J.A.M. VS. S.J.G. (FM-10-0286-19, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0262-20
J.A.M.,1
Plaintiff-Appellant,
v.
S.J.G.,
Defendant-Respondent.
_________________________
Argued September 29, 2021 – Decided October 25, 2021
Before Judges Whipple, Geiger, and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon County,
Docket No. FM-10-0286-19.
Jared A. Geist argued the cause for appellant.
Daniel B. Tune argued the cause for respondent
(Martin & Tune, LLC, attorneys; Daniel B. Tune, of
counsel and on the brief).
PER CURIAM
1
We use initials to protect the victim of domestic violence. See R. 1:38-
3(d)(10).
Plaintiff J.A.M. appeals from an August 13, 2020 Family Part post-
dissolution order which granted, in part, and denied, in part, cross-motions to
reconsider child support, custody and parenting time, distribution of assets,
and various other calculations from the June 29, 2020 Dual Judgment of
Divorce and Final Judgment After Trial (JOD) between plaintiff and defendant
S.J.G. Neither party appealed the JOD.
Plaintiff and defendant were married on April 25, 2015, and share a son.
In December 2018, plaintiff secured a final restraining order (FRO) against
defendant after an incident of domestic violence, leading to the filing of cross -
complaints for divorce. On September 26, 2019, the court issued a pendente
lite order that defendant
provide 50% of her 401k to [p]laintiff's attorney
immediately . . . . [Defendant] shall immediately
contact the appropriate entity to liquidate and divide
the net amount with [plaintiff]. The parties shall use
these monies first to pay the experts (or reimburse the
party who is documented to have paid the experts) and
then to pay counsel.
On November 18, 2019, the court issued another order after defendant
did not liquidate her 401(k) account and did not "provide [p]laintiff with 50%
of her 401(k) after the experts are paid . . . ." The motion court instead ordered
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defendant to divide the funds "as soon as it becomes practicable for the
[qualified domestic relations order (QDRO)] to be issued."
The case was tried before a different judge, who entered the JOD on
June 29, 2020, addressing on the record the issues of custody, parenting time,
alimony, child support, and equitable distribution of assets and debts. It also
ordered that defendant's 401(k) would remain defendant's sole property, not
subject to reallocation.
On July 13, 2020, defendant filed a motion for reconsideration of the
JOD, asking, in pertinent part, that the court reconsider calculation of the child
support guidelines to include alimony paid to plaintiff and for modification of
parenting time. Defendant contended the court erred in using an incorrect
parenting guideline worksheet, and she presented a modified sole parenting
guidelines worksheet that proposed increasing plaintiff's child support
obligation to defendant from $10 to $156 per week. Defendant also asked the
court to alter the parenting plan to modify the hours of the Wednesday dinner
visit. Plaintiff filed an untimely cross-motion asking to be designated the
parent of primary residence (PPR), for modification of parenting time and
child support, adjustment of her imputed income from $60,000 to $25,000, and
disbursement of $24,926 from defendant's 401(k).
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On August 13, 2020, the court issued an order modifying and
recalculating child support to account for plaintiff's two other dependents.
This recalculation of overnights, alimony, and change in the child support
guidelines worksheet—from "shared" to "sole" parenting—resulted in an
increase in child support payable to defendant from $10 to $156 per week.
The court denied both parties' requests for modification of parenting
time and denied plaintiff's request that she receive $24,926 out of defendant's
401(k). Plaintiff's request for reduction of her imputed income from $60,000
to $25,000 was also denied. Plaintiff appealed.
Rule 4:49-2 addresses a party's motion to alter or amend a judgment or
order. It states that:
[A] motion for rehearing or reconsideration seeking to
alter or amend a judgment or order shall be served not
later than [twenty] days after service of the judgment
or order upon all parties by the party obtaining it. The
motion shall state with specificity the basis on which
it is made, including a statement of the matters or
controlling decisions which counsel believes the court
has overlooked or as to which it has erred, and shall
have annexed thereto a copy of the judgment or order
sought to be reconsidered and a copy of the court's
corresponding written opinion, if any.
