Susan Marie Harte v. David Richard Hand

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5430-11T4
A-5431-11T4
SUSAN MARIE HARTE,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. December 18, 2013
DAVID RICHARD HAND, APPELLATE DIVISION
Defendant-Appellant.
_________________________________
T.B.1,
Plaintiff-Respondent,
v.
DAVID RICHARD HAND,
Defendant-Appellant.
________________________________
Argued Telephonically November 7, 2013 –
Decided December 18, 2013
Before Judges Espinosa, Koblitz and
O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket Nos. FM-01-112-09 and FV-01-
755-99.
1
We use initials for this plaintiff because the child support
order emanated from a domestic violence matter.
Andrew L. Rochester argued the cause for
appellant (Morgenstern & Rochester,
attorneys; Mr. Rochester, on the briefs).
Julie Davis Lisa argued the cause for
respondent Susan Marie Harte.
T.B., respondent, argued the cause pro se.
The opinion of the court was delivered by
KOBLITZ, J.A.D.
This appeal raises the issue of how to properly calculate
child support for multiple families. Defendant David Richard
Hand appeals from two separate child support orders entered on
November 7, 2011, and orders denying reconsideration entered on
May 25, 2012. He also appeals from a June 25, 2012 order
granting plaintiff Susan Marie Harte $600 in counsel fees. The
orders regarding support were entered on the same date by the
same motion judge and the issues stemming from those orders in
the two appeals are identical. We resolve both appeals in this
decision, reversing and remanding only for a recalculation of
support that takes into account defendant's financial
obligations towards all three of his children. We affirm the
counsel fee award to Harte. We also affirm the determination
that defendant's vocational report represented a net opinion and
therefore did not demonstrate a prima facie case of changed
circumstances requiring further discovery.
2 A-5430-11T4
Defendant has three children, each of whom has a different
mother. Defendant's oldest son lives with defendant and his
current wife. This child's mother lives in Florida and does not
contribute to his support. Defendant's younger son lives with
his mother, plaintiff T.B. His youngest child, a girl, lives
with defendant's former wife, Harte. Defendant was employed as
a concrete layer and finisher before he was seriously injured in
a 2003 garage collapse at the Tropicana Casino Hotel in Atlantic
City. As a result of this injury, he received a settlement of
$1.2 million in 2007. He claims to have netted $533,822 after
paying several "obligations." At the time of his personal
injury settlement, defendant was married to Harte and paying
child support to T.B.
After the settlement, defendant agreed to an imputation of
$57,200 in annual income when recalculating child support for
T.B.2 Harte and defendant were divorced in 2008 and defendant
again consented to an imputation of $57,200 in annual income as
part of their January 2009 final judgment of divorce. In 2011,
after a history of enforcement motions by both plaintiffs,
defendant unsuccessfully moved to reduce child support for both
children, claiming he was unable to obtain through wages and
2
According to the motion judge's opinion, $57,200, or $1,100 per
week, was originally derived from a 5% return on defendant's
settlement proceeds with no consideration of any earned income.
3 A-5430-11T4
investments the agreed-upon imputed income. The motion judge
denied his application, but suggested that if he presented a
vocational expert who could demonstrate his lack of ability to
earn the imputed income, the judge would consider his
application again.
Defendant, representing himself for his re-application,
moved again to reduce his support, this time supplying the judge
with a vocational expert's report that had been prepared prior
to his previous motion, but not provided by his counsel to the
judge. Defendant stated on the record at oral argument that his
wife supported him.
Robert P. Wolf, Ed.D., M.B.A., completed a vocational
report for defendant purporting to determine defendant's
employability and earning potential. The three-page report
summarized defendant's work history since the 2003 accident,
noting that between 2005 and 2010 defendant worked in the
construction industry for two years, but "could not continue due
to injury-related impairments." During this five-year period,
he was otherwise jobless. Defendant most recently worked as a
clerk in the parts and sales department of a local Nissan
dealership, but was terminated in December 2011. The report
stated that defendant completed a tractor-trailer driver
training class thereby obtaining a "Class A" commercial driver's
4 A-5430-11T4
license and was seeking employment as a local short-haul truck
driver, which would pay an average annual salary of $36,514.
