TOVA ROSS VS. DAVID EVAN ROSS (FM-02-2667-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1764-19
TOVA ROSS,
Plaintiff-Respondent,
v.
DAVID EVAN ROSS,
Defendant-Appellant.
_______________________
Argued November 1, 2021 – Decided November 30, 2021
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2667-15.
David Evan Ross, appellant, argued the cause pro se.
Tova Ross, respondent, argued the cause pro se.
PER CURIAM
In this post-judgment matrimonial matter, defendant David Evan Ross
appeals from a November 18, 2019 order fixing his child support obligation and
his arrears; he also challenges a January 15, 2020 order denying his request to
compel plaintiff to accommodate adjustments he may seek to the parenting time
schedule.1 We reverse the November 18 order and affirm the January 15 order.
I.
Defendant and plaintiff Tova Ross were married in 2008 and divorced in
2015. Under the Marital Settlement Agreement (MSA) incorporated into the
parties' Dual Judgement of Divorce (JOD), they share "joint legal and residential
custody" of their two children, ages nine and twelve, and enjoy time with the
children pursuant to an alternating weekly schedule. Although each party is
designated as a parent of primary residence (PPR) under the MSA, plaintiff is
the children's true PPR because the parenting time schedule provides that she
spends more than half of the overnights with the children annually. See Child
Support Guidelines (Guidelines), Pressler & Verniero, Current N.J. Court
Rules, Appendix IX-A to R. 5:6A, ¶14(b)(1), www.gannlaw.com (2022). The
1
The November 18 order amended a November 15, 2019 order, and the January
15 order amended a September 13, 2019 order. In both instances, the orders
were amended to reflect the correct docket number for the case.
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parties agree defendant has 156 overnights with the children each year, i.e., less
than half the overnights.
When the parties executed the MSA, they stipulated defendant would pay
child support at the rate of $600 per month. Also, under the MSA, they agreed
plaintiff "may be taking up to an additional [twenty] nights of parenting time to
accommodate [defendant's] work schedule" and the child support "payment . . .
takes same into account." (Emphasis added).
In February 2017, the parties executed certain post-judgment agreements
(PJAs) to memorialize modifications they made to the MSA. In one PJA,
defendant's child support obligation was lowered from $600 to $475 a month for
the period between January and April 2016, to account for the children's transfer
to his health insurance plan. Another PJA provided, in part:
[B]eginning on May 4, 2016, . . . we have agreed to
reduce the monthly amount for child support for [our
two children] from $475 a month to $300 a month due
to the revision of the child support clause on page
[twelve] of the [MSA], which states, "the parties have
agreed that, effective July 1, 2015, Husband shall pay
the sum of $600/month as and for child support to the
Wife. The parties agree that the Wife may be taking up
to an additional [twenty] nights of parenting time to
accommodate Husband's work schedule and that the
payment set forth above takes same into account."
[The parties] have agreed that they will amend the
above clause to state that when [Husband] has a work
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conflict that affects the parenting schedule, the parties
will arrange a mutual "switch" which does not increase
the parenting time for [Wife]. Due to this new
agreement between the parties, the child support
amount was reduced, as of the above date, from $475 a
month to $300 a month.
(Emphasis added).
II.
Starting in June 2019 and for months thereafter, the parties engaged in
heavy motion practice, raising several issues which required the trial court's
intervention. We address only those issues pertaining to the instant appeal.
Initially, plaintiff moved for an upward modification of child support. She
argued the children had "increased needs" and that defendant no longer should
benefit from a reduced child support obligation because his health insurance
coverage for the children lapsed. Several weeks later, defendant filed a cross-
motion, asking, in part, that the judge recalculate his child support obligation
due to a purported increase in plaintiff's salary. Further, he asked that he be
permitted to provide a "six[-]month parenting schedule" twice a year, to which
plaintiff would have to agree "unless she [could] demonstrate a valid reason why
she [could] not adhere to the schedule." Defendant based this request on
assertions plaintiff no longer cooperated with him in "switching" days if he had
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a musical "gig" that conflicted with his scheduled parenting time. He claimed
that he "lost many clients and potential clients over the years as a result."
The judge heard argument on the parties' cross-applications on September
13, 2019. Defendant appeared with counsel; plaintiff was self-represented.
