RICHARD C. NAVIN v. LAURIE NAVIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5607-08T25607-08T2

RICHARD C. NAVIN,

Plaintiff-Appellant,

v.

LAURIE NAVIN,

Defendant-Respondent.

___________________________________

 

Argued June 8, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Somerset County, Docket No. FM-18-1122-01.

Nicole Huckerby argued the cause for

appellant (Pellettieri, Rabstein &

Altman, attorneys; John A. Hartmann, III,

of counsel and on the brief).

Laurie Navin, respondent, argued the

cause pro se.

PER CURIAM

Plaintiff Richard C. Navin and defendant Laurie Navin were divorced by judgment entered on June 4, 2003 on a complaint that was filed in June 2001. This is the third appeal from that judgment. See Navin v. Navin, No. A-0839-03 (App. Div. Mar. 11, 2005) (Navin I); No. A-6745-04 (App. Div. Jan. 25, 2007) (Navin II). At the time of the Navins' divorce, defendant's salary was about $32,500. Plaintiff's average gross income from his dental practice from 1981 through 2003 was about $370,000.

Plaintiff appeals from an order entered on remand following Navin II. The case was remanded for reconsideration of issues related to support set on remand in Navin I $6220 per month for alimony and $1557 per month for child support. Navin II, supra, slip op. at 10. We provided specific direction for remand. The trial judge was to consider whether the $1000 monthly child support to which the parties had agreed on remand in Navin I was consistent with the best interests of the children, Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003); R. 5:6A. Navin II, supra, slip op. at 14-15. In addition, because we had affirmed the trial judge's finding that defendant's monthly expenses for herself and the children were $6735 on the first appeal but that the trial judge had erred in calculating taxes on the alimony, the judge was also directed to reassess the amount of alimony needed to permit plaintiff to pay her income tax. Id. at 16-17.

On this remand, the trial judge conducted a hearing and set alimony in the amount of $47,912 per year, $3992.66 per month; determined that child support in the amount of $1000 per month for two children was consistent with their best interests for the period between June 1, 2003 and the date of the oldest child's eighteenth birthday; and directed that defendant compensate plaintiff for overpayments of alimony from June 1, 2003 by way of lump sum payment and credit against future alimony payments. In addition, the judge awarded defendant $20,000 for counsel fees and costs she incurred on remand.

On this appeal, plaintiff raises several claims of error relevant to the judge's factual findings and to his discretionary determinations on child support, tax on alimony and counsel fees. Defendant urges us to affirm because the trial judge did not abuse his discretion in addressing the issues remanded or awarding counsel fees to her. Because the judge followed this court's mandate and made determinations based on factual findings that are adequately supported by the record and not inconsistent with a proper exercise of the court's discretion, we affirm.

The procedural history of this protracted divorce litigation and the pertinent facts are set forth in our prior decisions. Accordingly, there is no reason to repeat them at length here. Thus, we turn to consider the issues raised by plaintiff on appeal and address the relevant facts as needed.

In Navin II, we determined that on the first remand the parties "narrowed the issues by agreeing that $1000 [per month] was a proper amount for child support." Slip op. at 6. As the judge had disregarded that agreement, we remanded with direction for the judge to determine whether the $1000 agreed support was consistent with the children's best interests and accept their agreement if it was.

On appeal, plaintiff suggests that he rejected the $1000 amount on the second remand because it was not in the best interests of his children. That claim is not supported by the record. Initially, the parties disagreed about whether the $1000 child support was for one or two children. In a memorandum submitted to the trial judge on May 21, 2007, plaintiff asserted that $1000 was for two children. He did not argue that the child support was too low. At first, defendant objected on the ground that $1000 was appropriate for one child, but she abandoned that objection and agreed to accept plaintiff's position.

Plaintiff also argues that the judge did not follow this court's direction to consider whether the child support to which the parties agreed is reasonable. While the judge's factual findings on this point are not set forth in the judge's written decisions, those findings were placed on the record on October 17, 2008. The judge explained:

I do not know what the guidelines would call for as of the time that [the prior judge] calculated child support. It was the $1500 a month, coming down to I got here a worksheet that says [$]362 a week, and that would be for let me just that would be for 4.3 weeks a month [at $]362.

And in this situation, I want to be abundantly clear. I know that the judge has consistent with the best interest of the children . . . an obligation to look at and consider the number that the guideline calls for and the number that's agreed upon by the parents.

