D.N. VS. T.G. (FM-07-0608-15, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4839-16T2
D.N.,
Plaintiff-Respondent,
v.
T.G.,
Defendant-Appellant.
____________________________
Submitted January 23, 2019 – Decided February 15, 2019
Before Judges Rothstadt and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-0608-15.
T.G., appellant pro se.
D.N., respondent pro se.
PER CURIAM
Defendant T.G.1 appeals from the Family Part's May 24, 2017 order that
required him to pay $52,661.47 in support arrears and sanctions and 40% of his
children's college expenses. On appeal, defendant argues that the court failed to
properly consider the Newburgh factors in establishing his obligation to pay for
his children's college expenses and incorrectly determined his ability to pay
amounts previously ordered by the court. After conducting a thorough review
of the record in light of the arguments raised on appeal, we affirm in part, reverse
in part, and remand for further proceedings based on the existing record.
I.
This appeal represents the latest chapter in this heavily litigated and
contentious matrimonial matter. We discuss the complicated procedural history
because it relates to the May 24, 2017 order, and necessarily informs our
decision.
On September 27, 2005, the court entered a Dual Judgment of Divorce
(JOD), which dissolved the twelve-year marriage between plaintiff D.N. and
defendant, and incorporated a Property Settlement Agreement (PSA). Article I
of the PSA addressed child custody, visitation, and support for the parties' two
1
We refer to the parties and their children by initials to protect their privacy
interests, and to maintain confidentiality.
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children, S.G. and H.G. Pursuant to section 1.3, the parties agreed that plaintiff
would pay the first $250 per child, per year in unreimbursed medical expenses
and defendant would pay the next $1000. Section 1.6 required defendant to pay
50% of the cost of religious education for the children, up to a total cost of $3500
per year. With regard to the children's college expenses, section 1.11 states that
"[t]he parties agree that college education shall abide the event and shall be
governed by the existing New Jersey law."
Over the next decade, the parties engaged in unrelenting post-judgment
motion practice and related litigation, primarily involving allegations of sexual
abuse by defendant, and his failure to comply with the financial obligations set
forth in the PSA. Specifically, on September 6, 2005, plaintiff filed a Title Nine
abuse and neglect complaint, pursuant to N.J.S.A. 9:6-1(e) and 9:6-8.21(c)(3),
against defendant alleging that he had sexually abused their children. The Title
Nine action, in which the Division of Youth and Family Services (Division)
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ultimately intervened,2 lasted nearly two years, during which time defendant was
precluded from seeing or communicating with S.G. and H.G. 3
On February 15, 2006, plaintiff "knowingly, willingly and voluntarily,"
stipulated that he abused or neglected S.G. by showering nude with him.
Specifically, defendant admitted to "using poor boundaries and may have placed
the minor at risk for emotional harm." The Title Nine trial commenced a few
months later. In light of defendant's stipulation, the court denied plaintiff's
request for a plenary fact-finding on the other allegations of abuse and neglect.
Instead, the court heard from eleven witnesses over the course of sixteen days
in order "to reach a dispositional determination concerning [defendant's] future
contact with S.G. and H.G."
2
Pursuant to L. 2012, c. 16, effective June 29, 2012, the name of the Division
of Youth and Family Services was changed to the Division of Child Protection
and Permanency.
3
In July 2008, defendant filed a lawsuit against plaintiff, her father and mothe r,
and three psychologists, who he alleged falsely claimed that he sexually abused
the children. After the trial court dismissed the complaint, we affirmed the
dismissal as against plaintiff, her parents, and one psychologist, but reversed
and remanded for further proceedings with respect to the remaining two
psychologists. T.G. v. Kaplan, No. A-5523-08 (App. Div. March 23, 2011).
Because the parties have not included a copy of the transcript from the Title
Nine matter in the record, we base our recitation of the facts from our
unpublished opinion.
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In its oral decision, the court concluded that defendant "had inflicted
emotional harm on the children by exposing them to his naked body." The court
determined that H.G. suffered from "posttraumatic stress disorder" and that
"both children have suffered and are continuing to suffer from emotional distress
caused by the[ir] father exposing himself to them." The court stated that it
accepted the findings "that these children were sexually abused by their father
. . . ."
Despite the court's findings that defendant's conduct caused harm to the
children, the court agreed with the Division's and Law Guardian's
recommendation that the children should undergo therapy with a goal toward
resuming parenting time with him. By mid-2007, defendant was allowed to see
his children again, through supervised visits, and according to defendant his
"relationship with [his] children had seemingly been restored" by late-2008.