Given that both parties sought a review of child support, the judge ordered each
party to submit updated case information statements (CISs) by the following
month, and directed the parties specifically to include their three most recent
pay stubs and three most recent tax returns.
After she heard argument from defendant's counsel about defendant's
request that plaintiff be ordered to accommodate his adjustments to the parenting
time schedule, the judge denied this relief. The judge observed that the
provision in the MSA reflecting that plaintiff "may be taking up to an additional
[twenty] nights of parenting time to accommodate [defendant's] work schedule"
was "actually in the child support section" and the parties used the word, "may,"
rather than "shall," in that section of the MSA. Therefore, the judge found
plaintiff might spend up to twenty additional nights with the children per year
but was not obligated to do so. Further, the judge deduced that given the
permissive language tied to the additional overnights was included in the child
support section of the MSA, "the inference [was] that [plaintiff] would not be
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entitled to more child support based upon [the extra] overnights." Also, because
the parties subsequently entered into a PJA that lowered defendant's child
support obligation to $300 a month and "introduce[d] this concept of switching,"
the judge concluded "child support was reduced based upon the fact that there's
not this potential for [twenty] additional nights of parenting time." She further
interpreted the PJA that mentioned "switching" to mean that "when [defendant]
has a work conflict, the parties will arrange a mutual switch which does not
increase the parenting time" to plaintiff. The judge also noted, "[t]here's nothing
in either the [MSA] or . . . the [PJA] that says the switches are required or
mandatory of [plaintiff]." Accordingly, the judge denied "the relief . . . that
[plaintiff] must agree unless she can demonstrate a valid reason why she can't
adhere to [defendant's] schedule."
Despite this ruling, defendant's attorney continued to argue that plaintiff
should accommodate defendant's work schedule, remarking that plaintiff had
acted in "bad faith," and "contrary to what the agreement was." Moreover,
defendant attempted to interject his own comments, at which point the judge
reminded defendant that his attorney "ha[d] spoken on [his] behalf." The judge
also stated that while she would "encourage the parents to work together,"
"there's nothing here from which I can find that [plaintiff] has not operated in
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good faith" so the court would "not requir[e] [plaintiff] to show [a] valid reason
why she can't switch parenting time with [defendant]."
Following argument, the judge entered an order, denying the bulk of the
relief sought by the parties, but reserving on defendant's request for a counsel
fee award and scheduling another date for the parties to return to court to address
the issue of child support.
III.
Less than two weeks after the entry of the September 13 order, plaintiff
filed another motion, seeking relief unrelated to this appeal. In October 2019,
defendant sought reconsideration of the September 13 order, contending the
judge erred in failing to compel plaintiff to accommodate future "switches" in
the parenting time schedule that defendant anticipated he would need for work.
In response, plaintiff filed a cross-motion seeking to enforce the September 13
order and the MSA, but she also sought to amend a provision in the MSA to
avoid defendant making "last-minute decisions" on enrolling the children in
camps "until he can barter tuition for labor (musical concert)." Defendant
objected to this proposed amendment, arguing he "made generous barter
arrangements with our children's summer camps" so the parties' "children often
get to go to camp for free in exchange for my music services."
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On November 15, 2019, both parties appeared self-represented to argue
their outstanding motions. After they spoke at length about the relief they
sought and expressed concern that their former spouses were "hiding income"
to gain an advantage when child support was recalculated, the judge denied their
respective motions, including defendant's outstanding counsel fee application
and his reconsideration motion. Regarding defendant's reconsideration motion,
the judge found there was no basis to revisit her denial of defendant's request to
compel his ex-wife to accept his adjustments to the parenting schedule. The
judge determined the denial of this relief was not "based on a palpably incorrect
basis or theory" because "no[]where in the MSA or in the [PJA] . . . is [plaintiff]
obligated to take . . . physical custody of the children when [defendant] has a
work obligation."
The judge also addressed the issue of child support left open after entry of
the September 13 order. First, she determined that plaintiff's salary,
"extrapolated from her pay stubs," was $77,470, so that her weekly earnings
were $1,490 per week. Turning to defendant's income, the judge considered his
"W-2 job" as well as his earnings from his music business. She referenced his
2018 tax returns and his "2019 pay stubs [from Yeshiva University] . . . to
extrapolate his annual salary," and found his "bi-weekly pay from that [W-2]
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position [wa]s $1,420, so weekly of course would be half of that. But ultimately,
that would total $36,920 [in] salary annually from his W-2 [employment]."
