Opinion
DOCKET NO. A-3260-14T3
02-10-2017
SUSAN CORNFORD, Plaintiff-Respondent/Cross-Appellant, v. GARY P.J. CORNFORD, Defendant-Appellant/Cross-Respondent.
Gary P.J. Cornford, appellant/cross-respondent pro se. Diane Ault Cullen, attorney for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Ostrer and Leone. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-540-99. Gary P.J. Cornford, appellant/cross-respondent pro se. Diane Ault Cullen, attorney for respondent/cross-appellant. PER CURIAM
Defendant Gary P. J. Cornford appeals a February 3, 2015 order adjusting his child support obligations and awarding attorneys' fees to plaintiff Susan Cornford. We affirm.
I.
In its February 3, 2015 opinion, the trial court found the following facts. Plaintiff and defendant were married in 1985. Together they had three children: C.C. ("Carly") (born in 1992), T.C. ("Tommy") (born in 1994), and M.C. ("Molly") (born in 1995). The parties divorced on April 30, 1999. The Final Judgment of Divorce (FJOD) required defendant to pay $450 biweekly for child support, and to maintain the children as beneficiaries on his health insurance.
We use pseudonyms and initials for the children to protect their privacy.
Defendant purchased a home in New Jersey to provide a stable environment to raise the children. On June 27, 2005, the parties executed a rental agreement, whereby defendant would provide plaintiff with rent-free occupancy of the three-bedroom house for herself and the three children "in lieu of any and all child support payment obligations." Defendant made the mortgage payments, but plaintiff was responsible for utilities and most maintenance costs. This rental agreement commenced on July 1, 2005 and terminated on June 30, 2013.
The rental agreement provided, in pertinent part:
Tenant agrees that Landlord is providing Tenant with occupancy of the premises in lieu of any and all child support payment obligations. Tenant agrees that the cash equivalent of the value of the occupancy of the premises is at least equal to the full amount of any and all Court ordered child support including the full amount of current child support obligations, and any future increases in child support payment obligations. Tenant agrees that being provided with occupancy of the residence by the Landlord constitutes full payment of any and all child support obligations that are due or accrue during the period of occupancy . . . . Tenant further agrees that should any court at any time find that Landlord providing occupancy of the premises does not constitute full payment of all child support obligations, and orders that child support payments are therefore past due and/or must be paid, Tenant will immediately pay rent in the amount of $2,000 per month for the period from July 1, 2005 through the date of occupancy, and that rent accrued shall be deducted from any ordered child support payments.
In 2000, defendant moved to California, where he works as a financial consultant. From 2012 to 2014, his average gross annual income was about $231,000. Plaintiff last had full-time employment in 2011 when she worked for a bank, earning approximately $52,000 annually. In 2012, plaintiff started attending nursing school. Tommy receives Supplemental Security Income (SSI) of $435 per month.
During the time period relevant to this appeal, all of the parties' children were over eighteen but were unemancipated for the following reasons. Carly was living with defendant and attending college in Oregon. Defendant paid her tuition with no contribution from plaintiff.
Tommy was suffering from severe nonverbal infantile autism. He could not speak, dress himself, bathe himself, shave himself, wipe his bottom, clip his nails, or brush his teeth. He was experiencing shrieking and giggling fits in the middle of the night, which could sometimes last for hours. He was residing with plaintiff and needed significant day-to-day care and supervision.
Molly was attending college in New Jersey. She was living on campus but returned to plaintiff's home for holidays, a few weekends, and about half of the summer.
In 2013, plaintiff filed a Notice of Motion to compel defendant to pay for Molly's college expenses and to extend the rental agreement, which was soon to expire. Plaintiff also asked that defendant pay for Tommy's annual summer camp and a gym membership for Tommy and that their children remain on defendant's health insurance. Plaintiff also requested attorneys' fees.
Defendant filed a Notice of Cross Motion, which asked the trial court to establish his child support obligations for Tommy and Molly. A motion judge ordered the parties to continue the rental agreement pending resolution of the motions.
A four-day plenary hearing was conducted in July and August 2014. The trial court's order and opinion continued the rental agreement and required defendant to pay $117.36 per month as additional child support for Tommy and $270 per month toward Molly's ancillary expenses at college. Defendant appeals.
