome, assets and earning ability of the child"; (8) the "[r]esponsibility of the parents for the court-ordered support of others"; (9) the "[r]easonable debts and liabilities of each child and parent"; and (10) "[a]ny other factors the court may deem relevant." Ibid.; see also Gac v. Gac, 186 N.J. 535, 548 (2006) (applying these statutory factors).

For modest-income parents such as the parties in this case, the State has established presumptive Guidelines, and a corresponding worksheet, to calculate child support. See Pressler, Current N.J. Court Rules, Appendix IX-A and IX-B to R. 5:6A at 2383, 2407 (2010). The Guidelines were "developed to provide the court with economic information to assist in the establishment and modification of fair and adequate child support awards." Id. Appendix IX-A at 1. The economic data and procedures in the Guidelines "attempt to simulate the percentage of parental net income that is spent on children in intact families." Ibid.; see also Caplan v. Caplan, 182 N.J. 250, 264 (2005). The Guidelines were created by taking into account general economic data on matters such as household standards of living; consumer expenditure patterns; food, shelter, transportation and clothing costs; fixed and variable expenses; cost-of-living trends; and other market indicators. See Pressler, supra, Appendix IX-A at 5.

Our Court Rules prescribe that, except for parents with incomes above the specified high-income threshold, the Guidelines "shall be applied when an application to establish or modify child support is considered by the court." R. 5:6A; see also Lozner v. Lozner, 388 N.J. Super. 471, 480 (App. Div. 2006). "A court may deviate from the [G]uidelines only when good cause demonstrates that [their] application . . . would be inappropriate." Lozner, supra, 388 N.J. Super. at 480 (citing Ribner v. Ribner, 290 N.J. Super. 66, 73 (App. Div. 1996)).

The motion judge in this case correctly recognized that the Guidelines applied to this case because the parties' respective incomes were less than $3,600 combined weekly earnings presently established as the high-income threshold. See Pressler, supra, Appendix IX-F, at 2466. The judge endeavored to apply the Guidelines by using the computerized worksheet and software program developed for that purpose.

We cannot fully evaluate plaintiff's claims on appeal challenging the trial court's application of the Guidelines because the record is incomplete as to several material issues. In addition, the motion judge did not, in certain respects, provide a sufficient statement of reasons explaining why the court accepted or rejected certain contentions of the parties that affect the Guidelines calculations. See Elkin v. Sabo, 310 N.J. Super. 462, 470-71 (App. Div. 1998) (requiring trial courts to articulate their particularized reasons for child support decisions and assumptions, even when applying the Guidelines). Further, the judge has not explained, in the face of plaintiff's claims of inequity and extraordinary hardship, why good cause is absent to deviate from the Guidelines.

Several points in particular are worth further scrutiny. First and foremost, the court should examine plaintiff's contention that defendant routinely grosses more than the $500 weekly sum used in the worksheet calculations. Although plaintiff did not specifically argue to the motion judge, as she does on appeal, that defendant's income was skewed by a non-representative pay stub with little overtime, we do note that the pay stub itself shows that defendant had been paid almost $20,000 in year-to-date gross earnings by the end of June in 2008. If defendant continued to be paid at that rate for the second half of 2008, his annual income would be about $40,000, not the $26,000 annual amount used by the court. The absence of prior tax returns for plaintiff confirming his earnings history with his employer (with whom he has worked since January 2006) also raises concerns. See also Pressler, supra, Appendix IX-B at p. 2411 (recommending that, in determining a parent's gross income, the court should consult the prior year's income tax returns when possible and/or consider year-to-date earnings from all documented sources). The matter will be remanded to reconsider this issue, and defendant shall be required to provide the court with his three most current pay stubs and his tax returns for 2007 and 2008. If factual disputes about defendant's prospective earnings are not resolvable from the documentation supplied on remand, the judge should make appropriate credibility findings from the testimony.

Second, the court should reconsider its imputation of earnings to plaintiff. See id. Appendix IX-A at 12. Plaintiff apparently has several minor dependents, and she also claims she has health issues that limit her ability to work. She also testified at the hearing that her unemployment benefits in Florida were about to run out. These issues warrant further examination and appropriate credibility findings.

