MARK J. DiFILIPPO v. KRISTIE M. DiFILIPPO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3985-09T1

MARK J. DiFILIPPO,

Plaintiff-Respondent,

v.

KRISTIE M. DiFILIPPO, n/k/a

KRISTIE M. MARZ,

Defendant-Appellant.

________________________________

March 14, 2011

Submitted March 2, 2011 - Decided

Before Judges Lihotz and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-665-06.

Stacy L. Spinosi, attorney for appellant.

Steven S. Deringer, attorney for respondent.

PER CURIAM

Defendant appeals from the February 19 (filed February 25) and March 18, 2010 orders of the Family Part in this post-judgment matrimonial proceeding. These orders addressed the calculation of child support, the admeasurement of child support arrearages, and the reallocation of counsel fees. Because we find that the Family Part neither abused its discretion nor misapplied the applicable law, we affirm, except for one issue that requires further development in the Family Part.

I.

The parties were married in March 2001, and their only child was born in August of that year. After enduring marital difficulties that ultimately led to their separation, the parties proceeded to obtain a divorce that was entered on August 15, 2006. The parties proceeded pro se, and the Family Part prepared and entered the final judgment of divorce, which expressly addressed only the economic issue of child support. By the parties' mutual agreement, the court set plaintiff's monthly child support obligation at $500, and provided that such payments were to be made by plaintiff to defendant directly.

Thirty months later, plaintiff filed a motion seeking: (1) a declaration of joint custody, with plaintiff seeking the designation as parent of primary residence; (2) a parenting time schedule; (3) a determination of child support according to the child support guidelines; and (4) the allowance for plaintiff to claim the minor child as a dependent for income tax purposes in even-numbered years, commencing in 2008. Defendant responded with her own motion seeking: (1) enforcement of litigant's rights due to plaintiff's failure to pay $500 per month child support; (2) a declaration that plaintiff become current in his child support obligation; (3) the entry of a wage execution for future child support payments; and (4) an order compelling plaintiff to pay defendant's counsel fees. Defendant also opposed plaintiff's effort to be designated the parent of primary residence.

Virtually all of the contested issues were resolved in the summer of 2009 through court-sponsored mediation. The parties' agreement was memorialized in an order of the Family Part dated July 31, 2009,1 which ordered that the parties would share joint custody of their child, delineated a parenting time schedule, alternated the income tax child-dependency status between the parties, and delegated to the parties' attorneys the obligation to "run the Child Support Guidelines to determine the new child support amount based upon the [agreed-upon] parenting plan."

Unfortunately, several months passed without a successful resolution of the "new child support amount." Frustrated by the delays, plaintiff filed a new motion in February 2010 asking the court to determine child support and award him counsel fees. In his certification in support of this motion, plaintiff emphatically indicated, "my request to be designated as the Parent of Primary Residence is WITHDRAWN . . . . Thus, the only issues remaining for the Court to dispose of are the amount of child support and the amount of arrears." Defendant responded with a cross-motion seeking enforcement of litigant's rights by: (1) "compelling the [p]laintiff to pay arrears from direct pay prior to probation account," (2) "compelling the [p]laintiff to pay bank records costs," and (3) "compelling the [p]laintiff to pay the [d]efendant's attorney's fees and costs for this application."

On February 19, 2010, the Family Part granted plaintiff's motion and denied defendant's cross-motion. The court found that the principles announced in Benisch v. Benisch, 347 N.J. Super. 393 (App. Div. 2002) and applied in Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009) were applicable. Accordingly, it calculated child support under this dual lens, and determined from the financial data provided that plaintiff's "child support shall be $25.00 per week. This shall be effective March 27, 2009." In addition, the court applied the nine factors contained in Rule 5:3-5(c) in determining that plaintiff was entitled to an award of counsel fees and defendant was not. In a supplemental order dated March 18, 2010, the court awarded plaintiff $730 in reallocated counsel fees, which represented approximately thirty-five percent of the amount that plaintiff requested. This appeal followed. In response to defendant's notice of appeal, the motion court submitted a written amplification of the rationale undergirding its orders pursuant to Rule 2:5-1(b).

II.

A.