II.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation omitted). Because the trial court "'has the opportunity to make first-hand credibility determinations about the witnesses who appear on the stand; it has a "feel of the case" that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citation omitted).
"Appellate courts accord particular deference to the Family Part because of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, supra, 154 N.J. at 412). We reverse only if there is "'a denial of justice' because the family court's 'conclusions are . . . "clearly mistaken" or "wide of the mark."'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
In determining child support, "the trial court has substantial discretion." Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008). "'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) (citation omitted). "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."'" Id. at 326 (citation omitted). We must hew to this standard of review.
III.
A.
Defendant first challenges the trial court's extension of the rental agreement. The court determined that the parties have the financial resources to provide housing for Tommy in a single-family home, that plaintiff requires a single-family home to provide for Tommy, and that Molly deserves her own bedroom. The court found that, "[g]iven the somewhat unique circumstances that the parties find themselves in, it is reasonable, fair and just to require the parties to maintain the 'status quo' with regard to Molly's and Tommy's housing, pending a change in circumstances." The court did not abuse its discretion.
N.J.S.A. 2A:34-23 provides "the court may make such order . . . as to the care, custody, education and maintenance of the children . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." "In interpreting the purpose and breath of N.J.S.A. 2A:34-23, . . . 'the Legislature intended to invest a court with broad discretion . . . to make such orders as are "fit, reasonable and just" to protect the parties and dependent children during and after the dissolution process.'" Randazzo v. Randazzo, 184 N.J. 101, 111 (2005) (citation omitted). Indeed, "the 'overriding "purpose of [N.J.S.A. 2A:34-23] is to give a matrimonial judge broad discretion and authority to fashion sagacious remedies on a case by case basis, which will achieve justice and fulfill the needs of the litigants."'" Ibid. (alteration in original) (citation omitted).
The trial court's order extending the rental agreement was within its discretion given the "unique circumstances that the parties find themselves in." Use of the rental property in lieu of child support is the status quo for these parties — it was a compromise defendant proposed and both parties accepted.
Further, defendant offered to continue the rental agreement on multiple occasions. In defendant's Notice of Cross Motion, he did not ask for the rental agreement to be discontinued, but instead asked the trial court to "provid[e] a monthly financial credit to the Defendant in the amount of $705 per month due to the continuation of the executed rental agreement in lieu of child support." Defendant's accompanying certification included similar statements. Even in his appellate brief, he states that he "is open to an equitable agreement with plaintiff that allows plaintiff to remain in the residence as long as it remains suitable" and that "[e]very offer defendant has made to plaintiff . . . ensures plaintiff's ability to remain in the residence."
The trial court found it remains necessary for Tommy to reside with plaintiff in a single-family residence because of his shrieking and giggling fits in the middle of the night, which would disturb others if they had to relocate to an apartment building. The single-family residence provided under the rental agreement suits Tommy's special needs. The parties did not propose an alternative single-family residence for Tommy and plaintiff, and the current residence has the added benefit of providing a bedroom for Molly.
We have "acknowledged the possible continued need to maintain a local residence for a child who returns home from college during school breaks and vacations." Jacoby v. Jacoby, 427 N.J. Super. 109, 121 (App. Div. 2012).
Given that the trial court has broad discretion under N.J.S.A. 2A:34-23, it was not an abuse of discretion under the circumstances for the court to extend the rental agreement as part of its child support order. The court subtracted the $2000 rental value set in the rental agreement from the $2387.36 child support obligation it ultimately calculated, giving defendant credit for the extension of the rental agreement.
B.
In determining the housing needs of Tommy and Molly, the trial court determined the total housing cost for plaintiff, Tommy, and Molly was the $2000 rental value of the property under the rental agreement. The court then estimated that two-thirds of that cost, $1333, represented the basic housing needs for Tommy and Molly. The court similarly allocated to Tommy and Molly two-thirds of the cost of the property's gas, electric, and cable/Internet/phone charges.