Wolf stated that defendant refused to seek work as a more
lucrative long-distance "over the road" driver because of the
potentially negative impact on his "child rearing
responsibilities." Wolf concluded that $36,514 was therefore
defendant's "probable income" within a "reasonable degree of
vocational-economic certainty." Wolf based this projected
imputed income on defendant's work history, a summary of his
medical and mental condition, some medical reports and salary
estimates from the 2010-2011 edition of the Occupational Outlook
Handbook published by the United States Department of Labor
Bureau of Labor Statistics. See
http://www.bls.gov/ooh/transportation-and-material-moving/heavy-
and-tractor-trailer-truck-drivers.htm (last visited December 2,
2013). Wolf relied on defendant's expressed desire to be a
truck driver, although defendant stated at oral argument that
his driver's license was suspended.
We should not disturb the trial court's findings unless the
record does not support the determination with substantial,
credible evidence. Rova Farms Resort, Inc. v. Investors Ins.
Co., 65 N.J. 474, 483-84 (1974). Appellate courts accord
particular deference to the Family Part because of its "special
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jurisdiction and expertise" in family matters. Cesare v.
Cesare, 154 N.J. 394, 412 (1998).
I
The judge calculated child support for the two children not
living with defendant based on the individual financial
circumstances of the mothers as provided in the Child Support
Guidelines. R. 5:6A. In both calculations, the judge entered
the undisputed dependent deduction of $177 for the child living
with defendant on line 2(d). She determined that it would be
unfair to the mothers to designate either order as the initial
order, thereby deducting that amount from defendant's available
income when calculating the support order for the other child.
The judge therefore calculated both support obligations using
defendant's imputed annual income of $57,200 as if the only
other child defendant supported was the oldest son living with
him.
We do not approve the child support calculation method
utilized by the motion judge. Equality in treatment for the
mothers should not be obtained by requiring the father to pay an
inappropriately high level of support for both children.
According to Rule 5:6A, the Child Support Guidelines "shall be
applied" when a court is calculating or modifying child support.
The "guidelines may be modified or disregarded by the court only
6 A-5430-11T4
where good cause is shown. . . ." Ibid. Although we agree with
the judge's concern that the two mothers should not be treated
unequally, we do not approve of the method used to achieve
equality.
The Guidelines require the court to consider multiple
family obligations to obtain an equitable resolution that does
not favor any family. Pressler & Verniero, Current N.J. Court
Rules, comment 10 on Appendix IX-A to R. 5:6A at 2587-88 (2014).
The Guidelines also anticipate an adjustment when an obligor
must support more than one family. Pressler & Verniero, supra,
comment 21 on Appendix IX-A at 2599. Pursuant to the
Guidelines, prior child support orders must be deducted from an
obligor's weekly income because such an obligation "represents
income that is not available for determining the current child
support obligation . . . ." Thus, "the amount of such orders
must be deducted from the obligor's total weekly Adjusted Gross
Taxable Income." Pressler & Verniero, supra, Appendix IX-B at
2612. By leaving line 2(b) blank on both the Harte and T.B.
worksheets, the judge misapplied the Guidelines. Pressler &
Verniero, supra, Appendix IX-B at 2612; see Schwarz v. Schwarz,
328 N.J. Super. 275, 285 (App. Div. 2000) (explaining that the
trial court erred by failing to calculate and apply an obligor's
7 A-5430-11T4
other dependent deductions or to explain on the record why these
deductions were not applicable).
A later-born child should not be penalized by reducing the
obligor's available income by the prior child support
obligation. To achieve parity among the children of defendant,
we suggest the use of the "prior order" adjustment under the
child support guidelines must be modified. For example, here,
Guidelines support should be calculated for Harte,3 first
considering her child as having the prior order and listing
T.B.'s child as the recipient of the second order; then flipping
these positions so the T.B. child is considered the first order
and Harte's child considered the recipient of the second
order. Similar calculations would be performed in T.B.'s
matter, first considering her order as the first entered, then
as the second entered. In each calculation, the party receiving
the "second" order would have the amount calculated for the
"first" order entered on line 2(b) of the worksheet. Then,
after the four calculations are prepared, all including
defendant's oldest child as another dependent deduction of $177
on line 2(d), the two resulting T.B. worksheet obligations,
3
Each child support worksheet should use the data for that
family. For example, Harte has $221 per week of childcare
expenses while T.B. has none (worksheet line 8) and Harte earns
significantly more money than T.B. (worksheet line 1).