The deviation from these numbers is not that significant. The deviation from these numbers of a hundred dollars a week or a hundred and twenty or thirty dollars a week for the two children . . . is not significant enough for a judge to trump, reverse, set aside the judgment of the parents, who know the situation the best. I will not exercise my discretion to set aside the stipulation reached . . . .

In short, plaintiff is wrong to contend that the trial judge did not consider the adequacy of the child support in light of the child support guidelines.

Plaintiff also raises objections to the trial judge's findings relevant to the impact of taxes on defendant's alimony. He contends that the judge erred in including taxes on defendant's unearned income and excluding certain tax credits in assessing her tax obligation. This argument is based on plaintiff's misreading of our decision in Navin II.

In Navin II, we observed that the judge had double counted defendant's investment income. On remand in Navin I, the judge had determined that defendant's investment income would substitute for savings comparable to the marital standard of living. Nonetheless, in assessing the income available to defendant to meet her needs, the judge included defendant's unearned income as money defendant would have to spend on expenses. Navin II says nothing about disregarding taxes on unearned income, and we see no basis for finding that the judge abused his discretion by setting alimony in an amount that would allow defendant to pay taxes on unearned income without undercutting her ability to save at a rate reasonably comparable to the marital standard of living.

Plaintiff also contends that the trial judge erred by mistakenly concluding that defendant did not receive a homestead rebate in 2003 and by underestimating a credit against tax attributable to losses defendant sustained in 2003. As we noted in our prior decision:

We do not disapprove of the judge's effort to select a figure for taxes on alimony that is less than exact and fairly derived to avoid repeated applications for recalculation of alimony based upon insubstantial changes in federal and state tax laws and decreases in exemptions and deductions. Lepis v. Lepis, 83 N.J. 139, 154 (1980) (noting that courts "should make greater efforts to provide in advance for change [so as to] enhance the stability of judicially fashioned arrangements and make unnecessary a return to court"). Mathematical precision is not required. The determination of an appropriate tax adjustment, like the determination of other factors relevant to appropriate alimony, requires a sound exercise of discretion based upon competent evidence and an accurate understanding of tax consequences. Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). . . .

 
[Navin II, supra, slip op. at 11-12.]

There is no question that the judge was mistaken about the $800 homestead rebate; although defendant received it, the judge concluded that she had not. The error does not redound to plaintiff's detriment with respect to taxable income, however. If the judge considered the rebate, then defendant's taxable income would have been higher, not lower. Indeed, based on the exhibit to which plaintiff points to establish the mistake, defendant reported the $800 rebate she received for 2003 as taxable income on her 2004 federal income tax return. If plaintiff's argument is intended to demonstrate an error relevant to income available to defendant, then the $67 monthly pre-tax benefit represented by a rebate is too insignificant and too uncertain to warrant attention.

With respect to the judge's determination on tax credits based on losses, the judge considered the opinions of three experts and accepted a figure that represented "usable" credits for the full year reported by plaintiff's expert. Plaintiff points to nothing in the record that would allow us to conclude that the figure utilized by the judge, on recommendation of his expert and consideration of the pertinent facts, is mistaken in any way.

We reiterate what we stated in our prior decision. One of the several goals of a proper support award is to minimize disputes about matters that have no significant and recurring impact on the ultimate purpose of alimony in a case involving permanent alimony. The purpose of alimony is to permit both parties to maintain a standard of living that is "reasonably comparable" to the marital standard of living. Steneken v. Steneken, 183 N.J. 290, 299 (2005); Crews v. Crews, 164 N.J. 11, 16 (2000). Considering the judge's determination from that perspective, there is no reason for us to intervene.

Plaintiff's three objections to the counsel fee award lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The judge considered the appropriate factors and made factual findings that are adequately supported by the record. R. 1:7-4(a); R. 4:42-9(a)(1); R. 5:3-5(c); Mani v. Mani, 183 N.J. 70, 93-95 (2005) (discussing proper application of N.J.S.A. 2A:34-23 and the factors set forth in Rule 5:3-5(c)). There is nothing that would justify this court's interference with the well-reasoned determination about a matter committed to the discretion of the trial judge. Williams v. Williams, 59 N.J. 229, 233 (1971).

Affirmed.

 

The order was entered on April 22, 2009 and amended on June 25, 2009. In both instances the judge issued written decisions. We refer to one order and discuss the terms at issue as amended.

(continued)

(continued)

9

A-5607-08T2

August 30, 2010