Thereafter, plaintiff moved to Long Island, New York, and a new parenting
agreement was signed in 2009, granting plaintiff full residential custody and
allowing defendant unsupervised parenting time.
In May 2012, defendant and S.G., then thirteen-years old, got into a
physical altercation. According to defendant, after he attempted to discipline
his son for swearing at him and his girlfriend, S.G. attacked him. Defendant
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maintains he took defensive actions to restrain S.G. by throwing him on a bed
and holding him down. According to defendant, during the altercation, S.G.
accused defendant of abusing him, stating "Mom told me you physically abused
us. That’s why you couldn’t see us." S.G. added, "You hit us all the time."
Defendant had another altercation involving his children at their B’nai
Mitzvah on October 5, 2012. Defendant claimed that S.G. approached him at
the synagogue and told him that neither he, H.G., nor plaintiff wanted him at the
ceremony. The argument escalated and turned physical, requiring plaintiff's
then-boyfriend to restrain S.G.
The next day, defendant cancelled S.G.'s cell phone service and demanded
the return of a computer he gave to him as a gift. Defendant claims that absent
a single call with his son in which he informed him that defendant's mother had
died, he has not spoken to either child since the May 2012 incident.
In support of his claim that his children have consciously avoided having
any relationship with him, defendant submitted four text messages he sent to
H.G. between August 2013 and July 2014, eight text messages he sent to S.G.
between February 2015 and November 2016, and six emails he sent to H.G. from
September 2012 to November 2013. During this period, defendant remarried
and moved to Alabama. Plaintiff contended that defendant had not seen his
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children since 2012, had not spoken to them, and did not inform them of either
his marriage or his move to Alabama. Defendant responded that he attempted
to contact the children but they failed to respond to his emails or text messages,
and refused to pick up the phone when he called.
In addition to causing the estrangement between defendant and his
children, plaintiff maintained that defendant willfully failed to pay his support
obligations mandated by the PSA. Accordingly, she filed a motion to enforce
the PSA and hold defendant in violation of litigant’s rights for failing to pay for
child care, religious education costs, and other expenses. On April 24, 2014, the
court granted plaintiff's motion, and required defendant to pay outstanding child
care and Hebrew school expenses.
Shortly thereafter, plaintiff filed a motion to compel defendant to
reimburse plaintiff for unreimbursed medical expenses. In response, defendant
filed a motion for reconsideration of the April 24, 2014 order. On July 17, 2014,
the court granted plaintiff’s motion, ordered defendant to reimburse plaintiff for
$6049.16 in medical expenses incurred on behalf of the children, and directed
him to replenish the balance of the court-ordered bank account utilized for
unreimbursed medical expenses. In a separate July 17, 2014 order, the court
denied defendant's motion for reconsideration and his request to recalculate his
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unreimbursed medical expense obligation. We affirmed the court's July 17,
2014 orders in an unpublished opinion.
As a result of defendant's continued non-compliance with his obligations
under the PSA and the court's prior orders, plaintiff file a third enforcement
motion. In a February 6, 2015 order, the court found defendant in violation of
litigant’s rights under Rule 1:10, and ordered defendant to pay plaintiff, pursuant
to the April 24, 2014 order: 1) $12,821.26 for child care expenses; 2) $9661.75
for Hebrew School expenses; 3) $8385 for counsel fees; and 4) $2100 in
sanctions.
Defendant was also ordered to pay, pursuant to the July 17, 2014 order,
$6549.16 for unreimbursed medical expenses incurred on behalf of the parties'
children, plus $500 in sanctions, and $400 in sanctions for his failure to maintain
a court-ordered minimum balance of $2500 in his bank account for
unreimbursed medical expenses. The court ordered defendant to make these
payments by February 20, 2015.
When defendant failed to comply with the court’s February 6, 2015 order,
plaintiff requested that the court issue a bench warrant for defendant’s arrest.
Defendant responded by filing a cross-motion for reconsideration of the
February 6, 2016 order. On April 10, 2015, the court entered an order denying
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defendant's motion for reconsideration and scheduling an ability to pay hearing
for June 2, 2015, to determine if defendant had "funds to pay arrears as set forth
[i]n the parties' February 6, 2015 order." The hearing was not held as scheduled.