Defendant argues housing costs must be determined using a marginal cost method. He cites the use of marginal cost analysis in the Child Support Guidelines. See Pressler & Verniero, Current N.J. Court Rules [hereinafter Guidelines], Appendix IX-A to R. 5:6A ¶¶ 6-7 (2017). However, the trial court based its estimate of the cost of housing not on the guidelines but on the rental value set in the rental agreement.
The rental agreement provided that the value of the occupancy of the property "constitutes full payment of any and all child support obligations," that if a court disagreed plaintiff "shall immediately pay rent in the amount of $2,000 per month" for the entire period they lived there, and that all such "rent accrued shall be deducted from any ordered child support payment." Thus, the rental agreement suggested that all of the $2000 constituted child support and thus that the value of the housing provided to Tommy and Molly was $2000. The court read the rental agreement more favorably to defendant, treating only two-thirds of $2000 as representing the reasonable housing costs of Tommy and Molly, while crediting the entire $2000 toward defendant's child support. That was not an unreasonable reading.
Defendant complains the trial court attributed only one-third of the $2000 as plaintiff's housing costs, rather than one-half. However, plaintiff was not merely a co-occupant of the house but also the primary caregiver for Tommy, who requires her constant care and supervision. Maintaining Tommy's care in the house was the primary purpose of extending the rental agreement.
In requiring a supporting parent to contribute to housing costs, a court "must determine if the primary recipient of the benefit is plaintiff or the child and whether the benefit to plaintiff is 'primary' or 'incidental.'" Loro v. Del Colliano, 354 N.J. Super. 212, 225 (App. Div.), certif. denied, 174 N.J. 544 (2002). Here, the primary benefit is to Tommy, and to a lesser extent Molly. The benefit to plaintiff is incidental. "[T]he fact that their mother may benefit incidentally from the component for which the father pays is of no moment." Id. at 224 (quoting Walton v. Visgil, 248 N.J. Super. 642, 650 (App. Div. 1991)).
In any event, "[o]verlapping, common expenditures are inevitable and are, indeed, incident to one's status as a custodial parent. A reasonable allocation of such expenses based upon adequate, credible evidence in the record is the goal." Caplan v. Caplan, 364 N.J. Super. 68, 87 (App. Div. 2003), aff'd, 182 N.J. 250 (2005). Here, the trial court considered "what portion of those expenses was for the benefit of the children and what portion was for the benefit of [plaintiff]." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008). Under the unique circumstances of this case, the court's allocation to the children of two-thirds of the total cost to provide for gas, electric, and cable/Internet/phone was not an abuse of discretion.
C.
The trial court used the guidelines as "[t]he starting point for recalculating defendant's child support obligation" in this high-income case. Defendant argues the court erred in using the guidelines for two reasons: (1) the parties' combined income exceeds the maximum for which the guidelines provide and (2) the guidelines are not applicable to Molly as she is a resident at college.
The guidelines contain a table establishing the basic child support amount of up to $589 for two children based on combined parental net income of $3600 per week, the equivalent of $187,200 per year. Guidelines, supra, Appendix IX-F to R. 5:6A.
If the combined net income of the parents is more than $187,200 per year, the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income (i.e., income in excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23.
[Id. Appendix IX-A to R. 5:6A ¶ 20(b).]
We have enumerated the steps to be taken in high-income circumstances:
First, the reasonable needs of the children must be determined . . . .The trial court engaged in essentially that analysis, using the guidelines as its starting point before following the procedure outlined in Caplan and considering the statutory factors.
. . . .
Second, . . . the ability of the parties to generate earned income, in addition to unearned income, must be determined. . . .
. . . .
Third, upon determining the respective percentage of each party's net imputed earned and unearned income of their total combined net imputed earned and unearned income, those percentages shall be applied to determine each party's share of the maximum basic child support guideline award
. . . .
Fourth, the maximum basic child support amount . . . should be subtracted from the court-determined reasonable needs of the children to determine the remaining children's needs to be allocated between the parties. Then, the court must analyze the factors outlined in N.J.S.A. 2A:34-23(a) and determine each party's responsibility for satisfying those remaining needs.
[Caplan, supra, 364 N.J. Super. at 86-90.]
