ANNMARIE KENNEDY VS. TROY DAVID KENNEDY (FM-18-0559-06, WARREN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1145-17T1
ANNMARIE KENNEDY,
Plaintiff-Respondent,
v.
TROY DAVID KENNEDY,
Defendant-Appellant.
____________________________
Submitted October 31, 2018 – Decided November 21, 2018
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FM-18-0559-06.
Benjamin G. Schneider, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant Troy David Kennedy appeals from an October 6, 2017 order
denying his motion for reconsideration of a May 12, 2017 order requiring him
to pay $197 per week in child support to plaintiff Annmarie Kennedy. We affirm
in part, and reverse and remand in part for a recalculation of child support
consistent with this opinion.
The following facts are taken from the motion record. The parties were
married in November 2000, and divorced in July 2006, pursuant to a judgment
which incorporated a property settlement agreement (PSA) dated in March 2006.
One child was born of the marriage, who was nearly fifteen years of age at the
time of the motion.
In pertinent part, the PSA stated:
The parties agree that they shall share [j]oint [l]egal and
[p]hysical [c]ustody of their minor son . . . . Parenting
time shall be shared equally by the parties, who shall
alternate their parenting time with their minor son, as
agreed, conditioned upon each party having equal
parenting time with their son.
With respect to child support, the PSA provided, in part:
Based upon the parties' agreement to share [j]oint
[l]egal and [p]hysical [c]ustody of their minor son, with
fifty-fifty parenting time, as well as the circumstances
that the parties' relative incomes, as further set forth in
this agreement, would be comparable, if the [defendant]
is able to qualify to obtain a loan, including closing all
closing costs sufficient to refinance the existing
mortgage and equity loans, as well as to buy-out the
[plaintiff's] interest in the marital residence as further
set forth in this agreement, and if the [defendant] is
solely entitled to the rental income from the tenants
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currently occupying one-half of the marital residence,
then neither party shall be obligated to pay child
support to the other for the benefit of the parties[']
minor son, at this time. However, in the event that the
marital residence is sold to a third party, then the
[defendant] shall be entitled to the payment of child
support, since he will lose the benefit of the rental
income from the marital residence. Neither party shall
waive the right to make an application to the [c]ourt for
the payment of child support by the other party, in the
event of a significant change of circumstances. Upon
notice to the other party of a claim of a significant
change in circumstances, then both parties shall
cooperate and exchange true copies of all income tax
returns, W-2s, 1099s, pay stubs, and/or other evidence
of income and/or compensation, upon the request of
either party.
Post-judgment, plaintiff filed a motion for an order permitting her to enroll
the parties' son in the Hillsborough School District where she resided, which the
court granted on July 10, 2014. In April 2017, plaintiff filed a motion seeking
an adjustment of the parenting schedule, sole residential custody, and child
support.
At oral argument of plaintiff's motion, defendant stated he did not object
to granting plaintiff residential custody. Therefore, on May 12, 2017, the motion
judge entered an order memorializing the transfer of custody to plaintiff and
granting her motion for child support pursuant to the Child Support Guidelines.
The judge directed defendant to submit an updated Case Information Statement
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(CIS) and supporting documents within twenty days of receipt of the order, in
order to calculate child support.
On June 1, 2017, defendant filed his CIS. The CIS reported year-to-date
earned income of $5760, and unemployment income of $8064 for the time
period between January 1 and May 19, 2017. In "Part F – Statement of Special
Problems" of the CIS defendant certified as follows:
Defendant's annual gross earnings are impacted by
three circumstances: (1) loss of rental income due to the
relinquishment of his Somerville property as
contemplated by the [P]SA; (2) the financial support of
other dependents from his current marriage; and (3) the
fact that he is a seasonal employee (supported by his
three most recent paystubs as of May 19, 2017 skipping
from late January/early February 2017 to May 2017).
Defendant also noted "[a]nnualizing his paystubs would substantially overstate
his gross annual earnings." The three paystubs attached to his CIS, which were
dated January 27, 2017, February 3, 2017, and May 19, 2017, indicated gross
income of $960 per week.
Defendant's CIS also attached a joint income tax return for 2016, which
listed two other children as dependents born of his second marriage. Defendant
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also provided his 2015 and 2016 W-2 forms, which denote income of $26,880
and $32,640, respectively.1
Plaintiff had provided a CIS dated April 1, 2017, when she filed her
motion. According to the CIS, her year-to-date gross earnings were $3150 for
the period of January 1, 2017 to March 30, 2017. Plaintiff's CIS also reported
year-to-date gross unearned income of $6921, from monthly social security
disability payments. Plaintiff's CIS also reported the parties' son had received
social security derivative disability payments totaling $1218 per month.
On August 21, 2017, the motion judge filed a Uniform Summary Support
Order (USSO) ordering defendant to pay plaintiff $197 per week in child
support, effective April 4, 2017. The USSO and the attached guidelines
indicated a gross weekly income of $523 for plaintiff and $1087 for defendant.