On March 23, 2016, plaintiff filed a motion to compel defendant to pay
his pro rata share of the children’s college expenses. After hearing oral
arguments, the court issued an August 19, 2016 order that directed the parties to
appear at a plenary hearing: 1) "to analyze the facts of this case under Newburgh
v. Arrigo, 88 N.J. 529 (1982) to determine whether defendant has a legal
obligation to contribute to the children's college expenses;" and 2) "to analyze
the parties' financial status to determine [their] pro rata share[s] of the college
expenses." On February 2, 2017 and February 24, 2017, the court held a plenary
hearing that addressed both defendant's ability to pay his support arrears, and
his obligation to contribute to his children's college expenses .
At the plenary hearing, plaintiff testified that as of the date of the hearing,
she was earning a gross salary of $116,000 per year, and would be earning
$118,000 per year as of her next paycheck. She testified as to her children's
finances. Plaintiff explained that as of September 30, 2016, the balances of her
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children's 529 accounts4 were $2625.12 and $9782.84 for S.G.'s two accounts
and $16,700.75 for H.G's account. She stated that S.G's savings account had a
balance of $33,122.92, and his Vanguard account had a balance of $12,204.62.
She testified that H.G's bank account had a balance of $25,712.16 and her
Vanguard account had a balance of $13,542.54. Plaintiff claimed that the
children's money was never intended to be used for their college expenses, as
she and defendant agreed that they would pay for their children’s college
educations. In this regard, she testified that the 529 accounts were established
for this very purpose.
Defendant called Linda Bruyette, CPA, his personal accountant and the
CFO of his company, NorthStar Litigation (NorthStar), as a witness. She
testified that NorthStar had a "decent cash flow" in 2012, but it had declined in
2013, 2014, and 2015. In addition, she stated that NorthStar's revenue dropped
from 2012 to 2016, and defendant and his partner make half the income they
once made. She testified that both defendant and his partner stopped taking a
weekly salary, and only received distributions when cash flow was sufficient.
4
Established pursuant to 26 U.S.C.A. § 529, these accounts provide tax
advantages to promote individuals to save for college expenses.
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Bruyette also stated that NorthStar provided loans to defendant, totaling
$2500 per month, to address a significant Internal Revenue Service (IRS) debt,
and to satisfy his child support payments. Defendant was challenging his IRS
liability, and Bruyette testified that defendant and the IRS entered into an "offer
of compromise," whereby defendant's payment are "put on hold" during the
appeal process.
Defendant testified as to his personal finances and explained that although
his case information statements in 2013 and 2014 listed his salary as $210,000,
he did not earn that amount because, as Bruyette stated, he stopped taking
paychecks when NorthStar's cash flow was insufficient. He explained that he
failed to comply with the court's prior orders because he did not have the money
to comply. Defendant conceded, however, that during the litigation, he valued
NorthStar as high as $500,000, and at the time plaintiff sought contribution for
the children's college expenses, he valued it at approximately $100,000.
Defendant also testified regarding his personal expenses to rebut
plaintiff's claims that he was living extravagantly and had the means to pay his
support obligations but willfully elected not to pay those court-ordered costs.
Defendant acknowledged that he spent approximately $13,000 for his wedding
in December 2013, $4000 for his honeymoon in January 2014, and $1100 for a
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suit and shoes in October and November 2013. However, he maintained that his
move to Alabama reduced his monthly expenses and testified that his current
$1975 monthly rent was significantly less than what he was paying in New
Jersey. Finally, defendant testified to spending a modest $28 per month on
haircuts at Life Time Spa and approximately $21 per week on alcohol for
personal use in 2014 and 2015.
Defendant also sought to call his business partner, Justin Cooper, as a
witness to testify regarding the financial state of NorthStar, and their incomes.
On February 17, 2017, the court precluded Cooper’s testimony, concluding it
was "cumulative and/or irrelevant." The court noted that Cooper's proffered
testimony with respect to NorthStar's revenues and expenses, the partners'
compensation, and loans to defendant was already provided by Bruyette, and
defendant failed to demonstrate that Cooper possessed any relevant financial
information that he did not have access to himself. Additionally, the court noted
that plaintiff's application to compel defendant to pay his support arrears had
been pending for two years, mostly due to adjournments at defendant's request,
and "Cooper's proffered testimony would necessarily cause further undue delay
without sufficient probative value."
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The court entered an order on May 22, 2017, and an amended order and
statement of reasons on May 24, 2017. The court found that defendant "has the
ability to pay his outstanding arrears and monetary sanctions totaling
$52,661.47, pursuant to the . . . February 6, 2015 [order]" and ordered him to
pay plaintiff $3000 per month towards that amount until satisfied. In its
accompanying statement of reasons, the court noted defendant’s "excessive or
unnecessary" expenditures, including pet expenses and monthly gym
membership costs. The court explained that defendant had the ability to borrow
money from NorthStar and had additional potential income from his 30%
ownership stake in a court reporting company, NorthStar Deposition Services.
