LISA G. STROBEL VS. ROLF STROBEL(FM-15-1200-02, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0973-15T3
LISA G. STROBEL, n/k/a
LISA G. TRAYNOR,
Plaintiff-Respondent,
v.
ROLF STROBEL,
Defendant-Appellant.
_____________________________
Submitted February 9, 2017 – Decided June 6, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FM-15-1200-02.
Law Offices of August J. Landi, attorney for
appellant (Mr. Landi, on the brief).
Law Offices of Michele C. Verno, L.L.C.,
attorney for respondent (Ms. Verno, on the
brief).
PER CURIAM
Defendant Rolf Strobel appeals from a June 19, 2015 order and
an October 2, 2015 order denying reconsideration. For the reasons
that follow, we are constrained to reverse and remand for a more
thorough review of the child support calculation.
Plaintiff, Lisa Strobel, and defendant were married in
January 1994, and had two children. In November 2002, the parties
divorced and entered into a settlement agreement incorporated into
the final judgment of divorce. According to the agreement,
defendant was to provide plaintiff with $108 per week in child
support. Plaintiff's gross weekly income was calculated at $770,
while defendant's gross weekly income was calculated at $1050.
Thereafter the weekly child support increased to $147 per week to
reflect cost of living adjustments.
On March 19, 2015, the Ocean County Board of Social Services
(OCBSS) filed a "Notice of Motion to Decrease Child Support
Payments Based Upon Triennial Review."1 Because the last child
support order had been entered almost three years prior, the order
was eligible for a triennial review pursuant to N.J.S.A. 2A:17-
56.9(a). According to a certification from an attorney for OCBSS,
under the recent child support guideline worksheet, child support
should be increased to $256 per week, a 74% increase from the
previous amount of child support. The notice of motion scheduled
1
It appears the notice of motion erroneously stated it was to
decrease child support, as the supporting documentation all
reflect the OCBSS's recommendation to increase child support.
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a hearing before a Child Support Hearing Officer on May 14, 2015.
The parties received a notice of adjournment on April 29, 2015,
advising the motion hearing had been rescheduled to May 28, 2015.
On May 11, 2015, defendant filed a cross motion opposing the
OCBSS motion made on behalf of plaintiff. Defendant requested
income be imputed to plaintiff based upon her education, prior
work history and ability to earn in accordance with New Jersey
Department of Labor Occupations Wages as a Food Services Manager
(her former position), arguing plaintiff is underemployed working
part-time as a school secretary. Defendant also requested
additional relief not relevant to this appeal. A civil action
summons for motion hearing directed the parties to appear before
a judge on June 19, 2015. The parties were advised to bring their
last three pay stubs and/or proof of other income and their most
recent federal tax return. The parties subsequently received a
letter from the OCBSS informing the office would not appear at the
June 19 motion hearing, as both parties were represented by
counsel.
At the June 19, 2015 motion hearing, defendant contested the
OCBSS calculation in its triennial review and asked the court to
impute a higher income to plaintiff. Defendant also raised for
the first time an error in the calculation of child support based
on plaintiff's receipt of a health insurance credit for the
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parties' two children because they were covered by her current
husband's health insurance. Because the latter issue was not
raised in motion papers, the court only addressed the issue of
income imputed by the OCBSS.
The court contacted Dina Johnston, OCBSS employee and the
individual who handled the triennial review, and took telephonic
testimony. Ms. Johnston explained OCBSS requested financial
statements from both parties and their employers, and such
information was entered into the financial information sheet.
Information provided by the parties was re-verified through
Employer Verification Letters, as well as through searches from
the Department of Labor. Based upon the financial information
collected, the OCBSS applied the child support guidelines. Once
the OCBSS determined the proper amount, the parties received
determination letters, which provided the child support guidelines
and offered the parties the opportunity to challenge the finding.
When a party does not consent, the OCBSS ordinarily sends the
parties Case Information Statements (CIS) to be completed, and the
OCBSS files a motion on the parties' behalf.
Ms. Johnston testified both parties filled out a CIS. Ms.
Johnston testified because defendant filed a motion seeking relief
beyond the OCBSS child support determination, the motion proceeded
to a judge. Ms. Johnston explained OCBSS imputed income to
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plaintiff at $400 per week because she was working as a school
secretary, part-time, earning approximately $10 an hour;
therefore, had the capacity to work full time so imputed on a
forty-hour workweek. The income for plaintiff was verified by her
employer.
After summarizing Ms. Johnston's testimony, the court was
satisfied with the amount of child support OCBSS calculated and
entered a final order granting OCBSS's application to increase
child support to $256 per week based on plaintiff's imputed income
of $400 per week.
Defendant moved for reconsideration of the June 19, 2015
order, which the judge denied on October 2, 2015. In a written
statement of reasons, the judge summarized Ms. Johnston's
testimony regarding calculation of the weekly child support amount
of $256. The judge considered the imputation of plaintiff's income
appropriate based upon her work history, and the fact she is
raising five school-aged children. The court did not agree
plaintiff was underemployed and found OCBSS properly imputed
plaintiff's income as a full time school secretary.
As to defendant's argument regarding the children's health
insurance premium, the court reviewed and found plaintiff's
current spouse provides insurance for all five children, including
defendant's two children. Therefore, plaintiff was entitled to a
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fifty-seven dollar credit for the cost of the parties' two
children, and when completing the Other Dependent Deduction
worksheet to account for plaintiff's support for her other three
children, plaintiff's current spouse was entitled to an eighty-
six dollar credit for their insurance costs.
Defendant argued OCBSS improperly used a sole parenting
worksheet as opposed to the shared parenting worksheet. When the
parties financial information was calculated, the program
automatically changed from the shared parenting worksheet to the
sole parenting worksheet because plaintiff's "parent of primary
residence [PPR] weekly household net income plus the shared-
parenting child support award is less than two times the U.S.
poverty guidelines for the number of persons in the household and
thus failed the PPR income test." The court ran its own child
support guidelines using the shared parenting worksheet and noted
a nineteen-dollar difference. The court found the nineteen-dollar
difference in defendant's child support obligations under the sole
parenting worksheet versus the shared parenting worksheet was
"negligible based upon the parties' financial status." Therefore,
the court denied defendant's application to vacate the June 19,
2015 order. This appeal followed.
On appeal, defendant argues the Family Part judge erred
affirming a triennial review of child support by an administrative
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clerk specialist without benefit of a review by a hearing officer
and without benefit of a CIS exchange. He also argues the judge
erred not taking testimony on the issues raised and in not creating
a record sufficient for appellate review on the merits. We agree.
"An award of support is within the discretion of the trial
court. It will not be disturbed unless it is 'manifestly
unreasonable, arbitrary, or clearly contrary to reason or to the
evidence, or the result of whim or caprice.'" Raynor v. Raynor,
319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v.
DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)). Findings by
a Family Part judge will be binding on appeal when supported by
adequate, substantial, and credible evidence. Cesare v. Cesare,
154 N.J. 394, 412 (1998). We accord deference to a Family Judge's
fact-finding. Id. at 413.
Here, although the trial judge was "satisfied" with OCBSS's
child support calculation, we are not. In particular, there is
no explanation whether the amount previously imputed to plaintiff
by agreement of $770 per week was ever considered by the OCBSS
when it conducted its review. In his statement of reasons on
reconsideration, the judge made extensive findings regarding
plaintiff's current earning capacity without benefit of a
necessary hearing on the contested issue of whether changed
circumstances warrant a modification of the agreed upon imputed
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income. See Glass v. Glass, 366 N.J. Super. 357, 373 (App. Div.
2004) (finding settlement agreements "not only resolve[] issues
of custody and visitation but financial matters including
equitable distribution and spousal and child support. No one
element stands alone and can be read without reference or
consideration of the others."); see also Lepis v. Lepis, 83 N.J.
139, 157 (1980) ("The party seeking modification has the burden
of showing such 'changed circumstances' as would warrant relief
from the support or maintenance provisions involved."). Moreover,
we direct the difference in defendant's child support obligations
under the sole parenting worksheet versus the shared parenting
worksheet must be corrected in the child support order to reflect
the accurate obligation. See Benisch v. Benisch, 347 N.J. Super.
393, 395-96 (App. Div. 2002) ("Under the [Child Support]
Guidelines, the designation of PPR and P[arent of] A[lternative]
R[esidence] is not an insignificant matter. It has tangible,
monetary effects.").
Reversed and remanded consistent with this opinion.
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