Defendant next argues that Molly's attendance at college makes the guidelines inapplicable. Defendant is correct that "the Appendix IX-F support schedules shall not be used to determine . . . the amount of support for a child attending college" if the child is residing at college. Guidelines, supra, Appendix IX-A to R. 5:6A ¶ 18. "When determining whether continued financial support for children attending college and/or parental contributions to college education are appropriate, the court shall consider relevant case law and statutes." Ibid. This means that "courts . . . must assess all applicable facts and circumstances, weighing the factors set forth in N.J.S.A. 2A:34-23a." Jacoby, supra, 427 N.J. Super. at 113.
The trial court recognized that it was not appropriate to include Molly in the guidelines calculation once she began residing at college. The court quoted that "[t]he [g]uidelines are not applicable when determining the parental obligation for child support of unemancipated college students. Rather, the child support obligation is considered in light of all the financial circumstances of the parties and children." Raynor v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999).
Regarding Tommy, despite maintaining this was not a guidelines case, defendant supplied the trial court with guidelines worksheets and asked it to use the guidelines in calculating his child support obligation for Tommy. Had Tommy been a minor, it would have been appropriate for the court to calculate "the continued support of minor children remaining in the primary residence by reapplying the child support guidelines for those children before determining parental obligations for . . . continued support for a child attending college." Guidelines, supra, Appendix IX-A to R. 5:6A ¶ 18. However, the "guidelines shall not be used to determine a support obligation for a child who has reached majority (18 years of age) and who is no longer enrolled in high school or other secondary education," whose support "shall be determined in accordance with N.J.S.A. 2A:34-23 and existing case law." Id. ¶ 25. As Tommy was over eighteen and not in high school, the court should not have used the guidelines regarding Tommy.
However, the trial court used the guidelines tables in an inconsequential way. Independent of the guidelines, the court evaluated the needs of Tommy and Molly to be $3090 per month, and subtracted Tommy's $435 per month SSI payments, resulting in monthly and weekly needs of $2655 and $617, respectively. Also independent of the guidelines, the court determined the incomes of plaintiff and defendant, calculated defendant had 90% of that income, and reviewed all the factors in N.J.S.A. 2A:34-23(a). The court only used the guidelines as an intermediate step under Caplan, subtracting the guidelines' $589 maximum basic child support award (for two children and total parental income of $187,200) from the $617, leaving a $28 difference. The court then required defendant to pay 90% of the $589 and 90% of the $28. Had the court not used the guidelines' maximum figure to separate the $617 and instead simply required defendant to pay 90% of the $617, the result would have been essentially the same. Therefore, any error is harmless.
Accordingly, it was harmless error for the trial court to reference the guidelines and then to consider the factors under N.J.S.A. 2A:34-23(a). Cf. Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 595 (App. Div. 2016) ("Reliance exclusively upon the guidelines in these situations constitutes reversible error." (emphasis added)).
D.
Our Supreme Court "leave[s] to the trial court's discretion the choice of the methodology to employ in arriving at a child support award when the total income of the parties exceeds the guidelines." Caplan, supra, 182 N.J. at 272. Here, in determining defendant's annual income, the court arrived at $231,000 by averaging his gross annual incomes from 2012, 2013, and 2014.
Defendant provided widely varying estimates of his net income. Nonetheless, he argues child support should be allocated according to combined net income, not combined gross income.
If the trial court performed a pure guidelines calculation, its use of gross income might have been problematic. See id. at 264-65; Guidelines, supra, Appendix IX-A to R. 5:6A ¶¶ 11-12. However, as set forth above, the court performed an essentially non-guidelines analysis, only inconsequentially referencing the guidelines' $589 maximum basic child support award. The court primarily relied on its application of N.J.S.A. 2A:34-23(a), which applies "in those cases not governed by court rule." The statute require courts to consider "[a]ll sources of income and assets of each parent" without limiting the court's consideration to net income. N.J.S.A. 2A:34-23(a)(3). No case requires the use of net rather than gross income under N.J.S.A. 2A:34-23(a).
Moreover, the trial court used gross income for both parties. The court imputed $25,000 annual income to plaintiff and found defendant's average annual income of approximately $231,000 was 90% of the parents' combined total income.