The judge further referenced defendant's 2018 tax returns to calculate his
business income and found he "report[ed] a $72,117 profit from which . . . he
deduct[ed] $11,459 for use of his private residence in the business" as a
recording studio. The judge added that although she was "not suggesting that
[the $11,459] [wa]s not tax deductible," she did "not believe it [wa]s deductible
for purposes of . . . the child support guidelines." Defendant argued that this
particular deduction was for a recording studio he operated out of his home. In
response, the judge explained again that the amount was "not deductible for
purposes of child support. It is still money that is coming in." After adding
defendant's W-2 income to his business income, the judge calculated his total
gross income to be $109,037 annually. 2
2
Despite that defendant admitted bartering his services in exchange for other
services, and the judge noted at the November 15 argument that he "had the
ability in the past, . . . to secure . . . discounts based on his profession where he
exchanges services in return for those discounts," the extent of defendant's
bartering was not quantified, nor does it appear the judge considered the effect
of defendant's bartering on his income when she recalculated his child support
obligation.
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Based on the parties' combined incomes, the cost of the children's health
insurance, and the fact that defendant enjoyed 156 overnights annually with the
children, the judge determined that defendant's child support obligation under
the Guidelines was $194 per week. Additionally, she found this obligation
should be "effective [as of] the filing date of the original motion, which was
[July 3,] 2019."
Shortly after rendering her oral decision, the judge returned to the bench,
had the parties placed under oath, and stated she needed to clarify her decision
regarding child support. She noted that "because child support is being ordered
to be retroactive to the date of the filing [of the original motion], . . . [defendant]
is entitled to a credit for . . . the child support . . . he has been paying." Similarly,
she recognized defendant should be credited for health insurance payments he
had made after July 3, 2019. Once she applied these credits, she fixed
defendant's arrears at $2,061. Defendant then stated, "I just had one question
about the child support calculation which I didn't understand. I understood Your
Honor when she said my W-2 [Yeshiva University] income was calculated at
$36,400. I'm not sure I understand that calculation, because I know that my
contract with YU has never surpassed $30,000." The judge replied that her
calculation "was based on the [2019] pay stubs that were submitted, sir." She
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then concluded the hearing and issued various orders to reflect her decisions on
the parties' "series of filings."
IV.
On appeal, defendant presents the following arguments for our
consideration:
I. THE TRIAL COURT ERRED IN ITS
CALCULATION OF THE DEFENDANT'S CHILD
SUPPORT OBLIGATION – W-2 INCOME.
II. THE TRIAL COURT ERRED IN ITS
CALCULATION OF THE DEFENDANT'S CHILD
SUPPORT OBLIGATION – NOT CONSIDERING
LEGITIMATE REAL BUSINESS EXPENSES.
III. THE TRIAL COURT ERRED IN ITS
CALCULATION OF THE DEFENDANT'S CHILD
SUPPORT OBLIGATION – NOT CONSIDERING
THE TRUE FULL INCOME OF THE PLAINTIFF.
IV. THE TRIAL COURT JUDGE WAS BIASED
AGAINST THE DEFENDANT AND DID NOT RULE
CORRECTLY REGARDING THE [TWENTY]
EXTRA PARENTING OVERNIGHTS AS PER THE
MSA.
Because defendant's arguments are broad, but the scope of our review is
narrow, we begin by emphasizing for the parties' benefit the well-established
principles that guide our review of Family Part judgments. The family court
"has substantial discretion in making a child support award. If consistent with
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the law, such an award will not be disturbed unless it is manifestly unreasonable,
arbitrary, or clearly contrary to reason or to other evidence[.]" 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)). Additionally, we review decisions on
reconsideration motions for an abuse of discretion, understanding
[m]otions for reconsideration are granted only under
very narrow circumstances[.] Reconsideration should
be used only for those cases which fall into that narrow
corridor in which either (l) the [c]ourt has expressed its
decision based upon a palpably incorrect or irrational
basis, or (2) it is obvious that the [c]ourt either did not
consider, or failed to appreciate the significance of
probative, competent evidence.
[Fusco v. Bd. of Educ. of City of Newark, 349 N.J.
Super. 455, 462 (App. Div. 2002) (internal citations
omitted).]
But "we confer no deference to a trial court's interpretation of the law, which we
review de novo[.]" Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 587
(App. Div. 2016).