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[R. 4:49-2.]2
A decision to reconsider an order must be exercised in the interests of
justice. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (citing
Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257, 263 (App. Div.
1987)). We will not reverse a trial court's decision on imputed income and
alimony unless the trial court "abused its discretion, failed to consider
controlling legal principles or made findings inconsistent with or unsupported
by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 479 (App.
Div. 2004).
We overturn a trial court's denial of a motion for reconsideration only in
the event the court abused its discretion. Marinelli v. Mitts & Merrill, 303 N.J.
Super. 61, 77 (App. Div. 1997). In determining whether abuse of discretion
has occurred, we note that "[a] litigant should not seek reconsideration merely
because of dissatisfaction with a decision of the [c]ourt." D'Atria, 242 N.J.
Super. at 401.
2
The judge in his Statement of Reasons explained that he would not consider
requests for reconsideration in plaintiff's cross-motion that did not "relate back
to defendant's motion" because plaintiff had filed her cross-motion out of time.
In doing so, the court nevertheless amplified the original order on its merits.
We accordingly evaluate the trial judge's decisions to the same extent, as they
relate to defendant's timely filed motion for reconsideration. See R. 1:6-3(b).
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Plaintiff argues on appeal that the court erred because it did not
reconsider reallocation of parenting time between the parties and that the trial
court applied an incorrect legal analysis and did not account for the child's best
interests. Plaintiff also argues that under N.J.S.A. 9:2-4(c), the trial court did
not properly consider the FRO against defendant. Without citing to case law or
a specific statute, plaintiff asserts that "[i]n the domestic violence statute , there
is a presumption that the abused should get custody." This argument is
unavailing.
The record establishes that the court properly set forth its findings under
all fourteen N.J.S.A. 9:2-4(c) factors in the underlying oral record and in his
June 29, 2020 written decision accompanying the JOD. The court's August 13,
2020 Order Reconsidering Child Support addressed the parties' parenting plan,
granted defendant's request to recalculate child support, and denied both
parties' various other requests.
Plaintiff did not appeal the JOD; nevertheless, she argues that the trial
court abused its discretion in transferring primary physical custody of the child
to defendant during the school year. Here, the court placed findings on the
record and in a written statement, which fully explained its reasoning
regarding custody. The JOD ordered joint custody with defendant as the PPR
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and plaintiff as parent of alternate residence. Plaintiff asserts no reason why
the trial court's denial of her request for reconsideration constitutes an abuse of
discretion other than her dissatisfaction with the original determination. The
court denied both parties' requests to reconsider the parenting time during the
school year, stating that "[t]he parties are free to expand and modify parenting
time arrangements in the best interests of the child." This reflects the degree
of flexibility and practicality the court encouraged in the JOD regarding how
joint parenting would be effectuated within the best interests of the child
framework.
Next, we reject the assertion that the trial court did not account for the
parties' history of domestic violence. The Prevention of Domestic Violence
Act (PDVA) mandates that at an FRO hearing, the Family Part must consider
the victim's safety "in determining custody and parenting time . . . ." N.J.S.A.
2C:25-29(a)(5). In addition, "the court shall presume that the best interests of
the child are served by an award of custody to the non-abusive parent."
N.J.S.A. 2C:25-29(b)(11).
Defendant argues that this presumption applies only in actions involving
the PDVA—not a resulting divorce trial itself. We agree. "The DV Act
applies the presumption only in 'proceedings in which complaints for
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restraining orders have been filed.'" R.K. v. F.K., 437 N.J. Super. 58, 64 (App.
Div. 2014) (quoting N.J.S.A. 2C:25-29(b)). This court further noted in R.K.
that the presumption has been applied "only in appeals from initial FROs." Id.
at 64-65. Therefore, the presumption for custody with plaintiff does not arise
in this divorce action.
We stated in Grover v. Terlaje, 379 N.J. Super. 400 (2005), that this
"presumption weakens as time passes without any conduct which can be said
to jeopardize the 'non-abusive spouse' or the child." Id. at 407. This court
decided in Grover that the provisions of a final JOD, including specific
custody arrangements, are left "to the sound discretion of the trial court." Id.
at 407-08 (quoting Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div.