"Line 5" of the custodial parent's column of the guidelines worksheet entitled
"Government (Non-Means Tested) Benefits for the Child" reflected $0. The
worksheet also did not calculate an other dependent deduction (ODD) to take
into account the children from defendant's remarriage.
Defendant filed a timely motion for reconsideration of the USSO. In his
certification he argued "the information contained on the . . . [g]uidelines . . .
1
The copies of defendant's W-2 forms are somewhat illegible.
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containing all of the incomes and obligations of both parties includes
inconsistencies and does not reflect what is indicated for the same in the [CISs]
that were submitted to the courts prior to the [USSO]." He argued the guidelines
should be re-calculated "in order to ensure [he] [could] properly support all three
of [his] children based on [his] actual income, as well as . . . [p]laintiff's actual
income, including, . . . her part-time job income, Social Security Disability
benefits, and Social Security Auxiliary benefits for . . . [the parties' son]."
Plaintiff opposed defendant's motion for reconsideration and argued his
assertions were not supported by the documentation he provided.
On October 6, 2017, the motion judge entered an order denying the motion
for reconsideration. The judge found defendant failed to meet his burden for
reconsideration to prove "with specificity[,] facts or law the [c]ourt . . .
overlooked or wrongly relied upon." According to the judge, defendant "simply
state[d] the [c]ourt erred in its calculations of child support, because the [c]ourt
used the wrong incomes and obligations provided in the parties' CISs[,]" but
failed to sufficiently explain which obligations or amounts were omitted, and
why those obligations should have been included. The judge also found
defendant failed to prove why the court's calculation of defendant's gross weekly
income was incorrect, and failed to provide objective evidence of his wife's
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income and expenses for his children in order to calculate the ODD. This appeal
followed.
"Motions for reconsideration are granted only under very narrow
circumstances[.]" Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462
(App. Div. 2002). A party seeking reconsideration shall state "the matters or
controlling decisions which [he or she] believes the court has overlooked or as
to which it has erred[.]" R. 4:49-2. As such, reconsideration should be used
only for those cases where "either (1) the Court has expressed its decision based
upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court
either did not consider, or failed to appreciate the significance of probative,
competent evidence." Fusco, 349 N.J. Super. at 462 (quoting D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)); see R. 4:49-2. We review a trial
court's denial of reconsideration for abuse of discretion. Cummings v. Bahr,
295 N.J. Super. 374, 389 (App. Div. 1996).
On appeal, defendant argues the motion judge miscalculated child support
because she did not include the social security benefit received by the parties'
son. Defendant also argues the judge miscalculated his income by assuming he
earned $960 every week, when in reality, he has had sporadic employment and
relies upon unemployment compensation when there is no work. Defendant also
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argues the judge did not consider the loss of his rental income when the marital
residence was sold. Defendant argues the judge failed to calculate the guidelines
with an ODD. He asserts the proper support figure should have been $98 per
week. We address these arguments in turn.
Defendant urges us to reverse the USSO because the guidelines attached
to it failed to include social security disability derivative benefits paid to the
parties' son. Defendant notes he derived the figure from plaintiff's CIS and
provided it to the judge in his proposed guidelines worksheet attached to his
motion for reconsideration.
The guidelines state:
Derivative benefits have eligibility standards that are
based on the contribution (e.g., . . . disability . . .) of
one of the parties, without regard to family income.
This includes but is not limited to Social Security
Disability[.] . . . Such payments are either deducted
from a parent's government benefit or paid in addition
to the parent's benefit. These child benefits are earned
benefits that are meant to replace the lost earnings of
the parent in the event of disability or retirement. The
derivative child benefits shall be counted in the weekly
net income of the parent whose contribution is the
source of the benefits and applied as a credit to that
parent's child support obligation. If the amount of the
support obligation after deducting the benefits is zero,
then the child support obligation is satisfied and no
support award should be ordered while the child is
receiving the benefits.
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[Child Support Guidelines, Pressler & Verniero,
Current N.J. Court Rules, Appendix IX-A to R. 5:6A,
www.gannlaw.com (2018) (emphasis added)].
We agree the motion judge erred when she failed to include the social
security disability derivative benefits paid to the parties' son in her guidelines
calculation. That figure was contained in plaintiff's CIS when the initial child
support calculation was made, and also pointed out by defendant on
reconsideration. Therefore, because the motion judge overlooked this evidence,
we reverse and remand this aspect of the decision for the judge to make the
correct computation.
Defendant argues the motion judge should not have utilized the three
paystubs he attached to his CIS to calculate his income, because as a stone
mason, his income is sporadic. Additionally, he claims the judge erred in
considering rental income generated by the marital residence in her calculation
because the property has been relinquished.
The guidelines provide instruction as to calculating gross income where
the source is sporadic or fluctuates. Appendix IX-B states:
If income from any source is sporadic or fluctuates
from year-to-year . . ., the amount of sporadic income
to be included as gross income shall be determined by
averaging the amount of income over the previous
[thirty-six] months or from the first occurrence of its
receipt whichever time is less.
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[Child Support Guidelines, Pressler & Verniero,
Current N.J. Court Rules, Appendix IX-B to R. 5:6A,
www.gannlaw.com (2018) (emphasis added).]
