LISA TAYLOR VS. JARED TAYLOR (FM-10-0377-16, HUNTERDON 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NOT FOR PUBLICATION WITHOUT THE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-3714-19
LISA TAYLOR,
n/k/a LISA DEMBECK,
Plaintiff-Appellant,
v.
JARED TAYLOR ,
Defendant-Respondent.
________________________
Argued October 18, 2021 – Decided December 2, 2021
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon County,
Docket No. FM-10-0377-16.
Ann Fabrikant argued the cause for appellant
(Fabrikant Law, LLC, attorneys; Ann Fabrikant, of
counsel and on the briefs).
Rosanne S. DeTorres argued the cause for respondent
(DeTorres & DeGeorge, LLC, attorneys; Rosanne S.
DeTorres, of counsel and on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Lisa Taylor, now
known as Lisa Dembeck, appeals from the April 7, 2020 Family Part order
denying her cross-motion for a modification of defendant Jared Taylor's $307
weekly child support obligation for the parties' two children based on his self-
employed income. She also appeals the denial of her request for a modification
of the percentages allocated between the parties for payment of unreimbursed
medical expenses exceeding $250 per year per child and the May 22, 2020 order
denying her motion for reconsideration. The judge ordered defendant to obtain
a $125,000 life insurance policy to secure his child support obligation.
The decision as to defendant's income and the $125,000 life insurance
amount is affirmed, but we are constrained to vacate both orders in part and
remand to the Family Part for the judge to reconsider, address, and make
findings of fact and conclusions of law as to: (1) the imputation of income to
plaintiff; and (2) plaintiff's claim she is entitled to a deduction of child care costs
under Appendix IX-A, guideline twelve of the child support guidelines. We also
direct the judge to utilize the line seven ratio on the medical allocation ratio after
reconsideration of the above factors.
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I.
The following facts are gleaned from the motion record. The parties
divorced in July 2010, after a five-year marriage. They entered into a
comprehensive property settlement agreement (PSA), which was incorporated
into their judgment of divorce (JOD). Two children were born of the marriage:
M.T.,1 born in December 2006, and Ma.T., born in January 2010. Plaintiff
remarried and has two children with her current husband: a son born in May
2016, and another son born in May 2019. On February 27, 2015, the parties
entered into a consent order allowing plaintiff to relocate with the parties'
children to Goshen, New York, where she now resides with all four of her
children.
Paragraph two of the PSA provided defendant would pay plaintiff $334
per week in child support for their two children via income withholding or other
means through the appropriate county probation department. Arrearages of $10
per week were assessed, making the child support obligation $344 per week until
the arrearages were satisfied.
The child support calculation was based upon the New Jersey child
support guidelines–sole parenting worksheet. Plaintiff's annual income was
1
We use initials to protect the confidentiality of the minor children.
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3
imputed at $32,000, or $615 per week, and defendant's annual income was listed
as $60,000, or $1,154 per week. The worksheet included defendant's health
insurance premium cost for the two children of $65 per week and a net work-
related child care expense of $230 per week. Originally, the line six percentage
share of income in 2010 (now designated as line seven on the worksheet) was
37% for plaintiff and 63% for defendant. There was no provision for life
insurance in the PSA to secure the parties' child support obligation for their
children.
On July 2, 2015, the parties signed a second consent order "resolving
issues of child support and unreimbursed expenses." The second consent order
reduced defendant's weekly child support obligation from $334 to $295, plus
arrearages of $150 per month, until paid in full. Attached to the July 2, 2015
consent order was a child support guidelines–sole parenting worksheet.
Plaintiff's imputed income remained at $32,000 per year or approximately $615
per week, whereas defendant's income was listed as $2,800 per week, which
equates to $145,600 per year. The line seven ratio changed to 23% plaintiff and
77% defendant. No net work-related child care expense was included. Plaintiff
added the parties' children to her new husband's health insurance plan thereby
eliminating defendant's health insurance premium costs for the children.