Regarding the arguments related to child support in Points I, II and III, we
note that by statute, parents are presumptively required to provide for the
financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). New
Jersey has established Child Support Guidelines, and corresponding worksheets,
to calculate child support. See Pressler & Verniero, Appendix IX-A and IX-B
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to R. 5:6A. The Guidelines "shall be applied when an application to establish
or modify child support is considered by the court." R. 5:6A; see also Lozner v.
Lozner, 388 N.J. Super. 471, 479-80 (App. Div. 2006). "A court may deviate
from the [G]uidelines only when good cause demonstrates that [their]
application . . . would be inappropriate." Id. at 480 (citing Ribner v. Ribner, 290
N.J. Super. 66, 73 (App. Div. 1996)).
Pursuant to Appendix IX-A of the Guidelines, the parent claiming to be
the parent of alternate residence (PAR) must establish he or she
has or is expected to have the child for the substantial
equivalent of two or more overnights per week over a
year or more (at least [twenty-eight percent] of the
time) and . . . can show that separate living
accommodations for the child are provided during such
times (i.e., evidence of separate living accommodations
maintained specifically for the child during overnight
stays).
[Pressler & Verniero, Appendix IX-A to R. 5:6A,
¶14(c)(2).]
By contrast, parental visitation is defined as "less than the substantial equivalent
of two or more overnights with the child each week (approximately twenty-eight
percent of overnights excluding vacations and holidays)." Id. at ¶13(a).
Here, it is uncontroverted that defendant enjoys 156 overnights with the
children annually. Therefore, he meets the definition of a PAR, and any
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recalculation of his child support obligation should have been based on a shared
parenting worksheet. Id. at Appendix IX-B to R. 5:6A. Because the judge
inadvertently used a sole parenting worksheet to calculate defendant's new child
support obligation, and by extension, his arrears, we are constrained to reverse
those portions of the November 18 order pertaining to defendant's child support
obligations.
We recognize that neither party raised this error in his or her merits brief.
Moreover, during argument before us, both parties acknowledged they were
unaware of the error and had not supplied the judge with a proposed shared
parenting worksheet before she recalculated child support and fixed defendant's
arrears. Therefore, on remand, the parties are encouraged to submit proposed
shared parenting worksheets for the court's consideration.
Given our conclusion, we need not discuss at length the balance of
defendant's arguments under Points I, II, and III. Nonetheless, we are compelled
to address his contention that the judge erred by inflating his W-2 and business
income.
First, as to his W-2 income from Yeshiva University, defendant argues
that after the judge reviewed his pay stubs, she "mistak[en]ly divided . . . in half"
the "$1,420 . . . displayed on each pay stub," assuming he was paid every other
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week, but he is paid twice monthly. We are hard pressed to fault the judge for
this mistake, because although defendant's pay stubs reflect his "[e]arnings are
calculated on a [s]emi-[m]onthly basis," defendant handwrote on page four of
his October 16, 2019 CIS that he is paid "every other week." Defendant also
failed to correct the judge during the November 15, 2019 hearing when she
stated "his bi-weekly pay from [his W-2] position is $1,420, so weekly of course
would be half of that." Also, at no time during the November 15 hearing did
defendant alert the judge to the fact he was paid only ten months out of the year
at Yeshiva University, nor does his October 2019 CIS reflect this fact.
Adding to the confusion, defendant's pay stubs showed he earned
additional pay of $125 as of October 2019. Further, defendant's October 2019
CIS reflected his handwritten notations that "$4,000 in gross miscellaneous
income was now bundled into [his] salary for this year," and he received
"overtime pay on rare occasion, but [he] include[d] it in with [his] total income."
On remand, the judge should ensure defendant discloses the amount of any
"additional" "miscellaneous" or "overtime" pay he has received so that child
support can be properly calculated.
Similarly, to the extent defendant concedes in his submissions that "the
TABC school in Teaneck . . . did ask to hire [him] to teach some music classes
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at the high school and yes, they did agree to pay [him] on a per class basis," on
remand, he should disclose whether he received remuneration from TABC
school, and if so, how much he received and when he was paid. Although
defendant argues plaintiff only raised the issue of his receiving compensation
from TABC "after this [a]ppeal was filed" and this issue "was never submitted
in any documents or brought up at trial, so it has no bearing on this [a]ppeal in
any way," we disagree. Indeed, for a trial court to be able to calculate a fair
child support award, both parties are obligated to reveal all sources of income,
as defined under the Guidelines, which includes compensation for services, the
operation of a business, and "the value of in-kind benefits." Ibid.; see also
N.J.S.A. 2A:34-23(a)(3).
Regarding defendant's Point II, suffice it to say that when a trial court
proceeds to calculate the child support obligation of a self-employed obligor, it
must carefully review the obligor's income and expenses, understanding that
"[i]n most cases," the amount of gross income "will differ from the
determination of business income for tax purposes." Ibid.Specifically excluded from ordinary and necessary
expenses, for the purpose of the[] [G]uidelines are
expenses allowed by the IRS for:
....
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(5) home offices;
(6) entertainment;
(7) travel in excess of the government rate;
(8) non-automobile travel that exceeds standard rates;
....
(11) any other business expenses that the court finds to
be inappropriate for determining gross income for child
support purposes.
[Ibid.]
Accordingly, we discern no basis to disturb the judge's decision to disallow
defendant's home office deduction when calculating his gross income from his
music business.
To the extent defendant argues in Point III that the judge erred by failing
to consider "the true full income of the plaintiff," we are not persuaded. In fact,
while defendant speculates plaintiff earned income from penning "numerous
articles," he does not point to evidence the judge overlooked which proved
plaintiff was hiding income. Rather, he states plaintiff is "intentionally hiding
her independent writing income from [him] and the court, as evidenced from her
declaration of [zero dollars] in independent writing income on her 2018 Tax
Return, after steadily increasing independent writing incomes in 2016 and 2017
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respectively," but then he queries, "did she make actual income from her
independent writing projects in 2018?" Nevertheless, we trust that on remand,
the judge will remind the parties they are obliged to disclose all sources of
income, so the judge is properly equipped to fix a fair child support award.
Defendant also contends in Point IV that the judge harbored a bias against
him and "did not rule correctly regarding the [twenty] extra parenting overnights
as per the MSA." This argument lacks merit. Certainly, "[c]ourts have
continuing power to oversee divorce agreements . . . [and to] enforce such
agreements only to the extent they [are] fair and equitable." Konzelman v.
Konzelman, 158 N.J. 185, 194 (1999) (citations omitted). Also, "[t]he law
grants particular leniency to agreements made in the domestic arena," thus
allowing "judges greater discretion when interpreting such agreements."
Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992).
Here, although defendant argues the judge misinterpreted the provision
under the MSA regarding plaintiff's taking up to "[twenty] extra parenting
overnights," it is undisputed that provision in the MSA is no longer in effect. In
fact, it was replaced by consent with a clause in a PJA which provided for a
"mutual 'switch'" in parenting time when defendant had a work conflict.
(Emphasis added). A "mutual" switch, by its very definition, is not a "switch"
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effectuated by one party unilaterally dictating to another party when the switch
must occur. Thus, we conclude the judge did not err in denying defendant's
request to compel plaintiff to accept his proposed modifications to the parenting
time schedule. Instead, we affirm paragraph twelve of the amended January 15,
2020 order reflecting this denial, and similarly affirm paragraph one of the
amended November 18, 2019 order denying defendant's motion for
reconsideration on this issue.
Finally, having duly considered the voluminous record in this matter,
including the transcripts of oral argument from the September 13 and November
15, 2019 hearings, we are satisfied the judge demonstrated no bias toward either
party. Rather, she was evenhanded in her treatment of the parties, correctly
denied the bulk of the relief they requested in their "series of filings," and
exercised appropriate control of her courtroom while also affording the parties
significant latitude in their pro se presentations when they strayed from their
formal arguments. As we have previously cautioned, "[b]ias cannot be inferred
from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298,
318 (App. Div. 2008) (citing Matthews v. Deane, 196 N.J. Super. 441, 444-47
(Ch. Div. 1984)).
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In sum, we: reverse only that portion of the November 18, 2019 order
fixing defendant's child support obligation at $194 per week and his arrears at
$2,061; affirm the January 15, 2020 order; and remand this matter for further
proceedings. Due to the passage of time since defendant's child support
obligation was fixed, not to mention the concerns raised by the parties regarding
the veracity of each other's financial information, the remand judge is authorized
to direct the parties to supplement their financial information before the judge
recalculates the child support award and the amount of any child support arrears.
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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