Further, after applying the Newburgh factors, the court ordered defendant
to pay "40% of the children’s college expenses after the application of the
children’s 529 accounts, available grants, scholarships, and any other available
financial aid." These factors include: "(1) whether the parent, if still living with
the child, would have contributed toward the costs of the requested higher
education; (2) the effect of the background, values and goals of the parent on
the reasonableness of the expectation of the child for higher education; (3) the
amount of the contribution sought by the child for the cost of higher education;
(4) the ability of the parent to pay that cost; (5) the relationship of the requested
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contribution to the kind of school or course of study sought by the child; (6) the
financial resources of both parents; (7) the commitment to and aptitude of the
child for the requested education; (8) the financial resources of the child . . . ;
(9) the ability of the child to earn income during the school year or on vacation;
(10) the availability of financial aid in the form of college grants and loans; (11)
the child's relationship to the paying parent, including mutual affection and
shared goals as well as responsiveness to parental advice and guidance; and (12)
the relationship of the education requested to any prior training and to the overall
long-range goals of the child." Newburgh, 88 N.J. at 545 (1982). The court
explained that "[b]ased on the financial information presented," defendant can
only "reasonably afford the cost of a state school tuition" and limited defendant's
tuition obligation to that charged by the State University of New York.
With respect to Newburgh factor one, the court concluded that the parties
intended to pay for the children's college expenses, as evidenced by their
opening of 529 accounts. The court further determined that if defendant was
still residing in the marital home, he would have contributed to those costs. As
to factor two, the court noted that both parties were college educated and their
parents contributed toward their college expenses, and, therefore, "the
background values and goals of the parties establish the reasonableness of the
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children's expectations" that plaintiff and defendant would contribute toward
their college expenses.
Under factor three, the court noted the balance in S.G.'s and H.G.'s 529
accounts, and their ability to obtain scholarships and grants which would reduce
the financial burden on each parent, and concluded that it was reasonable for
each parent to contribute a pro rata share of the college expenses. With respect
to factors four, five and six, the court determined that defendant had the ability
"to make some contribution" toward college expenses but plaintiff had a "greater
ability." It also noted that the children are seeking assistance from their parents
to attend four year colleges and each parent has the financial resources to
contribute.
As to factor seven, the court determined that H.G. and S.G. have the
aptitude and commitment to attend college as reflected by their high
standardized test scores. In assessing factors eight, nine and ten, the court
acknowledged that "both children have financial resources," and noted the
significant balances in their 529, Vanguard, and bank accounts. The court also
recognized that "both children have the ability to earn income during the school
year, as well as during vacations" and have the ability to seek financial aid.
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With respect to factor eleven, the court noted the prior abuse and neglect
proceedings and concluded that the lack of relationship between defendant and
the children "is not something that should be used to penalize them." The court
concluded that there was insufficient evidence presented by the parties to make
a finding as to factor twelve.
On appeal, defendant argues that the court failed to properly consider
Newburgh factors three, eight, nine, ten, and eleven. 5 Defendant also contends
the court failed to follow its February 17, 2017 order by permitting evidence
regarding pre-2014 expenses as proof of his current ability to pay. Finally,
defendant asserts that the court committed error "by ignoring the actual evidence
and assuming facts not in evidence."
With respect to his first point, we agree with defendant that the court's
May 24, 2017 order and statement of reasons failed to correlate the court's
factual findings to all of the Newburgh factors, and specifically factors four,
eight and nine. Further, the court failed to make factual findings regarding each
5
Defendant does not take issue with the court's findings and legal conclusions
related to factors one, two, five, six, and seven. As such, we consider any
challenges to the court's findings as to those factors waived. Jefferson Loan Co.
v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (an issue not briefed
on appeal is deemed waived).
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child's college expenses, and did not sufficiently explain the basis for requiring
defendant to pay 40% of those costs.
However, we disagree with defendant as to Newburgh factors three, ten,
and eleven, and conclude the court's findings were supported by substantial,
credible evidence. Accordingly, we remand for the court to make additional
factual findings as to factors four, eight and nine, and the extent of defendant's
contribution to college expenses. We find no merit in defendant's remaining
arguments.
II.
