L.S.R. VS. S.T. (FD-07-4824-09, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1865-20
L.S.R.,
Plaintiff-Appellant,
v.
S.T.,1
Defendant-Respondent.
__________________________
Submitted November 1, 2021 – Decided November 19, 2021
Before Judges Sabatino and Rothstadt.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FD-07-4824-09.
Williams Law Group, LLC, attorneys for appellant
(Elena K. Weitz, on the briefs).
Charles P. Cohen, attorney for respondent.
PER CURIAM
1
We choose to use initials for the parties to protect the privacy of their son, who
is the subject of the court’s order directing, among other things, that he receive
therapy. R. 1:38-3(d).
In this Family Part case under the non-dissolution docket, a child’s
mother, plaintiff L.S.R., appeals certain portions of the trial court's February 5,
2021 order, issued after hearings conducted remotely on three separate days.
Specifically, the mother appeals the order’s provisions: (1) requiring her to
alternate the child tax exemption with the child's father, defendant S.T., (2)
reducing her child support from $107 per week to $70; and (3) awarding the
father partial counsel fees. We affirm.
The parties have one child together, who was born in September 2008.
The parties separated in 2012, at which time primary residential custody was
granted to the mother with parenting time for the father. Unfortunately, the
parents have had a contentious and litigious relationship. As of the time of the
present motion practice, the father apparently had seen the child only a few times
over the last several years.
The motions and cross motions that resulted in the February 5, 2021 order
largely concerned custody and parenting time issues. On those issues, which
are not the subject of the mother’s present appeal, the Family Part judge denied
the mother's motion to obtain sole custody of the child. The judge also denied
the father's request to become the primary custodial parent, but did order
reunification therapy for the father and the child.
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The issues before us on this appeal are financial in nature. Initially, the
father had been ordered at the time custody was established in 2012 to pay $40
weekly in child support. Later, by order dated March 6, 2015, the child support
was increased to $107 per week. That same order from 2015 specified that the
parties were to alternate yearly the federal tax exemption for the child.
However, the mother did not cooperate with the father on that arrangement and
failed to supply him with the child’s Social Security card so that he could take
advantage of the tax exemption. Meanwhile the father married and is now
supporting an additional biological child with his wife.
Both parties became unemployed during the COVID-19 pandemic. As a
result, the mother had been staying home with the child (who was age twelve at
the time of the motion practice) and hoped to attend school or a training
program, although she was not enrolled at the time of the motions. Meanwhile,
the father was also not working, but was enrolled in school to earn a skills
certification which he intended to complete by September 2021.
In connection with the aspects of the motion practice concerning monetary
issues, the parties submitted financial Case Information Statements ("CIS") to
the court pursuant to Rules 5:5-2 and -3. However, the parties' CIS forms were
incomplete, and, among other things, did not include fully legible copies of their
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tax returns. The judge found the mother was particularly uncooperative and had
not acted in good faith, despite telling her before and at the first two hearings
that she needed to submit more supporting financial documents.
Faced with this situation, the judge found both parents were
underemployed. The judge imputed to both parents the hourly minimum wage,
which he multiplied by forty hours per week. The judge found that, although it
was desirable for the parents to obtain education and job training, they each had
a paramount obligation to earn some money to support their son.
Although it was not supplied by counsel in the appendices on appeal, our
clerk's office obtained from the Family Part the child support worksheet the
judge is required to complete in making a child support determination, pursuant
to Rule 5:6A and Appendix IX of the Court Rules, that accompanied the
February 5, 2021 order. The worksheet utilized the Child Support Guidelines
prescribed by Rule 5:6A.2 The worksheet assumed the father hosted no
overnight stays of the parties' child. It also appropriately factored in his need to
support an additional child. The worksheet incorporated the self-support reserve
for both parties because of their modest incomes.
2
See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,
Appendix IX-A to R. 5:6A, ¶2, www.gannlaw.com (2021) ("Child Support
Guidelines").
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Based on the Guidelines, the support level preliminarily was calculated
on the worksheet at $50 weekly. In his discretion, the judge increased that figure
by $20 weekly to $70.
The judge also ordered the mother to alternate the child exemption
annually with the father, as the court had previously ordered in 2015.
Lastly, the judge awarded partial counsel fees to the father’s attorney of
$7337, representing two thirds of the $11,005 amount his counsel billed.
Now represented by counsel on appeal, the mother seeks reversal of the
court's determinations concerning the tax exemption, the modification of child
support, and the counsel fee award. The father has not cross-appealed any
rulings.