Third, the court failed to explore sufficiently plaintiff's contention that her obligation to support her other children reduces her ability to support the parties' daughter. The record before us is inconclusive as to exactly how many other minors are dependent upon plaintiff as their parent of primary residence, whether other child support orders exist as to those other children, and whether those children have significant overnight parenting time with their fathers. Those issues need to be explored, to the extent practicable, to determine if plaintiff is entitled under the Guidelines to an Other Dependent Deduction ("ODD") on Line 2d of the worksheet, or, alternatively, an equitable adjustment to the Guidelines award without an ODD calculation. See id. Appendix IX-A at 3 and 10.

Fourth, the trial court should give more detailed consideration to plaintiff's claims of extraordinary expenses for extended-day child care expenses, parochial school tuition, school-related transportation costs, uniform expenses and the other discrete items she has presented. With respect to the school tuition and school transportation costs, plaintiff shall have the burden of demonstrating that these expenses are reasonable and justified, in light of the parents' limited incomes and the presumptive availability of free public schooling. See id. Appendix IX-A at 9. With regard to the child care component, plaintiff shall have the burden of showing that these charges are work-related, which appears unlikely given that plaintiff was unemployed as of the time of the October 2008 hearing. Ibid. Finally, as to the school uniform charges, plaintiff shall have the burden of showing that those charges exceed the normal clothing allowances factored into the Guidelines; it may well be that the school uniform costs are actually lower than the costs of a regular weekday wardrobe for a child in public school.

Fifth, the court should make an appropriate explicit provision in its order on remand, compelling defendant to reimburse plaintiff for his portion of the shared costs of transporting the child to and from Florida for visitation in New Jersey. If defendant has incurred his own expenses for such travel by the child, he shall present documentation of such payments so that the court can make appropriate offsets in its calculation of what, if anything, is owed from one parent to the other.

Apart from these discrete matters, plaintiff has questioned whether the support amount fairly takes into account the increased costs of living. In this regard, we note that the child support process already takes that inflationary concern into account by providing for automatic biannual cost of living adjustments once a support order or modification order has been entered, unless it is superseded by a modified order. See R. 5:6B. Thus there is no need for the trial court to concern itself with this issue on the remand.

Although we must remand this matter, we do appreciate the practical difficulties confronting Family Part judges, who often are asked to calculate child support with incomplete information and who must deal with the frequent lapses of self-represented litigants in adhering to the requirements of the law and the Court Rules. In the present case, we note that this was the third time that plaintiff attempted to advance her motion for modification and, even on that third effort, the court was left without all the documentation and data it needed to make informed rulings. The court's task was undoubtedly complicated by the fact that plaintiff appeared at the hearing telephonically. Even so, there are too many open issues in the present record to allow the extant support order to stand.

The matter is remanded for a plenary hearing on those issues, to be completed within forty-five days of this decision. In the interim, the existing order shall continue in place provisionally, subject in the court's discretion to order a retroactive adjustment up to the date of plaintiff's original motion return date. Any changes in the arrears payoff rate shall abide the remand. We do not retain jurisdiction.

Remanded.

 

Although plaintiff stated under oath at the motion hearing that she has four, not three, other children apart from the parties' daughter, her appendix on appeal only contains copies of three additional birth certificates. Plaintiff's federal tax returns for 2005 and 2006 claim two dependent children: a daughter born in March 1996 and a son born in April 2001, but do not claim the parties' daughter. By contrast, plaintiff's 2007 federal tax return includes the parties' daughter and plaintiff's daughter born in March 2006, but omits plaintiff's son. The record contains no explanation for these apparent discrepancies.

In the hearing transcript, the judge alludes to the fact that plaintiff had previously moved to increase child support in June 2008, but that motion had been dismissed for lack of proper income documentation. There is also a passing reference in the transcript to a proceeding on "August 6," to what seems to have been an earlier attempt to argue the motion eventually heard on October 16.

Apparently defendant had furnished the pay stub at the August 6 proceeding, but he did not bring any updated pay stubs for the October 16 hearing.

(continued)

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13

A-2179-08T3

October 14, 2009