Further, it appears that if both parties' net income were used in the calculations, defendant's 90% apportionment of child support would be reduced by less than 2% and his $555.20 weekly child support obligation would be reduced by less than $6. Given these relatively minor differences and the increased flexibility under N.J.S.A. 2A:34-23(a), we cannot say the trial court's award was "'"manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice."'" J.B., supra, 215 N.J. at 326 (citations omitted).
Defendant also argues the $25,000 income imputed to plaintiff was inadequate. We find no abuse of discretion substantially for the reasons given by the trial court. The court properly took into account both plaintiff's prior earnings and her current responsibilities as the primary caregiver for Tommy. See Caplan, supra, 182 N.J. at 270 (providing that a court imputing income shall consider "a party's responsibility for care of children, and, in particular, the care required for any special-needs child").
E.
Defendant asked the trial court to order plaintiff to pay some of Carly's college expenses. The court denied that request. On appeal, defendant does not challenge that ruling.
The trial court also stated that, "[i]n calculating the parents' child support obligation to [Tommy] and [Molly], the Court is cognizant of the fact that defendant was the sole source of child support for the parties' oldest daughter, [Carly]." On appeal, defendant argues the court should have included Carly in its child support calculations.
However, in the trial court defendant did not seek child support for Carly, or ask that she be included in the child support calculations. His passing and conclusory references to support were insufficient to raise such a claim. See U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 114 (App. Div. 2016). "[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). We decline to consider defendant's argument.
F.
The trial court noted that defendant consented to maintain Tommy and Molly on his health insurance plan. On appeal, defendant argues that as a result he should have received credit against his child support obligation. The guidelines provide:
Unless the parents agree to an alternative health care arrangement, all child support orders shall provide for the coverage of the child's health care needs . . . . The parent's marginal cost of adding a child to a health insurance policy shall be added to the basic child support award and deducted from the paying parent's income share of the total child support award . . . .
[Guidelines, supra, Appendix IX-A to R. 5:6A ¶ 26 (emphasis added).]
Here, the parties agreed to an alternative health care arrangement. In the FJOD, the parties agreed that "Defendant [would] maintain the children as beneficiaries on any medical insurance/hospitalization coverage which he has available through employment." That has remained the status quo.
Moreover, defendant did not ask for credit in his cross-motion, and his certification did not clearly raise the issue or designate the plans he had selected. We decline to address this claim.
G.
Defendant claims several other errors in the child support calculations for Tommy and Molly.
First, in determining the "reasonable needs" of Tommy, the court included a $124 monthly expense representing the annualized average cost of his summer camp. Defendant testified he already paid for Tommy's camp in 2013 and 2014 and that Tommy aged out of the camp. However, defendant produced no documentary evidence to support his claims, and the court was not required to believe defendant's testimony. Moreover, in calculating child support under N.J.S.A. 2A:34-23(a), the court was not constrained by the guidelines' provision that such expenses should be added to, rather than used to calculate, the basic support obligation under the guidelines. See Guidelines, supra, at Appx. IX-A to R. 5:6A, ¶ 9(a), (c).
Our ruling is without prejudice to defendant filing a motion supplying documentary evidence that he already paid these expenses. --------
Second, the trial court included in Tommy's reasonable needs $50 a month for gym membership. Defendant argues it was improper to include such a cost because no such expense has been incurred. However, plaintiff's 2013 motion requested inclusion of such an expense, so the court properly considered it in determining child support. When the delay in the resolution of such a motion postpones the awarding of funds to pay for a reasonable expense, the obligor cannot escape the obligation by noting the obligee has not yet engaged in the activity for which the obligor has not yet provided the funds.
Third, the trial court properly relied on plaintiff's Case Information Statement in determining that the gas and electric expense was $300 per month for plaintiff, Tommy, and Molly. Defendant challenged that expense and submitted one monthly gas statement and one monthly electric statement, but neither statement gave a monthly average for an entire year. Further, the court need not subtract the means-tested energy public assistance plaintiff was receiving. See Burns v. Edwards, 367 N.J. Super. 29, 38-50 (App. Div. 2004) (excluding the parent's means-tested income from the child support calculation); see also Guidelines, supra, at Appx. IX-A to R. 5:6A, ¶ 10(c).