We apply a substantial degree of deference in reviewing the Family Part
judge's determinations on these issues. We will not disturb the trial court's
findings unless they are demonstrated to lack support in the record with
substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of
Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's
feel for the case. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); see also Pascale
v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise,
appellate courts must accord particular deference to fact-finding in family cases,
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and to the conclusions that logically flow from those findings. Cesare, 154 N.J.
at 412-13.
More specifically, a trial court's imputation of income for purposes of
calibrating support ordinarily will not be disturbed, unless the appellant
demonstrates an abuse of discretion. Ibrahim v. Aziz, 402 N.J. Super. 205, 210
(App. Div. 2008); Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004).
Applying these principles, we affirm the findings of the February 5, 2021
order challenged on appeal. We do so substantially for the sound reasons
expressed by Judge Philip J. Degnan, which are consistent with the applicable
law. We add only a few brief amplifying comments.
The mother argues she is entitled under the federal statute, 26 U.S.C. §
152(e), to receive the child exemption annually because she is the primary
custodial parent. But her argument ignores that case law permits family part
judges to allocate the exemption to either parent based on equitable principles.
See Gwodz v. Gwodz, 234 N.J. Super. 56, 62 (App. Div. 1989). The earlier
March 2015 order made such an equitable allocation alternating the exemption
on an annual basis, and the mother had no right to disobey it.
The judge acted well within his discretion in modifying the child support
award. The father’s additional child is a change of circumstances entitling him
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to a recalculation. See Child Support Guidelines ¶10; see also Lepis v. Lepis,
83 N.J. 139 (1980) (authorizing modification of support where a change in
circumstances has occurred). The judge also reasonably imputed minimum
wage earnings to both parents for purposes of the Guidelines calculation. See
Child Support Guidelines; Caplan v. Caplan, 182 N.J. 250, 268 (2005) (noting
the court's authority to impute earnings to parents who are voluntarily
underemployed or unemployed). The child is old enough for both parents to be
working.
We reject the mother’s argument that the order must be vacated because
the judge had enough financial information to make the support calculation,
dispelling the need for a minimum wage-consistent income to be imputed to the
parties. The mother herself did not supply the court with timely and complete
financial documents. The documents she produced had missing pages and other
pertinent information was covered. Additionally, the father's tax returns had not
been produced. It would be a waste of time to remand this matter for a fourth
hearing. The court had the prerogative to fashion a support level based upon the
information that was provided through the documents it received, albeit
incomplete, and the parties' testimony. See, e.g., Elrom v. Elrom, 439 N.J.
Super. 424, 434 (App. Div. 2015); Tash v. Tash, 353 N.J. Super. 94, 99 (App.
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Div. 2002). Also, in criticizing the fairness of the order, the mother overlooks
that the judge made an upward adjustment from the Guidelines figure for her
benefit.
Lastly, we sustain the counsel fee award, which was consistent with Rule
5:3-5(c) and applicable fee-shifting factors under case law. See Mani v. Mani,
183 N.J. 70, 93-95 (2005). The father largely prevailed in the motion practice
on several issues. The judge also determined the mother had not acted in good
faith, making the following pointed observations on the record:
I find that [the mother] has failed to act in good faith
during the pendency of this motion and has failed to
comply with court orders going back to 2015. Indeed,
on March 6th, 2015, [the mother] was ordered to
provide [the father] with a copy of [the child's] Social
Security card as the parties were to alternate years
during which they would claim [the child] on their
taxes. By her own testimony, [the mother] disagreed
with that decision. Rather than avail herself of proper
channels to contest the court order, she simply refused
to comply with the court order until very recently and
has claimed [the child] on her tax [returns] every year
since then. That has deprived [the father] of at least
three tax years during which he could have claimed [the
child] on his taxes, and consequently, the financial
benefits of doing that.
Part of [the father's] application was simply to enforce
the terms of an order entered in 2015. Thus not only
does [this] Court find that [the mother] has acted in bad
faith but also finds that the award of attorney's fees
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constitutes an equitable remedy as contemplated in
Rule 5:3-7, the sanctions rule.
The record supports these observations. The judge had a sound basis to order
fee shifting, while reasonably tempering that relief by reducing the father's fee
application by one third. Given our limited scope of review of such fee issues,
we affirm the ruling. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386
(2009) (reiterating the customary deference owed on appeal in reviewing a trial
court's fee award).
To the extent we have not commented, we reject all other arguments raised
on appeal because they lack sufficient merit for discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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