Opinion
DOCKET NO. A-0482-12T2
07-01-2014
ELIMU CURTIS, Plaintiff-Appellant, v. CRYSTAL REED, Defendant-Respondent.
Elimu Curtis, appellant pro se. Crystal Reed, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1942-10.
Elimu Curtis, appellant pro se.
Crystal Reed, respondent pro se. PER CURIAM
In this post-judgment matrimonial action, plaintiff Elimu Curtis appeals from the Family Part's August 9, 2012 order awarding child support to his ex-wife, defendant Crystal Reed, maintaining the parties' existing custody schedule and denying Curtis's motion for recusal. Having considered the arguments raised in light of the record and applicable legal standards, we affirm.
Before turning to the specific arguments of the parties, we briefly set forth the relevant factual background and procedural history.
Curtis and Reed were married at a time and place undisclosed by the record, and produced a daughter during the marriage (the Child). Both parties have additional children from previous relationships, all of whom apparently lived in the marital household. In June or July 2010, Curtis was granted a judgment of divorce (JOD) in uncontested proceedings based upon Reed's alleged abandonment of the family and home in April 2009.
The JOD is not included in the record before us and the parties' submissions represent conflicting dates regarding its entry.
After the divorce, the parties informally agreed to an arrangement for joint custody of the Child with a specific visitation schedule. The parties apparently hewed to that schedule until the present action was commenced.
On February 20, 2012, Reed filed a motion for "full residential custody" of the Child and modification of the parenting schedule. Reed certified that such changes were warranted because of continuous disagreements with Curtis over scheduling and her concerns about the Child's safety. Curtis filed papers in opposition and requested that there be no change to the existing arrangement.
On April 20, 2012, the parties presented their applications in a hearing before the Family Part judge. Reed contended that there was "no communication" between the parties about the Child's welfare and accused Curtis of repeatedly breaching the agreed-upon parenting schedule. She also raised concerns about the Child's welfare under Curtis's care, alleging that he would bring the Child to work until late in the evening, causing the Child to fall asleep in school. She further asserted that the Child was exposed to pornographic materials at Curtis's home. Finally, Reed indicated that Curtis refused to give her any money for the Child's necessaries or after-school care.
Curtis responded that the parties had an acceptable arrangement and that any change to it would be an "inconvenience." He denied Reed's allegations about harming the Child and noted that DYFS had investigated the pornography allegation and closed the case. The judge deferred her ruling pending a full investigation by the Probation Division.
A second hearing took place on June 8, 2012. The judge noted that she had received the investigation report, and asked the parties if they had had the opportunity to review it. The judge acknowledged, however, that she withheld from the parties the copy of the probation officer's interview with the Child, so that such report would not "be in any way shared with or used against the child." Neither Curtis nor Reed objected.
Reed first repeated in more detail her concerns about the Child's welfare and then raised the issue of child support, purporting to have previously filed a motion for the same. She contended that Curtis refused to help out financially in the three years since the parties had been separated and divorced.
Curtis countered that he had been bearing significant costs to take care of the Child's needs, and voiced bewilderment as to why Reed would be entitled to child support after abandoning the family.
The judge initially denied Reed's motion to modify custody, stating:
I've read the best interest report. I've read the interview of the child. I've read the attachments from the school, including the letter from [the Child]'s teacher. I don't find it would be in her best interest to change custody. I think you both have something valuable to contribute to her . . . well-being and her life. You are both her parents; you have a right to be equally involved in her life.
And I'm satisfied . . . that the homework not being completed, that issue seems to have been addressed. Because I see from the most recent [sic], that there's not been that issue. And so any concerns I had about that seem to have been addressed. So at this point, I'm going to deny your
application. You'll continue to have shared custody and we'll give you an order to that effect . . . .
The judge then turned to the issue of child support and, after reviewing the parties' financial records and the number of "overnights" at each residence, executed a CSG Worksheet. The judge designated Reed as the Parent of Primary Residence (PPR) with 209 overnights. The judge then stated that Curtis was obligated under the worksheet calculations to provide $52 per week in child support to Reed.
Curtis filed a motion for reconsideration challenging the decision in two respects: first, because Reed never actually filed a motion for child support and the parties had an existing agreement establishing equal responsibility for the welfare of the Child; and second, because of the judge's "inappropriate use" of the Child Support Guidelines.
Reed then filed her own motion on or about July 24, 2012, seeking an order modifying the parenting arrangement and changing her surname back to "Reed." In support of her modification request, Reed certified that her work hours had changed. Curtis cross-moved in opposition, proposing an amended custody schedule.
A hearing on the reconsideration motion and Reed's cross-motion was convened on August 9, 2012. Curtis asked the judge to recuse herself, stating that the case "doesn't seem to be going in a very fair manner" and that the tenor of the matter was becoming increasingly contentious.
The judge denied the recusal motion, stating, "I treat all my cases fairly. I listen to both sides." She then asked Curtis to address his motion for reconsideration. He first argued that the sua sponte order of child support at the earlier hearing without a noticed motion was fundamentally unfair because he did not have adequate time to prepare. Additionally, he pointed to specific information omitted from the judge's CSG Worksheet, including his other dependent children. He argued that the distribution of overnights had been "50-50" under the parties' original arrangement.
The judge determined that the overnights should be split in half, setting Curtis's overnights at 182 days per year and Reed's at 183, thus making her the PPR. After Curtis objected to that PPR designation as arbitrary, the judge replied that it was in the Child's best interests because Reed was "more involved with the school." After crediting Curtis for 182 overnights and for his other dependent-son, the retooled CSG Worksheet reduced Curtis's child support obligation to $39 per week.