8 A-5430-11T4
located at line 27, would be averaged and the two Harte
worksheet calculations averaged. Defendant would then be
ordered to pay the average of the two support calculations to
each plaintiff. This method would ensure that the children were
treated fairly regardless of birth order, while not disregarding
the father's obligation to pay for all three children. This may
well not be the only way to equitably calculate support for
multiple families, but we suggest it as one workable method of
doing so that is consistent with the Guidelines. We therefore
remand for a recalculation of support for the two families.4
Importantly, these orders were calculated in the same
county at the same time. Even when this does not occur, the
Guidelines indicate that an obligor's multiple obligations to
different families should be taken into consideration in
determining an equitable amount of support for each child. The
Guidelines state:
In some cases, one individual may be
obligated to pay child support to multiple
families. When the court adjudicates a case
involving an obligor with multiple family
obligations, it may be necessary to review
all past orders for that individual. If the
4
We note that support should be calculated using the schedule of
child support awards in effect when the motion judge calculated
support, rather than the schedule effective September 1, 2013,
because a change in the schedule is not sufficient to modify
support. Pressler & Verniero, supra, comment 23 on Appendix IX
A at 2600.
9 A-5430-11T4
court has jurisdiction over all matters, it
may either average the orders or fashion
some other equitable resolution to treat all
supported children fairly under the
guidelines.
[Pressler & Verniero, supra, comment 10 on
Appendix IX-A at 2588.]
Rule 5:2-1(a) states that venue in a family case shall be
laid in the county where the child is domiciled. However, venue
rules may be relaxed to allow child support matters to be heard
in another county to achieve an equitable result in conformity
with the goals of the Guidelines.5 With the agreement of a judge
from the other county, a judge could review a child support
order from that other county, after putting all parties involved
on notice. See R. 5:2-2 and R. 4:3-3(a). Distant parties could
appear by telephone.
II
N.J.R.E. 703 sets forth the criteria for determining
whether an expert opinion may be admitted into evidence and
requires that the expert conclusions be founded in "facts or
data" and that those facts be "reasonably relied upon by [other]
experts in the field." N.J.R.E. 703. An expert must "give the
5
See, AOC Directive #3-05 at 5 (explaining that in child support
enforcement cases where an obligor has another case in another
county, the Probation Child Support Enforcement Unit of the
county of venue should notify any other county where support
has been ordered, to "allow coordination and consolidation of
enforcement efforts, if necessary").
10 A-5430-11T4
why and wherefore" that supports his or her opinion in order for
a court to consider the expert's report. Pomerantz Paper Corp.
v. New Comm. Corp., 207 N.J. 344, 372-74 (2011) (internal
citations omitted). The opinion must be more than a "mere
conclusion." Id. at 372. The net opinion rule is succinctly
defined as "a prohibition against speculative testimony."
Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.),
certif. denied, 122 N.J. 333 (1997).
The motion judge stated that defendant's vocational
economic report was a "net opinion really based on nothing more
than accepting Mr. Hand's word that he was training as a truck
driver and going to an Occupational Outlook Handbook to find out
what that particular profession pays." The judge reasoned that
"[t]his evaluation does not provide the [c]ourt with any useful
information as to Mr. Hand's disabilities or limitations," and
"Mr. Hand has not supported his basis for a change in
circumstance based on any medical or psychological lingering
damage [from his accident.]" The judge rejected defendant's
request for a decrease in support payments because he has "not
established that his earning capacity is diminished such that he
cannot earn the $57,200 imputed to him or that he is presently
working and earning income at his maximum capacity."
11 A-5430-11T4
The judge determined that this report represented a net
opinion. Wolf relied on defendant's expressed desire to enter
the short-haul trucking field and conducted no independent
evaluation of his true earning capacity. As the conclusory
report did little to analyze defendant's true earning capacity,
the motion judge correctly refused to consider it.
III
Defendant also appeals from the award of $600 of the $2600
in counsel fees requested by Harte, the only party to have an
attorney at that time. A review of counsel fees awarded in a
matrimonial case is judged by an abuse of discretion standard.
J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012). We
affirm the modest fee assessment based on the motion judge's
thorough written opinion in which she considered all of the
relevant factors mandated by Rule 5:3-5(c). We note that bad
faith is not the sole requirement for an assessment of fees.
N.J.S.A. 2A:34-23 (noting that good or bad faith of the party is
just one of the factors a trial judge may consider when
assessing counsel fees).
Affirmed in part, reversed in part and remanded for a
recalculation of child support. We do not retain jurisdiction.
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