STEVEN M. LEFF v. ROSE LEFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEVEN M. LEFF,

Plaintiff-Appellant/

Cross-Respondent,

v.

ROSE LEFF,

Defendant-Respondent/

Cross-Appellant.

December 18, 2013

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2786-11.

Steven M. Leff, appellant/cross-respondent, argued the cause pro se.

Arthur Del Colliano argued the cause for respondent/cross-appellant.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from the November 30, 2012 Family Part order denying his motion to recalculate his child support obligation and related claims for relief; defendant cross-appeals from the part of the order denying her cross-motion for counsel fees. For the reasons that follow, we affirm in part and reverse and remand in part.

I.

The parties were married in 2002 and divorced in 2009. They have one daughter, who was six years old at the time plaintiff filed the motion under review. The parties' Property Settlement Agreement (PSA) required plaintiff to pay defendant $264 per week in child support which included allocation of $224 in weekly day care costs.

On October 26, 2012, plaintiff filed a motion to modify his child support, arguing the day care costs on which the original order was based had declined substantially when their daughter entered first grade. He further sought to compel defendant "to provide financial discovery, including, but not limited to, a complete Case Information Statement[.]" Plaintiff also pursued enforcement of paragraph 4.2A of the PSA, which provided "Mr. Leff shall be entitled to receive a monthly statement from the daycare provider[,]" and to receive a credit for any over-payment.

Defendant opposed plaintiff's motion and filed a cross-motion seeking various items of relief, including an award of counsel fees and costs.1 In her supporting certification, defendant claimed that plaintiff failed to present a substantial change in circumstances in light of the fact his annual income had increased by $10,000 since they signed their PSA. While she acknowledged that their daughter was "now in the first grade . . . [and was] no longer in full day care," she claimed "the cost difference . . . is not significant" and certified the costs were $7625 for 2011 and $9167 for 2012. She further stated she anticipated spending approximately $5000 for summer camp the following summer. Defendant estimated her 2012 income at "approximately $35,500 or so."

After reviewing defendant's certification, plaintiff filed a response wherein he calculated monthly day care at $415 per month. Plaintiff noted summer camp had always cost $1170, which he factored into his calculations. He also took issue with defendant's estimate of her 2012 income, citing the facts she had a side business with its own website and she owned a rental property.

On the record, the judge noted the PSA fixed day care costs at $224 per week. Despite the significant reduction in day care costs, the judge concluded plaintiff failed to establish a substantial change in circumstances and denied plaintiff's motion in its entirety. Additionally, the judge denied plaintiff's application to hold defendant responsible for plaintiff's failure to receive monthly statements. The judge further denied plaintiff any credit relating to his alleged overpayments from past statements. On defendant's cross-motion, the judge found plaintiff was in violation of litigant's rights for failing to pay previous counsel fee awards, but denied the application seeking additional counsel fees. These appeals followed.

After careful review of the record in light of the claims advanced by both parties, we conclude the motion judge erred in finding plaintiff failed to demonstrate sufficient changed circumstances to warrant review of his child support obligation. We find no merit to the remaining claims of either party.

II.

Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). A party seeking modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting an adjustment. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Where that showing is made, discovery is warranted, and if a party clearly demonstrates "the existence of a genuine issue as to a material fact[,]" a hearing is necessary. Id. at 158-59.

Once a change in circumstances has been demonstrated, the court next determines the appropriate level of support. When modifying child support orders, the court must apply the guidelines, which "may be modified or disregarded by the court only where good cause is shown." R. 5:6A. Support payments that are fixed or modified in accordance with the guidelines are presumptively correct, although their application is subject to a number of factors. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2579 (2013). Where injustice would result from their application in a specific case or where good cause exists to disregard them, the guidelines do not apply. Ibid.

As a general rule, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12, (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, we review the Family Part's interpretation of the law de novo without any special deference. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Further, in construing and enforcing a PSA, the judge must consider the parties' intent, as well as common sense and equity. See Sachau v. Sachau, 206 N.J. 1, 5-6 (2011) (stating that the basic contractual nature of matrimonial agreements require courts to "discern and implement the common intention of the parties").

III.

As a threshold matter, we are satisfied that the judge erred by unduly focusing on the fact that plaintiff's income had increased $10,000 since the execution of the PSA. After repeatedly suggesting that recalculation of child support could result in an increased support obligation for plaintiff, the court concluded that plaintiff had failed to meet his burden:

Your whole argument as I understand it is, you think the work related day care is something less than what it was when you entered into this agreement. . . . But I do [not] see it. I see it [is] really relatively the same. . . . You have not satisfied your burden of showing a significant change of circumstance.

In so concluding, the court failed to address the material difference between the child care expenses at the time of the PSA and at the time of the motion. We find no factual support for the conclusion the expenses were "relatively the same." The PSA fixed day care costs at $224 per week. The 2011 costs were $147 per week, more than one-third less. The 2012 costs were $176 per week, or about twenty-five percent less. We are satisfied this decrease in child care expenses presented a Lepis-quality changed circumstance. See Lepis, supra, 83 N.J. at 155-56.

Accordingly, we reverse the denial of plaintiff's motion to recalculate his child support obligation, and remand the matter for discovery, consideration of both parties' current financial circumstances, and computation of plaintiff's child support obligation in accordance with the child support guidelines. See Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 2579 (2013). If the parties have not resolved their differences over the cost of summer camp, the court may need to conduct a limited plenary hearing to resolve that issue, as well as any other material issues following discovery.

Plaintiff's claim that defendant improperly failed to provide him with monthly statements for work-related day care costs finds no support in the record. The PSA entitles plaintiff to receive these statements from the daycare provider; it does not obligate defendant to provide them. We find that plaintiff failed to establish his right to the alleged overpayment of past day care costs, and thus, we reject plaintiff's claim that the motion judge erred in denying his request for credit.

On her cross-appeal, defendant challenges the judge's denial of counsel fees and costs. A judge in a matrimonial action may award a party reasonable attorney's fees and costs, and in making that determination "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. See R. 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), and will be disturbed "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)). After noting plaintiff's "tenuous" financial situation and defendant's award of counsel fees twice before, the judge denied defendant's request, finding plaintiff lacked the ability to pay. We conclude the denial of counsel fees did not constitute an abuse of discretion.

Affirmed in part and reversed in part and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 On November 4, 2011, the court ordered plaintiff to pay counsel fees of $1,000 to defendant after it denied a similar motion by plaintiff to recalculate child support. Defendant's cross-motion sought a finding that plaintiff had violated her rights as a litigant by failing to pay the counsel fees awarded.