The judge then denied the parties' applications to modify the parenting scheduling, but noting that she would send the parties to mediation on that issue if they desired.
After the main issues had been addressed, and Curtis had left the courtroom, Reed reminded the judge about her request for a name change, which the judge granted. A written order memorializing the judge's decision was filed on the same day.
Curtis appeals from the August 9 order awarding child support to Reed and the judge's designation of Reed as the PPR in the CSG Worksheet. He also challenges the judge's decision to maintain the status quo regarding the parents' custody schedule of their daughter. Finally, Curtis contends that the judge was biased and should have recused herself.
In considering a Family Part judge's decision with regard to an application to establish or modify support obligations, we review for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Our standard of review regarding the judge's factual findings is highly deferential, given the Family Part's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We will reverse only when our review uncovers findings of fact "so wholly unsupportable as to result in a denial of justice." Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (internal quotation marks omitted).
By statute, parents are presumptively required to provide for the financial support of their unemancipated children. See N.J.S.A. 2A:34-23. Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). The right to child support "belongs to the child" and cannot be waived by the parents. Id. at 591. A decision regarding child support "must be based on an evaluation of the child's needs and interests and not on the conduct of the parents." Ibid.
Here, we find meritless Curtis's argument that modification of the existing support arrangement was unwarranted because Reed had previously abandoned the marriage and family. It is well settled that marital fault "is an irrelevant consideration in fixing child support" and thus does not "affect the obligor parent's support obligation." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 to R. 5:6A (2014); cf. Kinsella v. Kinsella, 150 N.J. 276, 314 (1997); Calbi v. Calbi, 396 N.J. Super. 532, 539 (App. Div. 2007); Gordon v. Gordon, 147 N.J. Super. 585 (App. Div. 1977).
Curtis also challenges the initial child-support award contained in the June 8, 2012 order due to the absence of a properly-noticed motion by Reed. We note that Curtis has not appealed from that order, but we find no prejudice because his subsequent motion for reconsideration was heard and partially granted by the judge.
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Curtis also contends that the judge erred by arbitrarily designating Reed as the PPR for purposes of calculating the child-support award. We disagree, finding no abuse of discretion.
The Child Support Guidelines (the Guidelines), set forth in Appendix IX of the New Jersey Court Rules, must be applied in every decision to establish or modify child support unless the court, within its sound discretion, finds good cause to modify or disregard them. R. 5:6A; Pressler & Verniero, supra, Appendix IX-A to R. 5:6A; Ordukaya v. Brown, 357 N.J. Super. 231, 239 (App. Div. 2003).
The Guidelines presume that one parent will be designated the PPR and the other will be designated the Parent of Alternate Residence (PAR). Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 2592. The PPR is the parent with whom a child resides for more than fifty percent of the time or, if a child spends equal overnights with each parent, "the parent with whom the child resides while attending school." Ibid.
The Guidelines incorporate assumptions about which parent bears categories of expenses for the child; even where custody is shared, the Guidelines assume that only the PPR incurs "controlled expenses," such as clothing and personal care, which account for approximately one-fourth of the basic child support amount. Benisch v. Benisch, 347 N.J. Super. 393, 397 (App. Div. 2002); see also Wunsch-Deffler v. Deffler, 406 N.J. Super. 505, 508 (Ch. Div. 2009)(addressing the formula for "backing out" the twenty-five percent in controlled expenses when the parents share an equal number of overnights).
In Benisch, supra, we noted that the assumption that one parent pays for all controlled expenses may not be valid when the children spend an equal or near equal amount of time with both parents, and that the likely effect of near-equal sharing of parenting time may require an adjustment of "controlled expenses" resulting in a reduction of child support to the PPR. 347 N.J. Super. at 397-401. We did not in Benisch, however, mandate that the Family Part adjust controlled expenses in every instance of equal shared parenting time. Id. at 399 (acknowledging "there may be bona fide reasons" for designating one parent as PPR in equal-parenting-time arrangements).
Here, the judge explained that, even though the parties would be splitting the overnights, she was designating Reed as PPR because she was "more involved with the school." That finding was not so wholly unsupported by the record as to result in a denial of justice. See Colca, supra, 413 N.J. Super. at 413.
We are not unmindful about the significant "tangible, monetary effects" of the designation of parent of primary residence. Benisch, supra, 347 N.J. Super. at 396. We note, however, that the Guidelines provide that a PAR routinely incurring controlled expenses for the child, either in addition to or in substitution for an expense assumed to be unilaterally provided by the parent of primary residence, may rebut the controlled expense assumption on appropriate proofs. Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 2557-58. Curtis did not attempt to muster the proofs necessary to rebut that assumption in the Family Part. His unsupported assertion that the parties share the controlled expenses for the Child, in response to the court's tentative decision, does not suffice.
With regard to the recusal request, we have held that the disposition of a motion for disqualification is entrusted to the "'sound discretion' of the trial judge whose recusal is sought." Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.)(quoting Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)), certif. denied, 200 N.J. 207 (2009).
Here, the record discloses nothing substantiating Curtis's assertions that bias motivated the judge and influenced the proceedings. We concur with the judge that unfavorable rulings and contentiousness between the parties do not constitute sufficient legal grounds to justify recusal. See Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008)("Bias cannot be inferred from adverse rulings against a party.").
Nor do we find an abuse of discretion in the judge's decision to deny Curtis's motion for alternating weeks of visitation, continue the status quo and refer the parties to mediation. At the August 9 hearing, the judge reiterated her earlier determination that the existing arrangement was in the best interests of the child. Curtis points to no evidence indicating that this decision was "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)(internal quotation marks omitted).
We find Curtis's remaining arguments without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION