JAMES P. LIDON v. JEAN S. LIDON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3355-08T33355-08T3

JAMES P. LIDON,

Plaintiff-Respondent,

v.

JEAN S. LIDON,

Defendant-Appellant.

 

Submitted November 2, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-519-97.

Jean S. Lidon, appellant pro se.

James P. Lidon, respondent pro se.

PER CURIAM

Defendant Jean Lidon appeals the November 5, 2008 order reducing child support payable to her on account of one child and requiring her to make college education contributions on behalf of a second child. Additionally, defendant appeals the January 27, 2009 denial of her subsequent application for reconsideration. We affirm.

The parties, both of whom are attorneys and appear pro se, divorced on November 4, 1997. Pursuant to the divorce decree, the two children born of the marriage resided with defendant.

Some additional context is necessary before our discussion of defendant's claims of error. On April 19, 2005, plaintiff James Lidon was ordered to pay defendant $337 per week in child support. This amount, a reduction from the prior order, resulted from the court's finding that defendant was voluntarily underemployed and its decision to impute income to defendant of $100,000 annually "in light of [her] education and many years of experience as an attorney."

The April 19, 2005 order for $337 weekly was in effect in July 2008, when plaintiff filed a motion seeking to terminate child support attributable for the parties' oldest child, a son, who had not lived with defendant since mid-August 2007. Plaintiff also sought sole custody of that child, sanctions against defendant for her failure to inform him of the child's whereabouts when his change of residence occurred, and contribution by defendant towards the child's college education at Lehigh University.

As a result of the July 2008 motion, the court entered an order on November 5, 2008: granting plaintiff custody of the oldest child; denying retroactive modification of child support; imposing economic sanctions on defendant in the amount of $3120 for her failure to disclose the child's whereabouts; quashing a subpoena defendant served upon plaintiff's employer; reducing child support to $50 weekly support for the daughter remaining in defendant's custody retroactive to July 22, 2008; requiring defendant to release documents necessary for financial aid applications to the Lehigh financial aid office; requiring plaintiff to take "all necessary steps to apply for any and all financial aid for which" the oldest child would be eligible; requiring plaintiff to pay fifty-eight percent of the oldest child's college expenses and defendant to pay forty-two percent directly to the college; denying defendant's request that plaintiff pay $10,000 for unreimbursed medical expenses; denying defendant's request that the court impose a sanction of $10,000 on plaintiff "for his alleged failure to exercise parenting time" over the years; and denying defendant's request that plaintiff pay $20,000 for a Ford Explorer which she purchased for the parties' son prior to his departure from her home. Other relief was awarded not relevant to the disposition of the issues raised in this appeal.

Thereafter defendant sought reconsideration of the November order. She alleged changed circumstances because of a temporary disability, and because the value of her stock portfolio had significantly declined due to market conditions. Reconsideration was denied on January 27, 2009.

Defendant evicted the parties' son from her home in August 2007, shortly before his senior year in high school, due to his drug and alcohol use. Somehow plaintiff did not discover this change until the spring of 2008, when his son called and told him he no longer lived with defendant. After being evicted, the son lived briefly with a friend and in his car. Eventually, he moved to the home of defendant's former boyfriend where he remained through June 14, 2008, so that he could complete his senior year at the same high school. The child moved in with his father after graduation. He commenced undergraduate studies at Lehigh in the fall of 2008.

Defendant's engineering degree is from Lehigh; even now she has some familial connection with the school. Her law degree is from Duke University and she has worked at private law firms earning significant income over the years. Although she has not remained at any position since the divorce for longer than three years, she earned an annual base salary at her last job of $127,600 exclusive of an $11,000 bonus. She was paid $62,000 upon her departure, which the motion court treated as severance pay. Defendant asserts the money was actually a settlement for "improperly withheld vested 401K funds, sexual harassment and wrongful discharge claims." As of December 2007, defendant was supportive of her son's application to Lehigh, and had emailed plaintiff about the percentage of college expenses he was planning to contribute because she could not pay for their son's college education on her own.

Defendant raises the following points in her appeal:

POINT I

CONTRIBUTION FOR COLLEGE WAS DETERMINED WITHOUT CONSIDERATION OF ALL RELEVANT NEWBURGH FACTORS

POINT II

IMPOSITION OF SANCTIONS WAS CONTRARY TO COURT RULE AND CREDIBLE EVIDENCE

POINT III

IN DENYING APPELLANT'S CROSS-MOTIONS, THE COURT BELOW FAILED TO ADHERE TO COURT RULE AND ITS FINDING IS NOT SUPPORTED BY ANY EVIDENCE

POINT IV

AWARD OF CHILD SUPPORT WAS ARBITRARY AND MANIFESTLY UNSUPPORTED BY LAW AND EVIDENCE

A. IT WAS IMPROPER TO IMPUTE $105,000 IN INCOME TO APPELLANT

B. CHILD SUPPORT WAS DISTORTED BY A MISCONCEPTION OF THE FACTS

C. IT WAS ARBITRARY TO IGNORE UNREIMBURSED MEDICAL EXPENSES

D. IMPROPER USE OF THE FORMULA CAUSED UNJUST AND INEQUITABLE RESULT

E. THE COURT BELOW WAS ARBITRARY AND UNREASONABLE IN THE EXERCISE OF ITS DISCRETION REGARDING TRAVEL EXPENSES

F. THE COURT BELOW USED THE WRONG STANDARD TO DECIDE MOTION

G. THE COURT BELOW DECIDED ISSUE ON CONSENT WHERE THERE WAS NONE

By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23a. The factors to be considered include (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, e.g., Gac v. Gac, 186 N.J. 535, 548 (2006). A child support order will be modified on a showing of changed circumstances: the statutory factors enumerated in N.J.S.A. 2A:34-23a are an aid in determining whether this standard has been satisfied. See, e.g., Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)).