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On April 6, 2016, defendant started an S corporation known as Garden
State Information Management, LLC (GSIM). He is the sole owner and
employee. GSIM is in the business of outsourcing IT manager roles, help desks,
web hosting, email hosting, office construction consulting, video, IP phone and
wireless services. GSIM invoices clients for its services and payments are made
to the corporation. From 2016 until approximately the first half of calendar year
2019, defendant paid himself by "taking distributions" as the owner of GSIM .2
Beginning in August 2019, defendant converted to a W-2 employee status based
on his accountant's advice.
In December 2019, defendant filed a notice of motion in aid of litigant's
rights based on plaintiff's refusal to produce their children for his parenting time
and other relief. In response, plaintiff filed a notice of cross-motion seeking a
recalculation of child support and a modification of the parties' contributions
towards the line seven unreimbursed medical expenses. Specifically, plaintiff
sought a recalculation of child support to include the Other Dependent
Deduction (ODD) in light of the birth of her two other children and work-related
2
The distributions were as follows:
2017 - $139,597
2018 - $165,733
2019 - $118,000 plus W-2 income of $34,800
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child care expenses, even though she is not employed pursuant to Appendix IX-
A, guideline twelve.
On January 24, 2020, a Family Part judge issued an initial order directing
the parties to comply with their existing consent order regarding defendant's
parenting time, with a one-time exception on January 26, 2020. Following oral
arguments of the parties, the judge issued a supplemental order on the motion
and cross-motion on February 13, 2020, addressing the remaining issues.
Relevant to the matter under review, paragraph sixteen of the February 13, 2020
order directed "the parties to submit financial documentation to the court" for
the purpose of recalculating child support by a child support hearing officer.
In compliance with the order, defendant submitted: (1) GSIM's 2017
corporate tax return representing $151,522 of his gross income, $139,934 of net
income, and $139,597 of profit distributions; (2) GSIM's corporate tax return
from 2018 reflecting $184,615 of gross income, $170,128 of net income, and
profit distributions of $165,733; (3) an accounting spreadsheet for January
through July 2019 showing $118,000 in profit distributions; and (4) a 2019 W-2
form for himself covering the period from August 2019 to December 31, 2019,
indicating $34,800 in wages.
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On April 3, 2020, another Family Part judge conducted oral argument on
the issue of recalculating child support because proceedings typically handled
by child support hearing officers were cancelled due to the COVID-19
pandemic. Counsel for plaintiff argued that M.T. "can essentially watch herself
after school," but Ma.T. needs "before and after care." The cost at the YMCA
for before and after care for Ma.T. is $456 per month. Defendant disputed that
Ma.T. needed before and after care. After hearing arguments from counsel for
both parties, the judge reserved decision. On April 7, 2020, the judge issued an
order and a statement of reasons.
The judge noted in his decision that "[p]er the parties' agreement stated on
the record during oral argument, [defendant]'s income is $140,421.83 [per] year
for the purposes of child support recalculation." In addition, the parties agreed
to the amounts defendant contributes to his medical expenses and mandatory
union dues. The judge rejected plaintiff's argument that defendant is concealing
income in his solely owned company. According to the judge, defendant "works
primarily from home" and therefore, he "may still incur work-related expenses,"
such as travel, purchasing equipment, and additional utility expenses.
Regarding the S corporation designation, the judge highlighted that such
an entity is "entitled to deduct ordinary and necessary expenses under the tax
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code." The judge concluded defendant's deductions were "reasonable and
ordinary" and "[p]laintiff failed to establish that leaving a certain amount of
funds [($15,000)] in the company after receiving wages and distribution
necessarily equates to concealment of income."
In addressing imputation of income to plaintiff, the judge noted her
request to be imputed $32,000 per year as a cosmetologist, the same imputation
that was utilized over ten years ago for her in the PSA. On the other hand,
defendant sought to have plaintiff imputed the sum of $39,780 per year as an
"experienced receptionist" based upon a prior similar job she had in 2011. In
rejecting both parties' positions, the judge determined that plaintiff should be
imputed income as an "experienced child care worker" at the rate of $32,790 per
year, based upon the current New York Labor Wage Compendium. The judge
"considered plaintiff's argument that she spends most of her time caring for her
children and home" in making his decision. "Three equitable considerations"
were factored into the judge's decision:
(1) imputing income as an experienced child care
worker reduced the amount plaintiff needed for child
care needs;
(2) this imputed income reflected "the activities in
which plaintiff is presently engaged"; and
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(3) it satisfied the court's need to impute income to
plaintiff "who is voluntarily unemployed."
The judge pointed out that after comparing the guidelines worksheet
calculations, "the difference between plaintiff's income imputed as $39,780 or
$32,790 is $4 per week." The new child support amount defendant was ordered
to pay is $307 per week retroactive to December 23, 2019, the filing date of
plaintiff's motion. The judge ordered the percentage share of the children's
unreimbursed medical expenses would continue as the parties agreed in their
PSA—37% to be paid by plaintiff and 63% to be paid by defendant. According
to the revised guidelines worksheet, the line seven ratio was 19% for plaintiff
and 81% for defendant. A Uniform Support Order was entered with the judge's
statement of reasons and the guidelines attached. No counsel fees were awarded.
On April 27, 2020, plaintiff filed a motion for reconsideration. In her
moving certification, plaintiff detailed the errors she believed the judge made in
calculating the guidelines child support amount. She also requested defendant
be directed to maintain life insurance "in an amount that covers his current child
support obligation" plus four years of college. Plaintiff asked to be named as
trustee and custodian of the life insurance policy, and the children be designated
as co-equal beneficiaries. On May 6, 2020, defendant filed a notice of cross-
motion opposing reconsideration and seeking counsel fees for defending
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plaintiff's motion and filing his cross-motion. On May 22, 2020, the judge
denied both motions and issued a statement of reasons pursuant to Rules 1:6-
2(f) and 1:7-4.
After reciting the standards to be analyzed in addressing a reconsideration
motion, the judge denied plaintiff's motion insofar as she requested a
recalculation of defendant's child support obligation, noting her arguments were
"mere recitations" of her prior arguments. And, the judge explained that even if
plaintiff's income was imputed as a hairdresser,3 without including child care
costs, "the child support amount would still be $307 [per] week."
As to life insurance, the judge ordered defendant to increase his policy
from $50,000 4 to $125,000 to secure child support and college payments in case
of his premature death under N.J.S.A. 2A:34-23. The judge denied defendant's
cross-motion seeking counsel fees after considering Rule 4:42-9 subsections (b)
to (d), N.J.S.A. 2A:34-23, and RPC 1.5(a). A memorializing order was entered.
II.
On appeal, plaintiff contends the judge committed harmful error by:
3
We assume the judge meant to say "cosmetologist" and not "hairdresser."
4
The record does not state when defendant obtained the $50,000 life insurance
policy.
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(1) incorrectly calculating defendant's child support
obligation under the guidelines; improperly imputing
income to plaintiff inconsistent with her work history
and experience; and failing to impute child care costs
despite being imputed with full-time employment;
(2) denying plaintiff's request to modify the parties'
respective share of the children's unreimbursed medical
expenses; and
(3) setting defendant's obligation to maintain life
insurance based on an incorrect child support amount.
Our review of a Family Part judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts' special
jurisdiction and expertise in family matters, [we] should accord deference to
family court factfinding." Id. at 413. Thus, we will not "engage in an
independent assessment of the evidence as if [we] were the court of first
instance." N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 433
(App. Div. 2002) (alteration in original) (quoting State v. Locurto, 157 N.J. 463,
471 (1999)).
We will "not disturb the 'factual findings and legal conclusions of the trial
judge unless [we are] convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova Farms
Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). With regard to
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questions of law, a trial judge's findings "are not entitled to that same degree of
deference if they are based upon a misunderstanding of the applicable legal
principles." Z.P.R., 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
"Consequently, when [we] conclude[] there is satisfactory evidentiary
support for the trial court's findings, '[our] task is complete and [we] should not
disturb the result . . . .'" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div.
2015) (fifth alteration in original) (quoting Beck v. Beck, 86 N.J. 480, 496
(1981)). "Deference is appropriately accorded to factfinding; however, the trial
judge's legal conclusions, and the application of those conclusions to the facts,
are subject to our plenary review." Ibid. (quoting Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013)). "[L]egal conclusions are always reviewed de
novo." Id. at 433-34 (citing Manalapan, 140 N.J. at 378).
Harmful error is tested by the standard set forth in Rule 2:10-2. That is,
whether the error is "clearly capable of producing an unjust result." R. 2:10-2.
The harmful error rule is used when a specified error was brought to the trial
judge's attention. See State v. G.E.P., 243 N.J. 362, 389 (2020); State v.
Mohammed, 226 N.J. 71, 86 (2016). Thus, even though an alleged error was
brought to the trial judge's attention, it will not be ground for reversal if it was
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"harmless error." See Willner v. Vertical Reality, Inc., 235 N.J. 65, 79 (2018);
State v. J.R., 227 N.J. 393, 417 (2017); State v. Macon, 57 N.J. 325, 338 (1971).
"The proper and rational standard is not perfection; as devised and administered
by imperfect humans, no trial can ever be entirely free of even the smallest
defect. Our goal, nonetheless, must always be fairness. 'A defendant is entitled
to a fair trial but not a perfect one.'" State v. R.B., 183 N.J. 308, 333-34 (2005)
(quoting Lutwak v. U.S., 344 U.S. 604, 619 (1953)).
"When reviewing decisions granting or denying applications to modify
child support, we examine whether, given the facts, the trial judge abused his or
her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v.
Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial court's '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.'" Ibid.(quoting Jacoby, 427 N.J. Super. at 116).
We may thus reverse a trial court's decision when it "is 'made without a
rational explanation, inexplicably depart[s] from established policies, or rest[s]
on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d
1260, 1265 (7th Cir. 1985)). Moreover, we are not bound by "[a] trial court's
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interpretation of the law" and do not defer to legal consequences drawn from
established facts. Manalapan, 140 N.J. at 378 (citations omitted).
New Jersey courts have long recognized that "[t]he duty of parents to
provide for the maintenance of their children is a principle of natural law."
Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004) (quoting Greenspan
v. Slate, 12 N.J. 426, 430 (1953)). Thus, children "have the right to support
from their parents[,]" Connell v. Connell, 313 N.J. Super. 426, 430 (App. Div.
1998), and parents are "obliged to contribute to the basic support needs of an
unemancipated child to the extent of the parent's financial ability," Burns, 367
N.J. Super. at 39 (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App.
Div. 1993)). Each parent must share the cost and shoulder the responsibility of
contributing to the children's basic needs, despite a parent's fractured
relationship with their children. Pascale v. Pascale, 140 N.J. 583, 591 (1995).
In that sense, child support awards are unrelated and unconnected to any
interference with the rights of custody and visitation by the other parent. Id. at
592 (citing Ross v. McNasby, 259 N.J. Super. 410, 414 (App. Div. 1992)).
The right to support should "accord with the current standard of living of
both parents which may" include "non-essential items that are reasonable and in
the child's best interest." Isaacson v. Isaacson, 348 N.J. Super. 560, 582 (App.
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Div. 2002) (first quoting Zazzo v. Zazzo, 245 N.J Super. 124, 130 (App. Div.
1990); and then citing Dunne v. Dunne, 209 N.J. Super. 559, 567-68 (App. Div.
1986)). Children are not only entitled to bare necessities, but the benefit of their
parents' financial achievements. Id. at 580 (citing Dunne, 209 N.J. Super. at
567). The foundation of these support principles is "the best interest of the
children." Caplan v. Caplan, 182 N.J. 250, 272 (2005).
In establishing or modifying a child support award, courts must rely on
articulated guidelines. R. 5:6A. The guidelines "attempt to simulate the
percentage of parental net income that is spent on children in intact families" to
award support in an appropriate amount. Caplan, 182 N.J. at 264. Net income
includes a person's "gross income minus income taxes, mandatory union dues,
mandatory retirement, previously ordered child support orders, and . . .
theoretical child support obligation[s] for other dependents." Ibid. (quoting
Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,
Appendix IX-A to R. 5:6A (2022)).5 Gross income is "all earned and unearned
income that is recurring or will increase the income available to the recipient
5
In 2005, Caplan cited the then-most recent edition of Child Support
Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to
R. 5:6A (2005). The 2022 version is identical in parts relevant to this opinion.
Thus, for the court's convenience, all citations to Appendices IX-A and IX-B to
R. 5:6A refer to the current 2022 edition.
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over an extended period of time." Id. at 265 (quoting Pressler & Verniero,
Appendix IX-B to R. 5:6A (2022)).
Turning to plaintiff's first argument, she contends the judge abused his
discretion by failing to consider defendant's income as a self-employed
individual instead of a wage earner. Plaintiff also asserts that defendant
misrepresented his income and expenses in order to reduce his child support
obligation. We reject plaintiff's arguments.
The judge held a hearing to recalculate defendant's child support
obligation. In his decision, the judge thoroughly considered the documentary
evidence, including defendant's current case information statement (CIS). 6
Since the hearing occurred prior to June 20, 2020, the judge properly relied on
defendant's financial information from calendar year 2019, 7 which was
6
Rule 5.5-4(a)(4) states, "[T]he movant shall append copies of the movant's
current [CIS] and the movant's [CIS] previously executed or filed in connection
with the order, judgment[,] or agreement sought to be modified." The record
does not contain defendant's prior CIS's.
7
The guidelines state that if the court calculates gross income before June 30
of the hearing's year, "use Federal and State income tax returns, W-2
statement(s) and IRS 1099's from the preceding year. If tax documentation is
unavailable, use any other available evidence of current earnings (e.g., . . . for
the self-employed, statements of business receipts and expenses)." Pressler &
Verniero, Appendix IX-B to R. 5:6A (2022). The guidelines emphasize the
court should use this method "when possible," and continue to note that in the
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available. Defendant's 2019 tax returns had not yet been filed. However, as
instructed by the guidelines, defendant submitted his 2019 profit distribution
data covering the period from January through July 2019 and his W-2 statement
from August to December 2019. In addition, defendant produced his 2017 and
2018 tax returns.
The judge averaged defendant's income based upon this information and
determined his income is $152,723.33 per year or $2,937 per week. While
plaintiff correctly points out that "W-2 wages and distributions are not used in
the calculation of self-employment income," under Appendix IX-B, the judge
retains the discretion to employ his or her chosen method if good cause is found
to disregard the guidelines. R. 5:6A. Moreover, the trial court decides whether
or not good cause exists. Pressler & Verniero, Appendix IX-A to R. 5:6A
(2022).
Applying these principles, we discern no basis to intervene. The judge
based defendant's income on an average of his prior 2017 and 2018 distributions
and 2019 W-2 income because the 2019 tax return had not yet been prepared.
event "[t]he review of a paystub, W-2 form, IRS-1099 form or tax return [does]
not provide all necessary income information for a parent[,] [t]he accurate
determination of income may be dependent on a combination of these documents
and testimony." Ibid.A-3714-19
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We discern no abuse of discretion in employing this methodology. See, e.g.,
Elrom, 439 N.J. Super. at 438 (discerning "no abuse of discretion in using a
three-year average of defendant's earnings from all sources" and concluding this
"a fair and reasonable methodology" to determine income based on credible
evidence.) Therefore, we reject plaintiff's argument that defendant is hiding
income and disguising personal expenses as business expenses.
Likewise, the judge aptly found that S corporations—such as GSIM—are
entitled to certain deductions under the tax code. "An S corporation is a pass -
through entity." Cohen v. N.J. Div. of Tax'n, 28 N.J. Tax 548, 550-51 (App.
Div. 2015) (citing Sidman v. Dir., Div. of Tax'n 19 N.J. Tax 484, 492 (2001)).
Federal law does not tax S corporations at the corporate level. Id. at 551 (citing
I.R.C. § 1366(f)(2)). Instead, losses and income are passed through individual
shareholders to avoid double taxation. Ibid. (citing I.R.C. § 1366(f)(2)). New
Jersey recognizes S corporations but deviates from federal law in certain ways,
such as taxing at the corporate level at a reduced rate. Ibid. All S corporation's
ordinary and necessary expenses are deductible when paid or incurred during
the taxable year. I.R.C. § 162(a).
Here, the judge found defendant incurred work-related expenses by using
his home essentially as his office, and related business expenses, such as
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traveling. In his decision, the judge determined it was within defendant's
"business judgment" as GSIM's owner to handle the funds as he chooses without
scrutiny. The judge was correct in his analysis. Moreover, the record is devoid
of any evidence that defendant is inappropriately retaining cash in his business.
III.
Plaintiff also urges error in the judge's imputation of income to her as an
experienced child care worker. A trial judge has the discretion to impute
income, but only after first finding "that a party . . . is voluntarily unemployed
or underemployed." Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div.
2001) (citing Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998));
Caplan, 182 N.J. at 268. In fact, "[s]uch a finding is requisite, before
considering imputation of income." Dorfman, 315 N.J. Super. at 516 (citations
omitted). Here, the judge determined plaintiff voluntarily chose to stay home
and care for her children, and it was appropriate to impute income to her.
Plaintiff does not dispute this.
"Imputation of income is a discretionary matter not capable of precise or
exact determination but rather requiring a trial judge to realistically appraise
capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464,
474 (App. Div. 2004). On appeal, a trial judge's imputation of a specific amount
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of income "will not be overturned unless the underlying findings are inconsistent
with or unsupported by competent evidence." Id. at 474-75 (citations omitted).
There are no bright-line rules that govern the imputation of income. See Id. at
474; see also Caplan, 182 N.J. at 270 (reviewing the factors the trial court should
consider when "determin[ing] the reasonable amount of income to be imputed
to that party."). Against these standards, we are constrained to reverse and
remand to the Family Part judge for reconsideration of the amount of income
plaintiff should be imputed with.
As previously stated, the PSA imputed plaintiff with a $32,000 income as
a cosmetologist. Licensed in cosmetology since 1999, she worked at various
salons in this State through 2011 before working as a receptionist in a medical
office until 2014. Since that time, plaintiff has "been a stay-at-home parent."
Notably, in 2015 when child support was recalculated, plaintiff was imputed
with the same income of $32,000 per year.
Appendix IX-A, paragraph twelve, of the child support guidelines sets
forth the considerations to be analyzed when imputing income to parents. In
relevant part,
The fairness of a child support award resulting from the
application of these guidelines is dependent on the
accurate determination of a parent's net income. If the
court finds that either parent is, without just cause,
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voluntarily underemployed or unemployed, it shall
impute income to that parent according to the following
priorities:
a. impute income based on potential
employment and earning capacity using the
parent's work history, occupational
qualifications, educational background,
and prevailing job opportunities in the
region. The court may impute income
based on the parent's former income at that
person's usual or former occupation or the
average earnings for that occupation as
reported by the New Jersey Department of
Labor (NJDOL);
b. if potential earnings cannot be
determined, impute income based on the
parent's most recent wage or benefit record
(a minimum of two calendar quarters) on
file with the NJDOL (note: NJDOL records
include wage and benefit income only and,
thus, may differ from the parent's actual
income); or
c. if a NJDOL wage or benefit record is not
available, impute income based on the full-
time employment ([forty] hours) at the
prevailing New Jersey minimum wage.
In determining whether income should be imputed to a
parent and the amount of such income, the court should
consider: (1) what the employment status and earning
capacity of that parent would have been if the family
had remained intact or would have formed, (2) the
reason and intent for the voluntary underemployment
or unemployment, (3) the availability of other assets
that may be used to pay support, and (4) the ages of any
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children in the parent's household and child-care
alternatives. The determination of imputed income
shall not be based on the gender or custodial position of
the parent.
In his decision, the judge imputed plaintiff with an income of $32,790.
Although recognizing plaintiff does not possess any certifications or experience
in professional child care, the judge reasoned that she had the qualifications and
experience as a voluntarily unemployed individual who has been taking care of
her children full time for several years already. Caplan, 182 N.J. at 265 (citing
Pressler & Verniero, Appendix IX-A to R. 5:6A (2022)). Also, considering
plaintiff lives in Goshen, the judge determined $32,970 was the appropriate
amount based on "the most current [New York] Labor Wage Compendium." See
Caplan, 182 N.J. at 265 (citing Pressler & Verniero, Appendix IX-A to R. 5:6A
(2022)).
As we underscored in Storey, there are no bright-line rules that govern the
imputation of income. Id. at 474; see Caplan, 182 N.J. at 270. However,
Appendix IX-A provides the basis for imputation of income in accordance with
the party's usual or former occupation. Caplan, 182 N.J. at 265. Since the record
is devoid of any evidence that plaintiff was previously employed as a child care
worker, we reverse and remand for the judge to reconsider appropriate
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imputation of income for her based upon her employment history in conjunction
with Appendix IX-A, paragraph twelve considerations.
Plaintiff next challenges the judge's decision not to impute child care costs
to her while simultaneously imputing full-time income to her. "When imputing
income to a parent who is caring for young children, the parent's income share
of [child care] costs necessary to allow that person to work outside the home
shall be deducted from the imputed income." Pressler & Verniero, Appendix
IX-A to R. 5:6A (2022) (emphasis added). Here, the judge emphasized in his
May 22, 2020 order that he "declined to impute child care costs because plaintiff
never incurred such costs," but never specified why he was deviating from the
guidelines.
Plaintiff asserts that, although she "is a stay-at-home parent and does not
earn income," she "cannot be expected to work full-time while also caring for
her children-full time." Here, plaintiff did not seek child care costs for Ma.T.
for the period of her unemployment but she seeks an allocation of child care
costs against the full-time income the judge imputed to her. The judge erred in
not considering the imputed child care expense for Ma.T. under Appendix IX-
A. In the remand hearing, the judge should consider work-related child care
expenses plaintiff would incur for Ma.T..
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Next, plaintiff argues the judge erred by denying her request to modify the
parties' respective share of the children's unreimbursed medical expenses. The
judge found no reason to modify the percentages agreed to by the parties in their
PSA "particularly without defendant's express consent." Plaintiff further
contends defendant's increased income since their JOD was entered constitutes
a changed circumstance that warrants the division of the unreimbursed medical
expenses be updated to reflect the current line seven of the guidelines worksheet.
Paragraph three of the PSA provides:
[Plaintiff] shall be solely responsible for the first
$250.00 per calendar year of unreimbursed medical,
dental and prescription needs of each [c]hild.
[Defendant] shall be responsible to provide for the
benefit of the [c]hildren, medical insurance, together
with major medical insurance coverage, for so long as
[defendant] receives such insurance as a benefit of his
employment. [Defendant] and [plaintiff] shall be
responsible for the [c]hildren['s] unreimbursed
medical, dental and prescription needs in excess of
$250.00 per calendar year, per [c]hild, in proportions
allocated according to the attached [c]hild [s]upport
[g]uidelines [w]orksheet: [plaintiff] 37% and
[defendant] 63%.
Child support orders are always subject to review and modification upon
a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980).
Upon a motion to modify an order, "the moving party has the burden to make a
prima facie showing of [the] changed circumstances warranting relief."
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Isaacson, 348 N.J. Super. at 579. Changed circumstances may "include 'an
increase in the cost of living, an increase or decrease in the income of the
supporting or supported spouse, cohabitation of the dependent spouse, illness or
disability arising after the entry of the judgment, and changes in federal tax
law.'" Quinn v. Quinn, 225 N.J. 34, 49 (App. Div. 2016) (quoting J.B. v. W.B.,
215 N.J. 305, 327 (2013)).
It is within the trial court's discretion to modify a marital agreement, like
a PSA, when the moving party can show a changed circumstance warrants relief.
Quinn, 225 N.J. at 49; Isaacson, 348 N.J. Super. at 579. "Absent 'compelling
reasons to depart from the clear, unambiguous, and mutually understoo d terms
of the PSA,' a court is generally bound to enforce the terms of a PSA." Avelino-
Catabran v. Catabran, 445 N.J. Super. 574, 589 (2016) (quoting Quinn, 225 N.J.
at 55) (finding no changed circumstances requiring modification of the parents'
college-cost responsibilities under the PSA). If the PSA that addresses disputed
matters in a post-judgment matrimonial motion is equitable and fair, "courts will
not 'unnecessarily or lightly disturb[]' the agreement." Ibid. (alteration in
original) (quoting Quinn, 225 N.J. at 44). This falls in line "with New Jersey's
'strong public policy favoring stability of arrangements in matrimonial matters.'"
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Ibid. (quoting Quinn, 225 N.J. at 44); Massar v. Massar, 279 N.J. Super 89, 93
(App. Div. 1995).
However, a court is free to alter a PSA if changed circumstances render
strict enforcement of the terms inequitable. Id. at 590 (citing Quinn, 255 N.J. at
54-55; Lepis, 83 N.J. at 146-148). A PSA entered into by informed and legally
represented parties without evidence of "overreaching, fraud, or coercion"
obliges a court to enforce its term. Ibid. (quoting Quinn, 225 N.J. at 55). Should
unanticipated changed circumstances or inequity not addressed in the PSA arise,
the court will deviate from the strict enforcement. Ibid.
Since plaintiff moved for the modification under review, she bears the
burden of proving defendant's income increase caused an inequity unanticipated
by the PSA. Isaacson, 348 N.J. Super. at 579; Avelino-Catabran, 445 N.J. Super.
at 589. Specifically, she claims that defendant's increased income from $60,000
in 2010 as stated in the PSA to $152,723 represents an eighty-five percent of the
parties' combined incomes. The judge noted that "[n]either party provided any
reason to modify the PSA, such as duress or fraud." See Avelino-Catabran, 445
N.J. Super. at 589-590. On this point, we agree with plaintiff.
Our interpretation of paragraph three is de novo. That provision provided
plaintiff would be responsible for 37% of the children's unreimbursed medical,
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dental, and prescription needs in excess of $250 per calendar year, predicated
on line six (now line seven) of the guidelines worksheet prepared at the time the
JOD was entered. Nowhere in the PSA or record does it state the parties agreed
the line seven ratio of incomes would remain constant in future child support
calculations or awards. Indeed, the purpose of the line seven allocation ratio is
to reflect the newly calculated child support amount and for the parents or
guardians to share unreimbursed medical expenses in proportion to their
currently earned or imputed incomes in a fluid fashion. Therefore, on remand,
we direct the judge to utilize the line seven ratio percentages after the child
support guidelines are revised and not the percentages set forth in the PSA.
Plaintiff also challenges the $125,000 life insurance policy ordered by the
judge was insufficient and based upon an erroneously calculated child su pport
obligation of $307 per week. The judge found the children needed "more
financial protection" than the $50,000 life insurance defendant had in place.
N.J.S.A. 2A:34-23 permits the court to require a child support obligor to
secure his or her obligation for the continued payment of child support. The
statute also grants this power to secure obligations "as to the care, custody,
education and maintenance of the children." Ibid. The amount of security
imposed is within the judge's discretion "as the circumstances of the parties and
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the nature of the case shall render fit, reasonable and just." Ibid.; see also
Strahan v. Strahan, 402 N.J. Super. 298, 316 (App. Div. 2008) ("If a trial court
intends to secure child support pursuant to N.J.S.A. 2A:34–23, it must do so in a
reasonable manner."). These orders for security include, but are not limited to,
the creation of trusts or life insurance policies to guarantee any reasonably
foreseeable educational expenses are paid. Ibid.Prior to the judge's decision under review, defendant maintained a $50,000
life insurance policy naming the parties' two children as beneficiaries, with
instructions to his mother on dividing the proceeds. After considering the best
interests of the children, the judge found the amount was insufficient and
instructed defendant to obtain a $125,000 policy, noting this would not pose an
undue burden. And, defendant did not object to the increased amount.
On appeal, plaintiff asserts the $125,000 life insurance amount is too low
and was improperly calculated based on the erroneously determined $307
weekly child support obligation. After our careful review of the record, we
discern no abuse of discretion, and plaintiff provides no evidence of error.
Underpinning the life insurance determination here was the judge's finding that
defendant's average earned income was $152,723 per year. The judge's decision
comports with N.J.S.A. 2A:34-23, and we see no basis to disturb it.
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IV.
Reconsideration is only available when "either (1) 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
Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)).
We review a trial court's decision on a motion for reconsideration under
an abuse of discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 389
(App. Div. 1996). Thus, "a trial court's reconsideration decision will be left
undisturbed unless it represents a clear abuse of discretion." Pitney Bowes
Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.
2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). A
court abuses its discretion "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Ibid. (quoting Flagg, 171 N.J. at 571). Here, in light of
our decision, we need not address the judge's decision on reconsideration other
than what we have already stated.
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Plaintiff's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part; reversed, vacated, and remanded in part for further
proceedings consistent with this opinion. We do not retain jurisdiction.
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