DAVID L. JOHNSON v. PATRICIA M. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAVID L. JOHNSON,

Plaintiff-Appellant,

v.

PATRICIA M. JOHNSON,

Defendant-Respondent.

______________________________

August 15, 2014

Submitted February 25, 2014 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1177-94.

Weinberger Law Group, LLC, attorneys for appellant (Jessica Ragno Sprague, on the briefs).

Patricia M. Johnson, respondent pro se.

PER CURIAM

After a remand, plaintiff David L. Johnson appeals from the Family Part's December 4, 2012, order addressing post-divorce-judgment issues pertaining to child support, college expenses, and attorney's fees. Having reviewed plaintiff's arguments in light of the factual record and applicable legal principles, we are constrained to remand for reconsideration, and additional findings of fact and conclusions of law.

I.

The parties were divorced in 1994 after five years of marriage. Plaintiff is fifty-three and defendant is fifty-nine years old. The parties' two college-aged children, Warren and Nancy,1 were born in 1992 and 1989. Plaintiff remarried and had two more children, born in 2005 and 2001. Plaintiff lives in South Carolina. He holds jobs at two retailers. Defendant is an accountant with county government. Defendant remains in New Jersey, where she has primary residential custody.

In June 2011, plaintiff sought a reduction in child support based on a reduction in income and ability to pay. He was paying $180 a week, as set in the dual final judgment of divorce (DFJD). He also sought disclosure of information related to the children's college attendance. Warren graduated from high school in June 2011. Nancy was already attending a state college. Defendant cross-moved for continued child support and plaintiff's contribution toward college costs. Both parties sought counsel fees.

In an August 5, 2011, order, the trial court reduced plaintiff's weekly child support obligation to $139. The court utilized the child support guidelines for its calculation, and attributed annual income of roughly $41,000 to plaintiff, and $51,000 to defendant. The court noted that when the parties were divorced, plaintiff was the sole breadwinner of the family. That circumstance changed; defendant became employed and out-earned plaintiff.2

However, the trial court required plaintiff to pay thirty-eight percent of college costs, net of loans and scholarships. At the time, Nancy was about to enter her junior year at the state college, and Warren was about to attend another New Jersey four-year institution. The college contribution was based directly on the parties' respective percentage shares of income, as calculated in the guidelines worksheet. The court expressly found, but gave no weight, to the fact that there was little communication between Nancy and plaintiff and the extent of communication between Warren and plaintiff was unclear. The parties' DFJD was silent on the subject of college contributions.

The court also ordered that the parties be responsible for their own attorney's fees, as neither acted in bad faith.

On appeal, we reversed the order in its entirety, and remanded for reconsideration. We held, consistent with Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012), that the court erred in utilizing the guidelines to calculate support for the children, who were then attending residential colleges. Johnson v. Johnson, No. A-0287-11 (App. Div. July 19, 2012) (Johnson I) (slip op. at 4). Instead, the court was required to apply the statutory child support factors found at N.J.S.A. 2A:34-23(a). We also ordered that plaintiff's counsel's fee request be determined by the trial court.

On remand, the court initially addressed only the child support amount in an order entered August 10, 2012. Without a statement of reasons, the court reduced child support to $100. Upon plaintiff's objection that the remand required reconsideration of all issues, the court invited supplemental submissions from the parties. Ruling on the papers, the trial court entered a revised order on December 4, 2012. The court maintained child support at $100 per week. The court also ordered plaintiff to pay forty percent of the children's college costs effective August 5, 2011.3 The court set time frames for defendant's submission of proof of subsequent college costs and plaintiff's payment of his forty-percent share. The court denied without prejudice "[a]ll other relief not otherwise addressed," but also stated that "[a]ll other aspects of previous orders not altered by this Order remain in effect." The order was silent on whether the child support reduction was retroactive to plaintiff's original 2011 filing date. The order did not expressly address counsel fees.

In a brief written decision accompanying its order, the court recited the nine statutory factors included in N.J.S.A. 2A:34-23(a). The court also recited the twelve factors for determining a claim for college contribution set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). The court then reached the following conclusions:

In light of the briefs supplied by both parties, and analysis of the N.J.S.A. 2A:34-23(a) factors, this [c]ourt feels $100.00 per week continues to be an appropriate level of child support. This figure reflects [p]laintiff's financial situation, while recognizing his continuing obligation of support. Defendant has certified that while both children spend time away at school, they require support during vacations. During breaks from school [d]efendant supplies both children with a home, clothing, food, and other necessities. The amount of time spent living at college certainly reduces custodial costs to a parent, but does not eliminate them and until the children are emancipated both parents are responsible for contribution.

With regards to college contribution, [p]laintiff stresses that an adequate Newburgh analysis is difficult due to the lack of information provided by [d]efendant. However, earlier in these proceedings, [d]efendant provided a Case Information Statement which was used in the Guidelines calculation, as well as documentation of the children's tuition and financial aid awards. Based on an analysis of the application of the Newburgh factors to the parties' situation this [c]ourt feels [p]laintiff shall be responsible for 40% of the children's college expenses. This percentage adequately reflects [p]laintiff's financial situation while recognizing his continuing obligation to support the children of the marriage in pursuit of their education.

On appeal, plaintiff asserts that the trial court failed to abide by our remand, by failing to perform an adequate analysis of his child support obligation under Jacoby, and his college contribution obligation under Newburgh. He also argues that the child support reduction should have been retroactive to his original June 2011 filing date, and the court should have addressed his counsel fee request. He asks us to exercise original jurisdiction to resolve the issues in this case. Defendant responds that the court's order should be affirmed.

The parties dispute the actual costs of college for the children, after accounting for scholarships and grants. They also dispute the extent to which the children are responsible for various living expenses, including automobile costs. Defendant also asserts, for the first time, that Warren transferred from the four-year institution to a county college and is now living at home.

II.

An appellate court generally defers to a Family Part's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it[.]" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.420, 448 (2012); see alsoCesare v. Cesare, 154 N.J.394, 413 (1998). We also "accord great deference to discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012).

However, no special deference is owed to the trial judge's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995). We may also vacate a trial court's findings regarding a motion to modify support obligations if we conclude the court failed to consider "all of the controlling legal principles[.]" Rolnick v. Rolnick, 262 N.J. Super.343, 360 (App. Div. 1993) (internal quotation marks and citation omitted); see alsoGotlib v. Gotlib, 399 N.J. Super.295, 309 (App. Div. 2008) (stating "if the court ignores applicable standards, we are compelled to reverse and remand for further proceedings").

The trial court must make findings of fact and state its conclusions of law. R. 1:7 4(a); see also N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 342-43 (2010). Factfinding "is fundamental to the fairness of the proceedings and serves as a necessary predicate to meaningful review[.]" R.M. v. Sup. Ct. of N.J., 190 N.J. 1, 12 (2007). Family judges have a "duty to make findings of fact and to state reasons in support of their conclusions." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). "Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

A motion judge must address the standards set forth in our statutes and cases to support a discretionary decision. SeeSalch v. Salch, 240 N.J. Super.441, 443 (App. Div. 1990) (stating, in case involving discretionary award of counsel fees, "[i]n the absence of reasons, we are left to conjecture as to what the judge may have had in mind"). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (internal quotation marks and citation omitted). When a trial court has failed to make required findings of fact, the appropriate remedy is ordinarily a remand. Ibid.

Applying these standards, we are constrained to remand this matter again, for the trial court to make appropriate findings. It is not sufficient simply to recite the factors governing the determination of child support, N.J.S.A. 2A:34-23(a), and college contributions, Newburgh, supra, 88 N.J. at 545. The court must make findings with regard to those factors, and explain its ultimate conclusion. The court failed to do so here.

The court's child support determination is untethered to essential findings. Even if we refer back to the trial court's August 2011 order and subsequent decision, the findings were specific to the required entries in the child support worksheet. Thus, the court made findings regarding the parties' income. But, other factors in N.J.S.A. 2A:34-23(a) were unaddressed.