"[T]he court may exclude sporadic income if the party can prove that it will not
be available in an equivalent amount in the future." Ibid.
Here, defendant's proofs fell short of the disclosures required by the
guidelines. At the outset, it is not evident whether defendant provided his 2015
and 2016 W-2 forms to the judge because his certification in support of the
reconsideration motion does not reference the documents. Assuming defendant
provided the W-2 forms along with the three 2017 paystubs, these documents
did not address his income dating back to May 2014 to permit the judge to assess
his income for the thirty-six month period required under the guidelines.
Furthermore, beyond a bare assertion that his income was sporadic, defendant's
certification shed no light on whether the sporadic income would be unavailable
in the future. Thus, the motion judge did not abuse her discretion and we decline
to disturb the order on these grounds.
However, we agree it was an abuse of discretion for the motion judge to
include rental income defendant no longer receives in the guidelines calculation.
Although defendant's 2016 tax return included a total annual rental income of
$6599, or $127 per week, he certified the income had disappeared as a result of
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the sale of the former marital residence. Plaintiff's reply certification
acknowledged the sale of the residence as well. Indeed, she certified:
While I am sensitive to the fact that [d]efendant was
required to relinquish title of the marital home, I do not
believe it is germane to this matter. While . . .
[d]efendant intimates that his income has been reduced
as a result of losing the rental aspect, he did recently
receive a large lawsuit [settlement] that would seem
sufficient to present as a good-faith payment to retain
the home and provide a stable environment in the event
that our son expressed interest in overnight parenting
time.
The judge also acknowledged defendant's claims relating to the sale of the
residence in the May 12, 2017 order:
Defendant notes that the PSA was crafted to protect his
right to child support in the event the marital home was
sold and he no longer collected the rental income. . . .
Defendant proposes that the sale of the marital home
and the change in residential custody, to which he
consents, present competing changes in circumstances
that should be considered.
Additionally, as we noted, when defendant filed his CIS pursuant to the May
order, he certified to the loss of the rental income in Part F of the document.
We are convinced the motion judge included the rental income in the
guidelines calculation, despite the evidence in the record demonstrating the loss
of the rental income. As we noted, defendant's paystubs showed a gross weekly
income of $960 per week. Defendant's 2016 joint tax return claims $6559 rental
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income, which equates to $127 per week. The gross weekly income, including
the rental income totals to $1087, which the motion judge input as defendant's
gross income into the guidelines attached to the USSO. Therefore, on remand,
the motion judge shall recalculate the guidelines and exclude the rental income
from the child support calculation, or make further findings as to why the $1087
does not include rental income.
Finally, we affirm the motion judge's decision not to calculate the
guidelines utilizing an ODD. The guidelines explain the ODD as follows:
These guidelines include a mechanism to apportion a
parent's income to all of his or her legal dependents
regardless of the timing of their birth or family
association (i.e., if a divorced parent remarries and has
children, that parent's income should be shared by all
children born to that parent).
[Child Support Guidelines, Pressler & Verniero,
Current N.J. Court Rules, Appendix IX-A to R. 5:6A,
www.gannlaw.com (2018).]
Additionally, "where there is not an order requiring either parent to pay support
for the other dependent this adjustment shall be used only if the income, if any,
of the other parent of the secondary family is provided to or ascertainable by the
court[.]" Ibid. (emphasis added). Importantly, the guidelines specify "this
adjustment may be applied to other dependents born before or after the child for
whom support is being determined[.]" Ibid. (emphasis added). As such, whether
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an ODD is calculated is subject to the court's discretion, and to financial
disclosures made by the parent seeking the ODD and his or her spouse.
Defendant argues the motion judge erred because he disclosed his wife's
income on a proposed sole parenting worksheet he prepared in support of the
reconsideration motion. We disagree. Defendant's disclosure was not of the
sort required under the guidelines, and instead was a bare assertion unsupported
by objective evidence of his wife's income. As the motion judge noted,
defendant
provide[d] an amount for the [ODD], but [did] not
provide evidence of how the amount was calculated.
Defendant [did] not [submit] to the [c]ourt financials,
besides the joint 2016 tax returns, to corroborate the
ODD calculation such as his current spouse's pay stubs,
children's healthcare expenses, or child care expenses.
The only indicia of income for defendant's wife was the $400 gross weekly
income included on the proposed worksheet, and the $48,017 joint income on
the 2016 tax returns. The $400 per week annualizes to $20,800, and defendant's
2016 W-2 indicated he earned $32,640, for a total of $53,440. This sum exceeds
the income reported on the 2016 tax return. According to the return, the income
for defendant's wife should be $15,377 ($48,017 - $32,640 = $15,377).
However, this sum equates to $296 per week, which clearly does not match the
$400 defendant assigned to his wife on his proposed guidelines. For these
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reasons, the motion judge did not abuse her discretion to deny defendant the
benefit of an ODD.
Affirmed in part, and reversed and remanded in part for further
proceedings consistent with this opinion. We do not retain jurisdiction.
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