2001)).
Here, while the full details of the underlying FRO trial are not included
in the record, the domestic violence history between the parties was thoroughly
discussed in the court's June 29, 2020 oral decision at the conclusion of trial.
The trial court made extensive factual findings regarding the parties' history of
domestic violence, and it did not abuse its discretion or fail to take this into
account in its custody decision. We discern no reason to revisit the court's
determination on custody of the child.
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We also reject plaintiff's argument here that "[e]quality in treatment for
the [one parent] should not be obtained by requiring the [other parent] to pay
an inappropriately high level of support for [the] child[]." Harte v. Hand, 433
N.J. Super. 457, 462 (App. Div. 2013). The court must apply the child support
guidelines when it calculates or modifies child support. Ibid. "The 'guidelines
may be modified or disregarded by the court only where a good cause is
shown.'" Ibid. (quoting R. 5:6A). Although the JOD is not under review in
this appeal, we discuss it to explain the actions taken by the court in granting
in part and denying in part the prayers for relief in the reconsideration motion.
When the court calculates the amount of child support that must be paid
by a supporting parent, N.J.S.A. 2A:34-23(a) requires the trial judge to
consider these factors:
(1) Needs of the child;
(2) Standard of living and economic circumstances
of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including
educational background, training, employment skills,
work experience, custodial responsibility for children
including the cost of providing child care and the
length of time and cost of each parent to obtain
training or experience for appropriate employment;
(5) Need and capacity of the child for education,
including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
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(8) Responsibility of the parents for the court-
ordered support of others;
(9) Reasonable debts and liabilities of each child
and parent; and
(10) Any other factors the court may deem relevant.
[N.J.S.A. 2A:34-23(a).]
In awarding child support, "[i]mputation of income is left to the sound
discretion of the trial judge based on the evidence presented." Sternesky v.
Salcie-Sternesky, 396 N.J. Super. 290, 307-08 (App. Div. 2007) (citing Tash v.
Tash, 353 N.J. Super 94, 99-100 (App. Div. 2002)).
"The trial court has substantial discretion in making a child support
award. If consistent with the law, such an award will not be disturbed unless it
is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other
evidence, or the result of whim or caprice." Jacoby v. Jacoby, 427 N.J. Super.
109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-
16 (App. Div. 2001)). "'Of course, the exercise of this discretion is not
limitless[,]' and remains guided by the law and principles of equity." Ibid.(quoting Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004)).
"An abuse of discretion 'arises when a decision is "made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis."'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171
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N.J. 561, 571 (2002)) (quoting Achacoso-Sanchez v. Immigration &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "[W]e note we are
not bound by '[a] trial court's interpretation of the law' and do not defer to le gal
consequences drawn from established facts." Id. at 116-17 (quoting Manalapan
Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995))
(alteration in original).
In reaching his final decision after trial, the trial judge specifically
considered several of the factors in N.J.S.A. 2A:34-23(a). The judge reviewed
the parties' debt and both parties' income; in addition, he took these factors
into account when calculating alimony. He also considered plaintiff's own
testimony in the divorce trial as to how much she would be able to earn after
her newly acquired civil service qualification. The motion record does not
demonstrate that the trial court's conclusion plaintiff would be able to earn
$60,000 was based on a failure to consider controlling legal principles. The
court similarly did not rest upon findings inconsistent with or unsupported by
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competent evidence. Thus, we do not consider it an abuse of discretion for the
court to deny plaintiff's request to lower her imputed income to $25,000. 3
In the JOD, the court had calculated plaintiff's imputed income as
$60,000, and the court had ordered plaintiff to pay defendant $10 per week in
child support. The shared-parenting Child Support Guidelines Worksheet was
attached to that order; the $10 calculation was based on plaintiff having 108
overnights, and therefore 29.6% of overnights per week.
Upon reconsideration, the trial court granted plaintiff's request to modify
the child support calculation to include her two other dependent children. The
judge also granted defendant's request to reconsider child support to include
alimony payments to plaintiff. The court also reviewed its calculation of
overnights and found that plaintiff had 103 overnights, not 108. The judge
reasoned that he mistakenly used the shared-parenting worksheet rather than
the 'sole' worksheet during the initial calculation of child support.
