JAMES KENNETH HOLDEN v. DRINA ARCHER HOLDEN

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1259-09T3

JAMES KENNETH HOLDEN,

Plaintiff-Appellant,

v.

DRINA ARCHER HOLDEN,

Defendant-Respondent.

__________________________________

October 28, 2010

 

Submitted: October 6, 2010 - Decided:

 

Before Judges Axelrad and Lihotz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2230-00.

 

Donahue, Hagan, Klein, Newsome & O'Donnell, P.C., attorneys for appellant (Lynn Fontaine Newsome, of counsel and on the brief; Terryann Bradley, on the brief).

 

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial manner, plaintiff James Holden (father) appeals from the child support award contained in the September 30, 2009 and November 2, 2009 orders of the Family Part. We affirm in part, and reverse and remand in part.

Pursuant to the parties' property settlement agreement, (PSA), incorporated in their May 25, 2004 final judgment of divorce, defendant Drina Holden (mother) was designated primary residential parent of their two sons, then ten and six years old. The PSA provided, in part, that father would pay $1,600 per month in child support pursuant to the Child Support Guidelines (guidelines), see Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2429 (2011), and mother would waive alimony.1

In 2007, father moved to Dubai to pursue an employment opportunity. In September 2007, father filed a motion to modify parenting time and custody, pursuant to which the court entered orders requiring a plenary hearing as to support, and setting forth a discovery schedule. On August 11, 2009, the parties entered into a consent order, memorialized on September 10, 2009, which modified their PSA so father would become the primary custodial parent of their eldest son and he would relocate with father to Dubai, and leaving the support determination, as of September l, 2007, to the court. Father also paid $25,000 towards potential child support arrears, without prejudice.

The parties submitted their positions and case information statements (CIS) to the court. Father submitted an August l9, 2009 letter from his employer that he earned $240,454.91 annually. Father's listed monthly expenses were $19,538, which included his $1,600 support obligation, a $7,400 tax reserve, and a $5,000 debt service against $1,154,119 in outstanding judgments and debts, including state and federal taxes from 1997 through 2002.2 As father's CIS was prepared prior to his eldest son's relocation, it did not include expenses pertaining to him. The attorney's submission represented, without documentation, that father's gross annual income for 2007 was $208,890 and for 2008 was $240,484. He further represented that father was not paying federal or state taxes but father anticipated addressing his existing and future liabilities and becoming current. The attorney estimated father's tax bracket to be between 25% and 28%, resulting in an average annual tax liability on his current income of $63,721 and net income of $176,825 annually. The submission further stated, without documentation, that father anticipated annual expenditures of approximately $20,000 for private tutors for his son, who had fallen behind in school, and $27,247 for private school tuition and associated costs. The submission also urged the court to consider father's obligation under the consent order to finance his son's roundtrip tickets to and from Dubai, which he anticipated being a minimum of three times a year at $1,800 per roundtrip.

Father also obtained a vocational expert report concluding that mother was "underemployed" as an office manager for a nonprofit entity earning $15 per hour, extrapolated to a gross annual salary of $31,200 for a forty-hour week. The expert opined that forty-nine-year-old mother had the immediate ability to earn gross annual income of $60,000 to $72,000, based on her educational credentials and work experience. Based on father's gross annual income at $208,890 for 2007 and $240,454 for both 2008 and 2009, and mother's imputed gross annual income of $72,000 for each of the three years, father submitted calculations and posited his child support under the guidelines alone at $401 weekly or $1,724 monthly for 2007, and $417 weekly or $1,793 monthly for both 2008 and 2009. Recognizing the parties' combined net income exceeded $187,200 annually, father urged that after consideration of the criteria contained in N.J.S.A. 2A:34-23a, he should have paid a total of $3,000 monthly in child support for both children, resulting in an additional obligation of $33,600 for the past two years commencing September 1, 2007. See Pressler & Verniero, supra, Appendix IX-A(20). Father further calculated his prospective child support under the guidelines, based on each party having one child, to be $207 weekly ($315-$108) or $890 monthly. Father posited that consideration of the statutory criteria should result in his prospective total support obligation for their younger son to be $2,000 monthly.

Mother's CIS reflected, with documentation, 2008 annual income of $24,075 gross and $20,888 net, and average weekly earned income through May 31, 2009 of $546.94 gross and $451.92 net (which would extrapolate annually to $28,440.88 gross and $23,499.84 net). Mother listed monthly expenses for herself and the two children at $5,566. Her attorney's submission noted mother had recently re-entered the workforce and her Fellowship and employment history pertained to non-profit community-based organizations, which offered lower salaries, and thus urged the court to utilize $25,000 as her gross annual income for child support calculations. The submission also challenged father's stated earnings, contending, in part, that his $240,000 annual salary from work should be considered as net, not gross, as he had not paid any taxes to the federal government since l997, and had sought employment outside the country, in part, to evade his tax obligation. It further referenced father's June 2008 CIS, supplied to the trial court but not contained in the appellate record, to demonstrate that father had not made any payments towards significant expert and counsel fees, and urged the court to disregard father's purported monthly expenses for tax reserves and debt service. Mother posited that child support should be calculated on father's net annual income of $240,000, and her gross annual income of $25,000, and with consideration of the statutory factors and extrapolating father's gross annual income at $400,000, urged that his retroactive child support for the two children should be $8,000 monthly and his prospective obligation for their youngest son should be $5,000 monthly.

In a September 30, 2009 letter opinion, the court found father presented no credible evidence as to withholding taxes and, based on the past practice of ignoring his tax obligation, concluded father's child support obligation should be calculated on net annual income of $240,000. The court found mother was not underemployed and earned $30,000 in gross annual income for child support purposes based on the following facts: (1) father's knowledge of her educational background and decision not to impute any income to her for child support purposes when he negotiated the 2004 PSA; (2) mother's employment history reporting she had never earned more than $40,000 annually; (3) mother's twelve-year period of not working outside the home while raising the parties' children; and (4) mother's recent re-entry into the workforce at entry level in her field of expertise. The court also found father's total monthly expenses attributable to the tax reserve and debt service were not credible, and father failed to provide supporting evidence as to the tuition expenses for his son.

The court began with the premise that the maximum base annual support for two children under the guidelines would be $606 per week, noting there should be a discretionary supplementation using, in part, N.J.S.A. 2A:34-23a. The court accepted mother's recitation in her CIS regarding the parties' marital standard of living ($20,065 monthly), and mother's and the children's post-judgment standard of living ($5,566 monthly). Based on mother's annual net salary of $28,000, the court found she had more than a $200,000 annual shortfall from the parties' marital standard of living and a $39,000 current annual shortfall. The court concluded that, in contrast, father was able to maintain his marital standard of living and was underpaying child support. The court then reasoned that father had ninety percent of the income, mother had ten percent of the income, and concluded "the children's additional needs [in excess of the $606 weekly ($31,512 annually)] amounted to $45,000 annually or total needs of $76,000." The judge then determined that, based on father's "financial good fortune," his "retroactive support obligation amounted to $7,600 per month or $64,400 annually," or a total of $90,000, later recalculated to $119,000, for the twenty-four month period.3

In calculating prospective child support for the fifteen-year-old son with father in Dubai and the eleven-year-old son with mother in the United States, because neither party provided anticipated expenses, the court considered mother's "current expenses as extrapolated from two children to one and inferred those expenses [we]re mutual." The court found, without explanation, father's monthly expenses in Dubai were "not credible," the debt service and tax reserve should not be considered as expenses, and father "has significantly more disposable income than reported whatever his true income and expenses may be in Dubai." The court established father's prospective support obligation for his younger son to be $3,514 per month, explaining as follows:

The base line child support for one child under the Child Support Guidelines up to $3,600 net weekly is $453 or $23,556 annualized. From the analysis of the additional needs for one child as determined from the defendant's financials, the court finds the additional needs for one child would amount to $30,500 [annually] or total needs of $54,056 [annually]. The plaintiff's financial responsibility for the child in New Jersey is $48,650 annually or $4,054 per month. The defendant's financial responsibility for the child in Dubai is $5,400 [annually] or $540 per month. The net amount to be paid by the plaintiff to the defendant is $3,514 per month effective September l, 2009 and each month thereafter until further order of this court.4

Father's prospective child support obligation and arrears were memorialized in court orders of September 30, 2009 and November 2, 2009. This appeal ensued.

On appeal, father argues the trial court erred in determining child support: (1) without specifically evaluating the factors set forth in N.J.S.A. 2A:34-23a; (2) without calculating the children's actual needs and thereby denying father the ability to parent his children; and (3) without considering father's financial liabilities as required by N.J.S.A. 2A:34-23a(9). Father also challenges the court's utilization of $30,000 gross annual income for mother rather than accepting his vocational expert's imputation of $72,000 gross annual income for her.

We begin by addressing father's last argument, which we do not find persuasive. We are satisfied there is a sound basis in the record for the court's decision not to impute income to mother. The court provided ample reasons to support its decision, including: mother's current income as documented by 2008 tax returns and W-2 statements, as well as current pay stubs; her work history; and the parties' past practice in the 2004 PSA. We therefore affirm this portion of the court's determination.

We reverse and remand, however, as to the court's determination of retroactive and prospective child support. It is undisputed that where family income exceeds the maximum amount under the guidelines, the court has discretion to calculate child support using the maximum support under the guidelines and "combin[e] that preliminary figure with a supplemental award subject to the provisions of N.J.S.A. 2A:34-23a . . . ." Pascale v. Pascale, 140 N.J. 583, 595 (l995).

N.J.S.A. 2A:34-23a directs the court to consider, but not be limited to, the following factors in determining child support in high income cases:

l. 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.

 

The Family Court "must consider" the statutory factors in determining the supplemental award. Caplan v. Caplan, 182 N.J. 250, 271 (2005). The court must also provide "clearly delineated and specific findings addressing the statutory factors relevant to any award or modification of child support." Loro v. Colliano, 354 N.J. Super. 212, 220 (App. Div.), certif. denied, l 74 N.J. 544 (2002).

The Supreme Court has also directed that while the parties' respective income percentages are to be considered for calculating child support under the guidelines, those percentages cannot be used to determine the supplemental child support component. The Court elaborated:

[B]ecause the income and assets of each party are only two of the many statutory factors the trial court must consider in determining a fair and just child support award, the allocation equation utilized under the guidelines-based award has little or no application to the amount of additional support determined through analyzing the N.J.S.A. 2A:34-23 factors.

[Caplan, supra, 182 N.J. at 271.]

In Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002), we explained the reason a judge should not extrapolate above the threshold using the respective incomes is because "the extrapolation undermines the statistical basis of the Guidelines."

Here, the trial court did properly determine the maximum amount of support under the guidelines. We are unable to discern, however, the basis upon which the court calculated the supplemental award for both retroactive and prospective child support.5 The court made no reference to any one of the statutory factors other than the parties' incomes and then appeared to utilize their relative percentages (90% to father and 10% to mother) in calculating the supplemental component of child support, contrary to our instruction in Isaacson and the Court's ensuing mandate in Caplan.

Additionally, the trial court failed to articulate or analyze each child's actual needs. See Strahan v. Strahan, 402 N.J. Super. 298, 3l0 (App. Div. 2008) (holding that the Family Court must make specific findings of fact as to the children's needs). The court appeared to accept carte blanche mother's alleged expenses for herself and the children listed in her CIS and to consider the expenses contained in mother's rendition of the distant past marital lifestyle. The court did not, for example, assess the statutory factors and specifically consider "certain categories of expenses that are partially included in the guidelines award and add a portion of those expenses to the maximum guidelines-based award to arrive at a fair child support award." Caplan, supra, 272 N.J. at 272. Instead, in calculating the retroactive child support award, the court made father responsible not only for the entirety of mother's stated current monthly expenses, which included, for instance, savings/investment, pledges to the Montclair library, and significant sums for dry cleaning and hair care most likely not attributable to the children, but required he pay her an additional $2,034 monthly. While an incidental benefit to the custodial parent is permissible, anything beyond that is of particular concern where there is no right to alimony. Loro, supra, 354 N.J. Super. at 225-26.

We also note that father was obligated under the parties' consent order to pay substantial transportation expenses for his eldest son to visit mother in the United States. The court failed to take those expenses into account in calculating father's prospective child support obligation. We find no error by the court in excluding, as unsupported, the professed private school and tutoring expenses that father anticipated for their eldest son in Dubai or father's past and current income tax obligations. However, as it is necessary to remand this matter to the trial court to recalculate retroactive and prospective child support in accordance with the statutory factors and case law, we do not foreclose the submission of such additional documentation as the parties deem relevant.

Affirmed in part; reversed and remanded in part.

 

1 The record does not reflect the basis for the calculation. We note, however, the report of father's vocational expert reflects that mother was not employed outside the home from October 1996 to January 2008.

2 Father represented in his CIS that he also had a tax liability from 2004 through 2008, but he was unaware of the amount owed as the liability had not as yet been calculated.

3 Although there are a variety of mathematical errors in the court's opinion, it appears the court set father's retroactive child support at $7,600 monthly. The September 30, 2009 order only reflects father's aggregate retroactive obligation of $90,000. It also appears the court reached the ultimate total arrearage of $119,000, reflected in the amended order of November 2, 2009, based on the following calculation: $7,600 x 24 months ($182,400), offset by $38,400 ($1,600 x 24 paid by father pursuant to the PSA), and $25,000 paid by father, without prejudice, under the parties' September 10, 2009 consent order.

4 There appears to be another mathematical error in the court's calculation. If father's 90% share of $54,056 is $48,650 annually ($4,054 monthly), then mother's 10% share would be $5,406 annually, rounded to $5,400, or $450 monthly. The resulting net obligation of father would thus be $3,604, not $3,514.

5 It initially appeared that in determining retroactive support, the court calculated the children's additional needs to be $45,000 annually, based on two-thirds of mother's stated current expenses for herself and the two children of $5,566 monthly, which would be about $3,700 monthly or $44,500 annually. That figure, added to the maximum guidelines award of $606 weekly ($2,624 monthly), would result in the court's $76,000 annual "total needs" figure. This mechanical allocation is not a proper method to determine each child's additional needs. Inexplicably, however, the court then concluded that father's retroactive support obligation should be $7,600 per month, which is $91,200 annually.

The court also provided no explanation as to how it calculated each child's prospective additional need to be $30,500 annually, and we are unable to discern its rationale for adding that figure to the maximum guidelines award of $453 weekly ($23,556 annually).