Before we address the merits of defendant's appeal, we first recognize and overcome a procedural impediment identified by plaintiff. The record demonstrates that defendant filed her notice of appeal beyond the forty-five-day interval called for in Rule 2:4-1(a): "[a]ppeals from final judgments of courts . . . shall be taken within 45 days of their entry." Although the order entered on February 19 resolved all of the issues between the parties, it did not completely determine the amount of reallocated counsel fees. Thus, such order was interlocutory, requiring defendant to file a timely motion for leave to appeal. R. 2:2-3(b). Defendant did not do so; instead, she waited for the March 18 counsel fee order before filing the notice of appeal. Although that final order was not received by defendant until "on or about March 23," a notice of appeal challenging it was required to be filed within forty-five days of the date of its entry: March 18. This was not successfully accomplished, as the filing of the notice of appeal was four days late.2 We have nevertheless decided to reach the merits of the issues raised by defendant by accepting her untimely notice of appeal nunc pro tunc. We have decided to relax our standards of review in this respect, and sua sponte accept defendant's notice of appeal thus conferring jurisdiction upon us to review these orders because the child support issues not only affect the parties, but also their child, the intended beneficiary who has no independent voice in this appeal. See Pascale v. Pascale, 140 N.J.583, 591 (1995); Patetta v. Patetta, 358 N.J. Super.90, 94 (App. Div. 2003); L.V. v. R.S., 347 N.J. Super.33, 41 (App. Div. 2001).

B.

The scope of appellate review of the Family Part's fact-finding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. Settled principles provide that we will reverse only when our review unearths findings that "'are so wholly un-supportable as to result in a denial of justice[.]'" Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). On the other hand, "a [motion] court's 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

C.

In her first point on appeal, defendant argues that the Family Part miscalculated the parties' respective gross incomes for child support purposes. Its first putative error in this regard is alleged to be its treating defendant's weekly earnings as $595 instead of $534; the second is its failure to include employer-paid tuition reimbursement of $5,406 in plaintiff's gross earnings. We disagree with both assertions.

As to the former contention, the Family Part explained that it used data from April 2009 to compute defendant's earnings, and that any lesser amount would be inequitable to employ due to "her clear delay in resolving this issue." The court also noted that the initial application for modification of the $500 per month child support obligation was filed in March 2009 but the custody issues and parenting time disputes were resolved four months later in July 2009, making the utilization of 2009 year-to-date income information appropriate. See Pressler and Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2457 (2011). Defendant's belated attempt to supply 2009 end-of-year data at oral argument of the motion in February 2010 was appropriately rejected by the Family Part judge as untimely, and the utilization of defendant's April 2009 data was not an abuse of discretion.

Regarding defendant's latter argument concerning the exclusion of employer-paid tuition reimbursement from plaintiff's gross income, we agree that the Family Part did not expressly address this issue. Nevertheless, we do not subscribe to defendant's position, largely because even the scanty record supplied to us supports the conclusion that such alleged in-kind payments were expense reimbursements, not includable in plaintiff's gross income for child support purposes. See Pressler and Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2456 (2011) ("Expense reimbursements are not considered income.").

D.

Defendant's second line of attack upon the Family Part's determinations relates to supposed discrete errors committed relating to adjustments to gross income, misapplication of the child support guidelines, mistaken understanding of the jurisprudence relating to "controlled expenses" in shared parenting situations, and a supposed transpositional error.3 We find, except as noted below, that these points are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). We add only the following brief comments.

The "'fairness of a child support award is dependent on the accurate assessment of a parent's net income.'" Caplan v. Caplan, 182 N.J. 250, 265 (2005) (quoting Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2516 (2005)). Our child support guidelines are based on presuppositions about which parent shoulders categories of expenses for the child. Even where custody is shared, the guidelines assume that the parent of primary residence exclusively incurs "controlled expenses," such as clothing and personal care, and those expenses account for a significant percentage of the basic child support amount. The guidelines also presume that both parents incur the remaining "fixed" and "variable" expenses for the child. Benisch, supra, 347 N.J. Super. at 396-97. Where, as here, custody is equally shared, presumptions can present a distorted picture of likely expenditures for the child. Id. at 397.

In Benisch, we suggested methods of treating the parties' sharing of controlled expenses but also said that "if the court has some alternative which it deems more desirable, it should not feel preempted from employing such a device," so that it may "effect[] substantial justice between the parties." Id. at 401. Benisch was deployed by the Family Part in Wunsch-Deffler, supra, 406 N.J. Super. at 509. In accordance with our views in Benisch, and the more recent treatment of those principles in Wunsch-Deffler, the Family Part in this case acted within its discretionary authority to employ a calculation tailored to the circumstances of the parties' custody arrangement and we have no occasion to tamper with that exercise of principled discretion.

On the other hand, we cannot detect the basis for the court's assignment of what appear to be inverted percentages for summer daycare expenses. Even after scouring the record, it remains unclear how and why the Family Part reached this particularized determination, and we share defendant's concern that it may have simply resulted from the human error of transposing plaintiff for defendant and vice versa. Accordingly, on this single issue we remand to the Family Part to reconsider its award of the percentages of summer daycare expenses and to express its rationale pursuant to Rule 1:7-4. We do not retain jurisdiction.