Without limiting the necessity to address all the statutory factors, we note, in particular, that the court failed to consider the parties' standard of living and the parents' circumstances. N.J.S.A. 2A:34-23(a)(2). In this case, plaintiff enjoys a lower cost of living in South Carolina than does defendant in New Jersey. Plaintiff and his new family live in his father-in-law's home to conserve financial resources. Although defendant owns her own home, her mortgage payment and property taxes consume a substantial portion of her income. The court also made no findings regarding the income, assets, debts, and earning ability of the children, N.J.S.A. 2A:34-23(a)(7), (9), or the assets and debts of the parents, N.J.S.A. 2A:34-23(a)(3), (9).

It was also incumbent upon the trial court to determine an effective date for the reduction in child support. Plaintiff filed his initial application in June 2011. N.J.S.A. 2A:17-56.23, permits, but does not mandate, retroactive reduction "with respect to the period during which there is a pending application for modification." The decision whether to grant retroactive relief is vested in the court's sound discretion. Cf. Reis v. Weis, 430 N.J. Super. 552, 584 (App. Div. 2013) (referring to discretion to modify alimony retroactively). The court must "articulate reasons for granting or denying [plaintiff's] motion for retroactive application." Winterberg v. Lupo, 300 N.J. Super. 125, 135 (App. Div. 1997).

With respect to college contributions, the court apparently relied again on the parties' relative percentage shares of income. The court referred to the parties' 2011 case information statements. There is no other explanation provided for the court's allocation of forty percent of net college expenses to plaintiff, which is a slight increase over the thirty-eight percent allocation in the 2011 order. The court recited the applicable factors, but did not expressly apply them based on specific findings.

We recognize that the court gave no weight in 2011 to the poor communication between plaintiff and his son and daughter. See Newburgh factor (11). However, updated findings were warranted, since a year had passed and, apparently, additional decisions were made in the interim, including Warren's decision to transfer to a county college.

While some Newburgh factors obviously have greater relevance to a particular case than others, the court was required to address them, or state why they did not apply. In particular, and without limitation, we note that the court was obliged to consider the financial resources of the parents, and the children, as well as their earnings. See Newburgh factors (6), (8), and (9). Nancy and Warren reportedly worked during the summer, but their earnings and assets were not disclosed. Both parties are in their fifties. Although plaintiff apparently had a military pension based on prior military employment, he asserts that his need to save for retirement should be given priority over any college contribution obligation. He described his limited income, his current obligations, and his inability to live independently of his father-in-law. Defendant asserts that she has a similar need to save for retirement, her income is modest considering her housing expenses and the cost of living, but that contribution to the children's college expenses should be made, nonetheless.

The allocation of college costs is predicated, as a threshold matter, on a finding that parents are "financially capable." Newburgh, supra, 88 N.J. at 544; see also Moehring v. Maute, 268 N.J. Super. 477, 481 (Ch. Div. 1993) ("Among the Newburgh factors, the parents' ability to pay is clearly the most significant."). Particularly given the relatively modest incomes and assets of the parents, it was not sufficient for the court to allocate a percentage share of the net college costs, without determining what those net college costs would be, and the ultimate impact of the obligation on the parties and their ability to pay.

We are also mindful of the court's findings that defendant failed to provide sufficient information to enable the court to make the necessary findings under Newburgh. Although plaintiff bears the burden to establish the basis for a reduction in his child support obligation, Jacoby, supra, 427 N.J. Super. at 116, defendant, on behalf of the children, bears the burden to establish the basis for imposing the college contribution on plaintiff. Newburgh, supra, 88 N.J. at 546. As the interests of the children are ultimately at stake, the court should appropriately utilize its powers to compel the production of required information.

Lastly, the court must reconsider the matter of counsel fees. We recognize that the trial court previously denied mutual requests for fees, based on a finding that neither party acted in bad faith. However, the presence of bad faith is only one of several factors the court must consider in determining whether to award fees. Rule 5:3-5(c) requires the court to consider:

(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 reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any feespreviously 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 discovery; and (9) any other factor bearing on the fairness of an award.

Reversed and remanded. We do not retain jurisdiction.

1 We utilize pseudonyms for the children.

2 The parties' 1994 DFJD was unaccompanied by a child support guidelines worksheet. Plaintiff certified that he earned $43,000 a year at the time.

3 It is unclear whether the August 5, 2011, effective date was intended to deny reimbursement of any portion of the college expenses that defendant incurred for Nancy during the 2009-2010 and 2010-2011 academic years.