Defendant contends that the relevant Newburgh v. Arrigo factors, particularly estrangement, were ignored by the motion court in calculating her share of college contribution. See Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) (listing the factors to be considered when evaluating a claim for contribution toward higher education). We are mindful that a child's alienation from a parent can at times bear upon the determination of the extent of a parent's financial obligation to contribute towards the child's college education. Gac, supra, 186 N.J. at 543; Newburgh v. Arrigo, supra, 88 N.J. at 545. We do not agree with defendant, however, that the estrangement in this case excuses her from a proportionate responsibility to contribute towards her son's college education.

Defendant asserts that because she has not seen her son since August 2007 and therefore has no relationship with him, she should not be compelled to pay anything. We disagree. There is no reason to believe that the current rift between mother and son legally warrants relieving her of financial responsibility towards his college education. The estrangement has not been of such duration as to trigger the Newburgh analysis. Although there is no magic number, the circumstances here do not constitute the near-permanent rupture in a parent-child relationship envisioned by the case.

Furthermore, defendant participated in her son's decision to attend Lehigh. She emailed plaintiff in December 2007 inquiring as to the extent of contribution he was planning to make towards the son's education at Lehigh the following year. Lehigh is the school she herself attended, and where she has, or in the past has had, family members on the faculty. This is a far cry from the scenario envisioned in Newburgh.

Defendant attacks the imputation of income to her by the motion court. A trial court may impute income to a party when it finds that party to be voluntarily underemployed without just cause. See Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). We need not reiterate defendant's claims about her job termination in November 2007 from employment at which she earned $127,600 annually after three years, or her initially undisclosed receipt of severance monies totaling $62,000. Suffice it to say that imputing $100,000 annual income to her, which first occurred in 2005 and then again in November 2008, appears reasonable.

We do not disturb the factual findings and legal conclusions by a trial court "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Based on our review of the record, we conclude the factual findings and legal conclusions of the motion judge were supported by competent, relevant and credible evidence. Id. at 412. Although defendant has engaged in an exhaustive job search as corporate in-house counsel to no avail, she has no prior work history in that capacity. It seems obvious that by choosing to look for work in an area in which she has no prior experience, she may well be hampering her chances of actually getting a job. A capable professional able to earn in excess of $100,000 a year, who chooses not to work, should have income imputed to him or her commensurate with past earnings.

Defendant also asserts that the judge's order did not take into account the parties' son's ability to earn income. Nothing in the record indicates that the child was previously employed or is currently in a position to be employed. In fact, defendant asserts in her brief that when she obtained a job for him during his high school years, he just stopped going to work and lost the position as a result.

Defendant also contends that the percentage of her contribution should not exceed the dollar amount she would have to pay if her son attended a New Jersey state school such as Rutgers or the College of New Jersey. She offers no law in support of the proposition. Moreover, her own connections with Lehigh made it a reasonable choice given the quality of the school, the educational background and incomes of both parents.

Defendant avers it was error for the court to sanction her because she did not tell plaintiff that the child for whom he was paying support no longer lived with her. Contrary to defendant's assertion, the court did not question her decision that the child had to leave her home because of his conduct; the judge only found it improper that she kept silent while continuing to collect child support. That conduct warranted the sanction.

Defendant also contends the court erred by not requiring plaintiff to pay $10,000 for unanticipated child-related expenses she claims she incurred when he missed visitation over years. The argument is entirely without foundation in law or fact and does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Additionally, defendant alleges that the court should not have calculated child support pursuant to the Guidelines factoring in her imputed income. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix to R. 5:6-A (Guidelines). As we have said, the decision to impute income to her was not error. We will therefore not address this argument further.

Defendant also disputes the motion judge's characterization of the $62,000 she was paid by her former employer as severance pay. She claims it was solely retirement account money and/or settlement money that should not have been considered available earnings. Defendant cannot deny, however, that a check for that amount was paid to her outright by her former employer when the job ended.

Defendant's contention that the court improperly calculated child support by failing to take into account unreimbursed medical expenses lacks merit. Defendant did not document those purported expenses.

In general terms, defendant argues that the improper use of the Guidelines, called the "formula" in her brief, caused an unjust and inequitable result. We see no merit in this argument either.

Defendant characterized the court as arbitrary and unreasonable in refusing to issue her a credit for the Ford Explorer she bought for her son and for the various repairs and body work she paid for as he damaged the vehicle over time. She offers no explanation as to why her unilateral purchase of the vehicle for a teenager struggling with drug and alcohol issues was reasonable, nor why that unilateral decision should be underwritten by plaintiff.

As to the reconsideration motion, defendant also asserts that the court erred by failing to readjust child support in light of her temporary disability. Temporary fluctuations in income do not warrant adjustment in child support. See, e.g., Bonanno v. Bonanno, 4 N.J. 268, 275 (1950); Lepis v. Lepis, supra, 83 N.J. at 151; Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009). The same is true of any purported loss of value in her investments.

Lastly, defendant accuses plaintiff of engaging in an improper ex-parte communication with the court when he consented to pay fifty-eight percent of the extracurricular activity costs for the child residing with defendant. That concession was made in a certification to the court and was not the result of improper contact. We see no error.

Affirmed.

(continued)

(continued)

12

A-3355-08T3

December 28, 2009