Our review of a trial court's factual findings is limited. We will not disturb
a trial court's fact-finding if supported by "adequate, substantial, credible
evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Our deference is
particularly appropriate "when the evidence is largely testimonial and involves
questions of credibility" because the trial judge who has observed and heard
witnesses can better assess veracity. Ibid. (quoting In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997)). Further, we recognize a family court's
"special jurisdiction and expertise." Id. at 413. However, we will reverse a trial
court's findings that are "so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
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of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65
N.J. 474, 484 (1974)). In other words, reversal is appropriate when the court's
factual findings "went so wide of the mark that a mistake must have been made."
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting
C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App.
Div. 1989)).
We exercise broader review with respect to a "trial judge's evaluation of
the underlying facts and the implications to be drawn therefrom." Ibid. (quoting
In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). We
are compelled to reverse "if the court ignores applicable standards . . . ." Gotlib
v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). Finally, we owe no special
deference 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).
In determining whether a parent should be required to contribute to a
child's college costs, a trial court must balance the statutory criteria of N.J.S.A.
2A:34-23(a), the Newburgh factors, and any other relevant facts. Gac v. Gac,
186 N.J. 535, 543 (2006). Once it is established that “college contribution is
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warranted, the inquiry turns to the amount of the financial obligation itself.”
Ricci v. Ricci, 448 N.J. Super. 546, 581 (App. Div. 2017).
Defendant primarily argues that the court committed error in its finding
regarding factor eleven because it did not "properly consider the parent/child
relationship in determining defendant's obligation to contribute toward the
children's college expenses." We disagree and conclude that the judge's findings
under Newburgh factor eleven were not "so wide of the mark that the judge was
clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 59, 605
(2007).
The court's conclusion that the children should not be penalized for their
lack of relationship with defendant is supported by substantial, credible
evidence. That evidence included defendant's prior stipulation that he abused
and neglected his son and plaintiff's testimony that defendant moved to Alabama
and remarried without informing his children, repeatedly failed to comply with
support orders, and maintained no relationship with either child.
While defendant relied on a series of text messages and emails to his
children from September 2012 to November 2016, and uncorroborated attempts
to reach his children by telephone, there is no evidence in the record that
defendant sought to enforce his visitation rights, or otherwise attempted to
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engage in therapy to restore the relationship with his children during the past
five years. While both children certainly disengaged from their father, in light
of defendant's sporadic to non-existent role in their lives over the last five years,
we cannot conclude that the court abused its discretion in requiring defendant to
contribute to his children's college expenses.
Additionally, even assuming the cause of the alienation was as defendant
contends, as the trial court explained, "[a] relationship between a non-custodial
parent and a child is not required for the custodial parent or the child to ask the
noncustodial parent for financial assistance to defray college expenses." Gac,
186 N.J. at 546. Rather, factor eleven is one of twelve factors that a court must
consider.
We reach a similar conclusion with respect to the court's findings as to
Newburgh factors three and ten. With respect to those factors, defendant
contends that despite the court's acknowledgment that his children "have
significant financial resources, can seek financial aid and can get a job," the
court's order does not require his children to "apply for aid whatsoever."
Defendant's position is contradicted by the explicit terms of the May 24, 2017
order which sequences his contribution to be "after the application of the
children's 529 accounts, available grants, scholarships, and any other available
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financial aid." Thus, defendant's contribution is not triggered until the children
utilize the funds in their 529 accounts, and apply any funds obtained by way of
grants, scholarships and financial aid.
However, with respect to factors four, eight and nine, we conclude
additional fact finding is necessary. As to factor four, the court determined that
defendant had the ability "to make some contribution" to college expenses, and
quantified that obligation at 40% of those expenses. However, the court did not
determine the gross amount of the college costs, or the net amount of those
expenses, after application of the children's 529 accounts, grants, scholarships
and available financial aid, that defendant was expected to pay. Without that
information, or at a minimum, a reasonable estimate of those gross and net
expenses, we are unable to conclude that the court's decision that defendant had
the ability to pay 40% of those expenses was supported by substantial, credible
evidence.
Further, we are unable to discern from the court's statement of reasons
why it set defendant's contribution at 40%, as opposed to some other percentage.
In this regard, the court did not explain if that percentage was grounded in the
parties' current income or assets. And, while we acknowledge that the court
attempted to minimize the financial impact on defendant by limiting, in part, his
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percentage contribution to the cost of tuition charged by the State University of
New York, as opposed to the cost of tuition at a private college, without an
explanation of how the court reached its conclusion that defendant is able to pay
40%, the fact that the tuition expenses may be less than a private college does
explain why the court elected 40% in the first instance and why that percentage
is consistent with the principles underlying Newburgh.