The sole-parenting worksheet "shall" be used when there is "shared
parenting (PAR Time) below the substantial equivalent of two or more
3
Plaintiff asserts, with no supporting evidence, that "it must be noted that
[she] did not testify that she could get work in this pay range—she even said
she was not sure." Again, the record before this panel only includes the trial
judge's decision, which references plaintiff's testimony that she would be able
to earn $60,000.
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overnights per week (28% of overnights) . . . ." Pressler & Verniero, Use of
the Child Support Guidelines, Appendix IX-B, at 1144 (2021). The "shared"
worksheet "shall be used if the Parent of Alternate Residence has the child for
the substantial equivalent of two or more overnights per week, excluding
extended PAR Time (e.g., vacations) and has shown that separate living
accommodations for the child are provided in the alternate household . . . ."
Id. at 1144-45.4
Plaintiff argues the trial court erred using the sole-parenting worksheet
because of "the 2/3 and 1/3 parenting time arrangement ordered." Plaintiff has
been designated the parent of alternate residence and was granted 103
overnights in 2021. This amounts to plaintiff having 28.2% of 365 overnights
total in 2021.
The trial judge stated in his reconsideration order that he "mistakenly
selected the 'shared' worksheet option, which is generally used for 50/50 split
parenting situations, rather than the 'sole' worksheet option during the initial
calculation of child support."
4
The sole-parenting instructions define the "substantial equivalent" of two or
more overnights per week as 28%, id. at 1144, whereas two out of seven
equals 28.6%. Plaintiff was granted 28.2%.
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The judge's observation of the shared-parenting worksheet is not
accurate and may call for a different result. Plaintiff has 28.2% of overnights,
which is more than 28% of overnights, cited above as the substantial
equivalent of two or more overnights per week. Two overnights per week,
however, equals 28.6% of overnights. Because the trial judge did not provide
a full explanation for why he chose to use the sole-parenting worksheet, we are
constrained to remand for the trial judge to evaluate which worksheet is most
appropriate; include a rationale for that decision; and recalculate the child
support if necessary, reviewing the testimony from trial as to what living
arrangements are provided for the child at plaintiff's residence.
Finally, we reject plaintiff's argument that the court erred in denying
distribution of defendant's 401(k) funds. The trial court "has broad discretion
. . . in allocating assets subject to equitable distribution." Clark v. Clark, 429
N.J. Super. 61, 71 (App. Div. 2012). Plaintiff contends that the trial court
overlooked a previous order for defendant to divide and disburse her 401(k)
account and argues that the court did not conduct proper analysis under
N.J.S.A. 2A:34-23 to determine appropriate equitable distribution.
The judge explained in his written support of the reconsideration order
that in the underlying divorce action, he determined that "this is not an
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equitable distribution of asset case. This is an equitable distribution of debt
case. There really isn't anything left." He further noted that the parties had
"around [$]100,000" in debts and liabilities, of which the court allocated 75%
to defendant and 25% to plaintiff.
Plaintiff argues the trial judge was required to enforce the prior judge's
pendente lite order that stated the 401(k) could not be liquidated until the
entrance of a QDRO (i.e., until final divorce judgment). However, the trial
court found that the 401(k) "was previously [de facto] distributed pendente
lite, and I'm going to award the balance of that asset to [defendant]." In the
trial court's written decision on the JOD, he stated that "[t]he marital portion of
defendant's Vanguard 401k was previously distributed pendente lite. The court
will not reallocate it. As such, this 401k account is defendant's sole property."
In its written decision on reconsideration, the court reiterated that it had
"saddled defendant with 75% of the parties' considerable debt, much of it at
the insistence of plaintiff, and it would be grossly inequitable to award any
portion of defendant's 401k to plaintiff under these circumstances."
Plaintiff has not shown an abuse of the court's discretion in its denial of
her request to reconsider the division of the 401(k).
Affirmed in part; remanded for re-evaluation of the appropriate child
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support worksheet to use consistent with this opinion. We do not retain
jurisdiction.
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