Fourth, plaintiff requested computer-skills tutoring for Tommy at a cost of $1419 per month. The trial court stated it was "not satisfied that Tommy will benefit from weekly tutoring" as proposed by plaintiff. Instead, the court included only a $100 monthly tutoring expense, finding that Tommy "may benefit from some tutoring." That was well within the court's discretion.
Fifth, the trial court allocated $300 a month for Tommy for "clothing (and entertainment)." The trial court also allocated $250 per month for Tommy's "food, entertainment and incidentals (over-the-counter medications, sundries)." Defendant challenges the allocation of $300 per month for clothing. However, given plaintiff's testimony about how Tommy frequently stains, rips, shreds, and dirties his clothes, the court did not abuse its discretion in allocating $300 a month for Tommy's clothing expenses. Defendant has not shown any consequence from the court's listing of "entertainment" in two categories.
Sixth, the trial court's opinion stated that "plaintiff's request for respite time one weekend a month . . . is reasonable and is an appropriate child care expense." Defendant argues there is no provision in New Jersey child support law for respite care. However, we need not address this issue as the court ultimately declined to include an amount for respite care or other recurring child care expenses in the child support award given the testimony and evidence indicating that a significant amount of Tommy's childcare expenses is reimbursed. The court generally provided: "To the extent plaintiff does not receive full reimbursement for the approved recurring child care expenses, the expenses will be ordered to be shared by the parties pursuant to the percentage of their current incomes." If in the future plaintiff argues she has not been fully reimbursed for respite care and that such expenses must be allocated between the parties, defendant may renew his argument.
H.
Defendant challenges the award of counsel fees. The trial court ordered defendant "to pay plaintiff counsel fees in the amount of $35,000." The motion judge earlier ordered defendant to pay plaintiff $5000 in counsel fees subject to reallocation at trial.
"We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan, supra, 402 N.J. Super. at 317 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We find no clear abuse of discretion here.
We uphold the trial court's counsel fee award substantially for the reasons set forth in the court's opinion, which analyzed all of the factors under Rule 5:3-5(c). Defendant argues plaintiff acted in bad faith. However, the court found that "neither party acted in bad faith," even though "neither party advanced reasonable child support positions." Indeed, the court found "[t]he positions advanced by defendant at the plenary hearing were less reasonable than those advanced by plaintiff and, therefore, he was more responsible than plaintiff for the legal expenses associated with the plenary hearing."
We reject as groundless defendant's attacks on the trial court's impartiality.
IV.
Plaintiff briefly argues that the trial court was incorrect in subtracting Tommy's SSI income from the amount the court had calculated as his reasonable needs, thus effectively crediting the SSI benefits against defendant's child support obligations. She cites the guidelines, which provide that SSI and other "[m]eans-tested benefits for the child are excluded from income (not counted for either parent)" and shall not be a "credit" subtracted from the non-custodial parent's share of the child- support obligation. Guidelines, supra, Appendix IX-B to R. 5:6A sole-parenting worksheet lines 5(a), 15; see Gifford v. Benjamin, 383 N.J. Super. 516, 518, 521 (App. Div. 2006) (finding the guidelines instructions "prohibit SSI benefits received by the child from being deducted from a support award" or "credited against the non-custodial parent's child support obligation").
The trial court stated it was appropriate to take these benefits into account because "this case falls outside the child support guidelines." The court cited N.J.S.A. 2A:34-23(a), which provides that the court shall consider "[a]ll sources of income and assets of each parent," the "[i]ncome, assets and earning ability of the child," and "[a]ny other factors the court may deem relevant." N.J.S.A. 2A:34-23(a)(3), (7), (10). In particular, the statute states that if a "child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent," then "in assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in this section, the child's eligibility for public benefits and services for people with disabilities." N.J.S.A. 2A:34-23(a).
We decline to address plaintiff's claim. First, although plaintiff filed a Notice of Cross-Appeal, she filed her appellate brief solely as "respondent," argued the trial court's child support "award was more than fair and reasonable," and did not request reversal. Second, there is no case precluding consideration of SSI income under N.J.S.A. 2A:34-23(a), which is not limited by the guidelines' instructions. In these circumstances, we will not grant a reversal plaintiff has not requested by resolving an unsettled issue.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION