VELUSWAMY MATHIARASAN v. POORNIMA VEERASWAMY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0529-11T3

VELUSWAMY MATHIARASAN,

Plaintiff-Appellant,

v.

POORNIMA VEERASWAMY,

Defendant-Respondent.

____________________________

March 6, 2013

Submitted October 24, 2012 - Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-885-05C.

Veluswamy Mathiarasan, appellant pro se.

Poornima Veeraswamy, respondent pro se.

PER CURIAM

This matter is before the court following our remand for the trial court to hear oral argument on the parties cross-motions and determine, with a statement of reasons, whether imputation of income to either party was appropriate and whether recalculation of child support was warranted. Following a remand hearing, the trial judge issued an order on October 4, 2011, accompanied by a written statement of reasons, that income should not be imputed to either party and that no adjustment of child support was necessary. Plaintiff Veluswamy Mathiarasan appeals from that portion of the order denying his motion to further modify child support by adjusting controlled costs. Because we find that the court properly exercised its discretion in determining that the parties' circumstances did not justify further modification, we affirm.

The history of the parties' marriage and divorce is set forth in our prior opinion. Mathiarasan v. Veeraswamy,

No. A-0843-10 (App. Div. June 24, 2011). After the entry of a post-judgment order equally dividing the parenting time each spent with their pre-school-age son, plaintiff filed a motion seeking a reduction in his child support commensurate with his additional parenting time. He also sought adjustment to the Child Support Guidelines for controlled costs, pursuant to Benisch v. Benisch, 347 N.J. Super. 393 (App. Div. 2002), and imputation of income to defendant Poornima Veeraswamy. Defendant cross-moved for income to be imputed to plaintiff. Without hearing oral argument, the trial judge denied the imputation of income to both parties, and modified child support to reflect the new custody arrangement, but did not back out controlled costs as plaintiff had requested. Id. at 397-401; Wunsch-Deffler v. Deffler, 406 N.J. Super. 505, 509 (Ch. Div. 2009). Because that order did not state the reasons for the decision, we remanded to the trial judge to hear oral argument and decide the issues, with an explanation of his reasons.

On remand, the trial judge conducted a hearing in which both parties appeared pro se. Although both presented argument, neither brought forth any new evidence not already in the record. Thereafter the judge issued an order denying imputation of income to both parties and determining that recalculation of child support was not required. While acknowledging that both parties share equal parenting time which might justify an adjustment of controlled costs pursuant to Benisch and Wunsch-Deffler, the court found "ample reasons" to continue defendant as the parent of primary residence. Specifically, the judge determined that the acrimonious relationship between the parties made communication between them relating to provision of their son's clothes, personal care, and entertainment, all items included in controlled costs, untenable. Having previously noted the disparity in the parties' incomes, the judge also highlighted defendant's having borne the brunt of increased tuition costs for their son. After considering all of these factors, the court determined that defendant should remain the parent of primary residence.

Our 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)). We give additional deference to a Family judge s factfinding "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413. We will reverse only when our review unearths findings that "are so wholly unsupportable 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)). When assessing whether a child support obligation should be modified, appellate courts afford the trial judge "the utmost leeway and flexibility in determining what is just and equitable." Lepis v. Lepis, 83 N.J. 139, 147 (1980) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). When a party seeks modification of child support, "the guiding principle is the 'best interests of the children.'" Id. at 157.

A parent of primary residence (PPR) is the parent, in a shared parenting arrangement, with whom a child resides for more than fifty percent of the time or, if a child spends equal time with each parent, the parent with whom the child resides while attending school. See Child Support Guidelines, Pressler and Verneiro, Current N.J. Court Rules, Appendix IX-A to R. 5:6A

at 2554, 14(b)(1) (2013). The parent who is not the PPR

is called the parent of alternate residence (PAR). Id.

at 14(b)(2). The Guidelines presume that one parent will be designated the PPR and the other will be designated the PAR. Here, defendant had been previously designated the PPR before the parties began spending equal time with their son.

The Child Support Guidelines incorporate assumptions about which parent bears categories of expenses for the child. Even where custody is shared, the Guidelines assume that only the PPR incurs "controlled expenses," such as clothing and personal care, which account for approximately one fourth of the basic child support amount. Benisch, supra, 347 N.J. Super. at 397. The Guidelines assume that both parents incur the remaining "fixed" and "variable" expenses for the child. Ibid.

In Benisch, we noted that the assumption that one parent pays for all controlled expenses may not be valid when the children spend an equal or near equal amount of time with both parents, and that the likely effect of near-equal sharing of parenting time may require an adjustment of "controlled expenses" resulting in a reduction of child support to the PPR. Id. at 397-401. Defendant relies on Benisch in support of his contention that the trial judge erred in not adjusting controlled costs in light of the parties equal parenting time.

We did not in Benisch, however, require that the Family Part adjust controlled costs in every instance of equal shared parenting time. Id. at 399 (acknowledging "there may be bona fide reasons" for designating one parent as PPR in equal parenting time arrangements). The Guidelines make clear that child support does not depend on the time each parent spends with the child but rather upon the resources of each parent that are available for the benefit of the child. The Guidelines presume that the parent with the greater income will contribute more to the support of the child, see Child Support Guidelines,

supra, Appendix IX-A to R. 5:6A at 2541-42, 1 and 4, and this remains true regardless of the specific living arrangements for the child. Here, as we noted in our prior opinion, plaintiff's annual W-2 income was $106,000 and defendant's approximately $45,000. Mathiarasan v. Veeraswamy, supra, slip op. at 3. Further, the Guidelines suggest that duplication of controlled expenses by the PAR is not always appropriate or necessary, and that a PAR routinely incurring controlled expenses for the child, either in addition to or in substitution for an expense assumed to be unilaterally provided by the PPR, may rebut the controlled expense assumption on appropriate proofs. Child Support Guidelines, supra, Appendix IX-A to R. 5:6A at 2557-58, 14(i).

In accordance with our views in Benisch, the Family Part in this case acted within its discretionary authority to decline any adjustment in the controlled expenses in light of the amply demonstrated acrimonious relationship between the parties and increased tuition costs incurred by defendant. Plaintiff made no attempt to show that he was incurring necessary and non-duplicative controlled expenses on behalf of the parties' son at the hearing afforded him on remand. Because we are satisfied that the Family Part considered the circumstances

of the parties' custody arrangement in determining that no modification to the support award was warranted, we have no occasion to tamper with that exercise of principled discretion.

Affirmed.