We similarly conclude that additional factual findings are necessary to
support the court's conclusions regarding Newburgh factors eight and nine.
With respect to factor eight, while plaintiff testified that the children's Vanguard
funds and saving accounts came from inheritances and gifts and "were never
intended for the children to spend on their college education," the court made
no findings as to these accounts, other than acknowledging their existence. As
to factor nine, although the court concluded that both children were capable of
earning income during the school year, and while on vacations, the court's
statement of reasons, and accompanying order, make no connection between this
finding and the court's conclusion that defendant pay 40% of the children's
college expenses.
On remand, the court should reconsider Newburgh factor four in light of
the actual, or reasonably estimated, college expenses for each child. The court
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should also detail the factual and legal basis for any percentage contribution
ascribed to plaintiff and defendant. Further, under factors eight and nine, the
court should determine a reasonable estimate of the amount each child is capable
of earning, and what amount, if any, they should contribute to their college
expenses. Additionally, the court should make relevant findings regarding the
children's Vanguard and savings accounts to determine if those funds should be
utilized to defray their college expenses.
III.
Turning to defendant's second point on appeal, we reject his claim that the
court committed error by "not following its previous order regarding the central
issue of the hearing." The scope of the plenary hearing was detailed in the
court's April 10, 2015 and August 19, 2016 orders. Among the issues before the
court was whether defendant's failure to pay his support arrears was willful or
excusable. During the plenary hearing, the court considered evidence of
defendant's personal bank statements and determined that defendant could have
substituted many of his purchases with "less costly alternatives." The issue of
defendant's personal expenditures was directly relevant to defendant's
willfulness.
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Further, the court's decision to preclude Cooper from testifying was based
on the court's fully supported finding that Cooper's testimony was duplicative
of Bruyette's testimony. In any event, the court permitted defendant to testify
extensively regarding his income and expenses, which he described as
reasonable and largely business related.
IV.
Finally, we reject defendant's claim that the court "ignor[ed] the actual
evidence and assum[ed] facts not in evidence." In support of this argument,
defendant maintains the court incorrectly concluded that he had the capacity to
earn additional income based on his 30% ownership interest in NorthStar
Deposition Services, as there was no evidence that he ever received income from
that company. Further, defendant argues that there was no evidence to support
the court's finding that he had the ability to borrow funds from NorthStar, as he
had not "borrowed money from the company since 2014" and it "no longer has
the ability to lend money."
"The issue to be decided at an ability to [pay] hearing closely parallels
determinations Family Part judges make on a daily basis concerning the
evaluation of financial information provided through documents and testimony,"
in an "attempt[] to achieve a fair resolution of the economic issues of parties
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going through the emotionally charged process of divorce." Schochet v.
Schochet, 435 N.J. Super. 542, 550-51 (App. Div. 2014). The hearing's purpose
is "simply to determine whether that failure was excusable or willful," or
essentially, if "the obligor was able to pay and did not." Id. at 548.
Here, the court's factual finding regarding defendant's willful non-
compliance and his ability to pay his arrears is fully supported by the record.
The court reached its conclusion after reviewing defendant's business and
personal expenditures and characterized certain of those expenditures, such a s
his "pet expenses, . . . high end clothes and shoe purchases, . . . gym
memberships . . . , and his honeymoon to Punta Cana," as "excessive or
unnecessary."
Further, the court explained that defendant regularly borrowed money to
make significant monthly payments to the IRS, and correctly noted that due to
the "offer and compromise" between defendant and the IRS, his payment
obligations were currently suspended. The court correctly observed that
defendant could have continued to borrow money from NorthStar, which he
admitted had a value of at least $100,000, but chose not to. Based on these
actions, the court concluded that defendant "triaged" which debts were important
to pay.
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To the extent the court erroneously concluded that defendant received
income from NorthStar Deposition Services, we find any error harmless as there
was sufficient, independent support in the record for the court's findings that
defendant had the ability to pay his arrears. Further, defendant has not claimed
on appeal that he is unable to pay the $3000 per month ordered by the court to
satisfy his arrears based on his current income. As such, whether NorthStar
Deposition Services will provide income to defendant in the future is not
relevant.
To the degree that we have not specifically addressed any of defendant's
arguments, we find them without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and reversed in part and remanded for further
proceedings. We do not retain jurisdiction.
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