YOLANDA SHUBRICK v. THURMAN E. PHILLIPS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5373-08T35373-08T3

YOLANDA SHUBRICK,

Plaintiff-Appellant,

v.

THURMAN E. PHILLIPS,

Defendant-Respondent.

________________________________________________________________

 

Submitted June 22, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, Docket No. FD-07-5244-96.

Drinker, Biddle & Reath, attorneys for

appellant (Melissa A. Graff, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Yolanda Shubrick appeals from a May 27, 2009 order of the Family Part requiring plaintiff to pay child support of $25 per week together with arrearages of $5 per week, as well as an August 11, 2008 order awarding custody of plaintiff's then sixteen year-old daughter to defendant Thurman Phillips, the child's father. We affirm the denial of a change in custody and reverse the award of child support.

These are the relevant facts. As we have noted, the parties are the parents of a daughter, sixteen years of age at the time of the original custody order. By order of August 11, 2008, defendant was awarded primary residential custody of the child and plaintiff was granted visitation from 12:00 noon to 6:00 p.m. every other Saturday and Sunday.

Although the record is sparse as to the factual background of the original custody award, what prompted this application was plaintiff's belief that she was entitled to more time with her daughter. Specifically, between March 23 and April 30, 2009, the daughter packed all of her clothes and went to plaintiff's house. This conduct occurred on three separate occasions. Plaintiff contacted the daughter's law guardian and attempted to return her to defendant's house each time the daughter appeared at times inconsistent with scheduled visitation. On May 1 and May 8, 2009, the daughter was locked out of defendant's house and had to wait on the porch until after 8:30 p.m. for defendant to return home.

In addition, according to plaintiff, the child was obligated to attend counseling, but plaintiff claimed that defendant did not make the proper arrangements; moreover, plaintiff alleged that defendant was not feeding the child and treated her worse than his other two children who lived with him.

Defendant contended that plaintiff did not comply with the custody arrangements. He alleged that plaintiff would allow the daughter to stay with her beyond her visitation time, not answer the phone when defendant called and became belligerent when she spoke to defendant. "On two or three different occasions," plaintiff would not relinquish custody of the child until defendant brought police with him to retrieve her. Plaintiff cursed and yelled at a detective when he called her to insist that she obey the custody arrangements. On another occasion when defendant went to pick up the child, plaintiff's boyfriend threatened to shoot defendant. Also plaintiff did not prepare the child to leave on time on plaintiff's scheduled visitation days. Also, she missed school on two days and stayed at plaintiff's house. Defendant explained that the child did not have house keys because she had lost two sets previously, and because he did not want her missing school and staying at his house. In response to plaintiff's allegation that the child was not attending counseling, defendant claimed that the child was receiving counseling from a licensed therapist-mentor three times per week.

In urging that she should spend more time with plaintiff, the child allegedly wrote a letter to the law guardian and the motion judge requesting more time with her mother. Defendant challenged the bona fides of the letter claiming that the child stated that she told him that she did not write the letter. The judge agreed, concluding that the writing style was different from the child's speaking style.

The judge determined that there was no basis to alter the custody or visitation arrangement and denied plaintiff's application for that specific relief.

Relevant to the calculation of child support, the record shows plaintiff was unemployed, on welfare and received food stamps. In addition, she received child support for her two other children and had no other source of income. The judge imputed minimum wage income to plaintiff of $286 per week. Based on the New Jersey Child Support Guidelines (the Guidelines), Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2010), calculation, plaintiff owed $0 in child support, but the judge ordered plaintiff to pay $25 per month in child support. Her sole reason for deviating from the Guidelines was because "money is needed to raise a child[.]" This appeal followed.

On appeal, plaintiff urges that the judge erred in awarding child support to defendant because she failed to make factual findings to support her decision to deviate from the Guidelines and because the judge did not make factual findings to support the decision to impute income to plaintiff. We agree.

"A court may deviate from the Guidelines only when good cause demonstrates that application of the Guidelines would be inappropriate." Lozner v. Lozner, 388 N.J. Super. 471, 480 (App. Div. 2006). We will reverse a motion judge's deviation from the Guidelines if we find that the judge abused her discretion. See Winterberg v. Lupo, 300 N.J. Super. 125, 132 (App. Div. 1997).

The judge must "make specific findings that would explain why the Guidelines were disregarded." Winterberg, supra, 300 N.J. Super. at 132. See also R. 5:6A. When not adhering to the Guidelines, the judge

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.

[N.J.S.A. 2A:34-23.]

In Winterberg, supra, we noted that the motion judge's deviation from the guidelines was "an unacceptable practice," because "the judge did not make specific findings that would explain why the Guidelines were disregarded." 300 N.J. Super. at 132. We observed that the motion judge's finding that "plaintiff's austere budget and her obligation to pay substantial transportation expenses" was not a sufficient explanation to warrant a deviation from the Guidelines. Ibid. We concluded that this was an unacceptable exercise of discretion because the judge gave no reasoning for his deviation other than a conclusory statement. Ibid.; see also A.N. ex rel. S.N. v. S.M., 333 N.J. Super. 566, 577 (App. Div.) (reversing child support order because the "trial judge neither applied the child support guidelines nor found that a deviation from the guidelines was appropriate, in which case she would have determined the child support award based upon the statutory factors"), certif. denied, 166 N.J. 606 (2000).

The judge did not provide an adequate explanation for her deviation from the Guidelines. Here, as in Winterberg, the judge merely offered a conclusory statement to explain the deviation from the Guidelines.

We reach the same result regarding the imputation of income. In reviewing a decision to impute income, we will not disturb the "court's discretionary authority unless 'the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.'" Ibrahim v. Aziz, 402 N.J. Super. 205, 210 (App. Div. 2008) (quoting Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004)).

A judge may impute income to a non-custodial parent when she is voluntarily unemployed or underemployed without just cause. Ibrahim, supra, 402 N.J. Super. at 211.

When determining whether to impute income, the court should consider four factors: (1) "the employment status of the parent . . ." (2) "the reason and intent for the voluntary underemployment or unemployment;" (3) "the availability of other assets that may be used to pay support;" and (4) "the ages of any children in the parent's household and child-care alternatives."

[Ibid. (quoting Pressler, supra, Appendix IX-A(12) at 2293).]

In Caplan v. Caplan, 182 N.J. 250, 270 (2005), the Court imputed income to the non-custodial parent because he was unemployed but capable of earning income based on his previous employment. The trial judge should determine how much income to impute based on the child support guidelines and "a party's responsibility for care of children[.]" Ibid. To determine the amount of income to impute, the judge should "impute income based on the full-time employment [] at the New Jersey minimum wage" if the parent's potential earning capacity or former income on file with the New Jersey Department of Labor (NJDOL) is not available. Id. at 265 (quoting Pressler, supra, Appendix IX-A).

Here, there was no consideration of any of the factors alluded to in Caplan nor any basis for suggesting that plaintiff was employable or had other child care responsibilities. As to applying the Guidelines, the judge found that plaintiff was unemployed and received food stamps from welfare. Even with the imputation of minimum wage income, plaintiff had no obligation for contribution to child support under the guidelines. The reasoning that "a child needs support" is unassailable, yet standing alone, it cannot form the basis of a deviation from the guidelines. We conclude that the judge erred in awarding child support.

In regard to the request to alter the custody arrangements, we have reviewed the record and conclude that plaintiff's arguments are without merit. R. 2:11-3(e)(1)(E). Nothing in the record supports plaintiff's position that the custody should be modified or changed. Again the record is sparse on the issue, but it is clear that there are substantial issues related to the care and custody of the child. Nothing in the record suggests that the present order of custody and visitation warrants revisiting.

 
We reverse the award of child support and affirm the denial of a modification of the August 11, 2008 custody and visitation order.

The child was born in April 1993, and is now 17.

Although the Notice of Appeal indicates an appeal from the August 2008 order, plaintiff's brief indicates that she is appealing from the determination of the motion judge to continue primary physical custody of the child with defendant. That issue was determined at the child support hearing. The record does not indicate that an order was entered memorializing the denial of that relief; nevertheless, we address the issue on this appeal.

(continued)

(continued)

9

A-5373-08T3

August 27, 2010