E.

Defendant next criticizes the Family Part for failing to calculate child support arrearages for the period prior to plaintiff's obligation to pay through Probation Services. In its February 19, 2010 explanation for denying such arrearages, the Family Part simply stated, "[t]he [c]ourt reviewed the cancelled checks provided by the Plaintiff and finds that the Defendant's Probation Account correctly reflects his arrears." This cursory statement was greatly expanded in the court's amplification opinion. There, the court noted that its determination was "without prejudice," largely due to what was perceived as either incomplete or incomprehensible proof of unpaid child support. The written amplification stated:

The [c]ourt finds that the proofs submitted by the Defendant were insufficient for the [c]ourt to make a determination that the Plaintiff still owed child support to the Defendant from the direct pay period. No accounting was provided by the Defendant with her certification and the checks attached to the Defendant's cross-Motion did not satisfy the [c]ourt. There were issues concerning whether checks submitted were for the months for which they were dated or "make up" checks. Additionally, direct pay arrears were addressed in the [c]ourt's May 21, 2009 [order] and not accounted for in Defendant's certification.

From our review of the record, we share the Family Part's frustration with the inartful accounting presentation from defendant. In light of our deferential scope of review due to the "the family courts' special jurisdiction and expertise in family matters," Cesare, supra, 154 N.J. at 413, we have no occasion to disturb the court's finding that no arrearages remain from the direct pay period. See N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 342-343 (2010).

F.

Lastly, we address defendant's assertion that the Family Part abused its discretion in denying her application for counsel fees and instead granting plaintiff's reciprocal application. Because we find neither an abuse of discretion nor a misapplication of law, we will not adjust the counsel fee determination of the Family Part.

An award of fees in a Family Part matter is governed by Rule 5:3-5(c). See Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008) ("Rule 4:42-9(a)(1) authorizes the award of counsel fees in a family action on a final determination pursuant to R[ule] 5:3-5(c)."). Rule 5:3-5(c) provides:

Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discre tion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, nul lity, support, alimony, custody, parenting time, equitable distribution, separate main tenance, [and] enforcement of interspousal agree ments relating to family type matters . . . . In determining the amount of the fee award, the court should consider, in addi tion to the information required to be sub mitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reason ableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discov ery; and (9) any other factor bearing on the fairness of an award.

[Ibid.]

In reallocating counsel fees in the sum of $730 $2,125 had been requested the court stated that it was guided by Rule 5:3-5(c)'s nine elements. He also found, after a particularized review of the parties' modest financial situations, that "[p]laintiff acted reasonably in attempting to resolve this [child support] issue without the necessity of filing a Motion. The [c]ourt finds that the Defendant failed to respond in a reasonable time frame and, when she did respond, took positions that were not consistent with New Jersey law." Additionally, the motion court held that defendant had a motive to delay she was receiving $500 per month in the interim and that such delay was "inexcusable."

"We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Here, the record amply supports the findings of the motion court, and the reallocation of counsel fees to plaintiff was not an abuse of discretion.

Affirmed in part; remanded in part. We do not retain jurisdiction.

1 An earlier order, dated May 21, 2009, contemplated a plenary evidentiary hearing on custody and related issues. That order also addressed alleged arrearages owed to defendant, the court concluding, "[b]ased upon the submissions presented, the [c]ourt cannot find that the Plaintiff is in arrears at this time, other than the $250.00 that both parties agree that Plaintiff did not pay in December of 2008."

2 The forty-fifth day following March 18 was May 2, a Sunday. Thus, defendant should have filed her notice of appeal on Monday, May 3, 2010, but instead waited until Friday, May 7, 2010, to accomplish the filing. Even in the face of plaintiff's challenge to her lack of timeliness, defendant has still not filed a motion for permission to treat her appeal as timely.

3 Without a clear explanation of its rationale, the Family Part ordered that "summer work-related daycare shall be paid at the percentage of forty-one percent (41%) by the Plaintiff and fifty-nine percent (59%) by the Defendant." Since these percentages align with the parties' inverted respective average net income percentages, defendant surmises that the motion court simply transposed the percentages. Although we cannot tell for sure, defendant's argument on this issue appears persuasive, and may be borne out when the Family Part reconsiders the issue as part of the remand. However, we take no dispositive stance on the ultimate question and leave it to the fact-finding processes of the Family Part to determine who will bear the forty-one percent and who will bear the balance.