Opinion
DOCKET NO. A-1489-12T4
06-23-2014
JOHN RUSSITANO, JR., Plaintiff-Appellant, v. MELISSA RUSSITANO, Defendant-Respondent.
John Russitano, Jr., appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-2198-11.
John Russitano, Jr., appellant pro se.
Respondent has not filed a brief. PER CURIAM
In this post-judgment matrimonial matter, appellant John Russitano appeals from the October 26 and November 29, 2012 Family Part orders addressing the parties' cross-motions. After reviewing the issues raised by the parties, we affirm in part, and remand for further proceedings.
We discern the following facts from the record of the motion hearing and the trial judge's statement of reasons. The parties were married on June 11, 2000, and three children were born of the marriage. The parties divorced by way of a June 27, 2011 final judgment of divorce (FJD), which incorporated their Property Settlement Agreement (PSA). The PSA incorporated the Custody and Parenting Time Consent Order entered on April 20, 2011.
On October 2, 2012, defendant Melissa Russitano filed a pro se motion to: (1) relocate with the children to Alabama; (2) reinstate and increase child support; (3) modify the PSA to permit her to claim all three children; (4) enforce the provisions of the PSA requiring reimbursement of John's fifty-percent share of the children's activity expenses, medical expenses, and household bills; (5) enforce the custody and parenting time provisions. John filed a pro se cross-motion, seeking recalculation of child support, division of the proceeds from the sale of the marital home, and enforcement of parenting time provisions.
After hearing oral argument on October 26, 2012, the judge rendered an oral opinion and issued an order the same date, which directed the parties to attend mediation to attempt to resolve the relocation, custody and parenting time matters, or submit to a plenary hearing on the relocation request. With respect to child support, the judge found the parties established sufficient changed circumstance to warrant a review of the child support award, and ordered John to submit three recent paystubs to allow for the recalculation in accordance with the New Jersey Child Support Guidelines. As to the remaining matters, the judge, in large part, ordered the parties to comply with the terms of the PSA. In doing so, the judge denied Melissa's request to modify the PSA to permit her to claim all three children as her dependents. He denied Melissa's request to amend the PSA to require John to provide an annual $2000 payment for his percentage share of the costs for the children's activities in lieu of seeking his periodic consent and reimbursements for the expenses. Instead, the judge approved her request for $450 as reimbursement for specified expenses for the children's activities. The judge ordered the parties to consult with each other, and John to timely respond to Melissa, regarding any future extracurricular activities. Melissa's reimbursement request for braces was denied at that time, however the judge ordered the parties to share any unreimbursed medical expenses for the children, including orthodontia when it became necessary.
On November 29, 2011, the judge issued a child support order with a statement of reasons explaining the basis for the recalculation. That order is the subject of this appeal.
Regarding the unresolved equitable distribution matters, the judge ordered John to complete the appraisal of his pension account, and directed the parties to prepare a qualified domestic relations order (QDRO). Lastly, the court ordered Melissa to provide John any outstanding household bills, and for John to satisfy those debts. This appeal followed.
On appeal, John contends the trial court judge favored Melissa's motion and did not address all of the issues raised in his cross-motion. He also challenges the subsequent child support order and the reinstatement date.
After a careful review of the arguments advanced in John's brief, the record, and applicable legal principles, we find the motion judge omitted review and determination of issues raised by John in his cross motion. We conclude the other claims advanced lack sufficient merit to warrant extensive discussion in a written opinion and affirm. R. 2:11-3(e)(1)(A) and (E).
We note at the outset, John has not complied with the Court Rules governing the submission of a brief and appendix, including the requisite documents to inform our appellate review. His appendix is apparently limited to those documents he deems relevant to his arguments on appeal. Rule 2:6-1 states that in civil actions, the appendix must include the pleadings and "such other parts of the record, excluding the stenographic transcript, as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised." The appendix here does not contain the entire FJD or PSA, the motions submitted to the court, or a copy of the Child Support Guidelines Worksheet that was noted to be attached to the child support order. These documents are necessary in this case for meaningful appellate review, given the nature of the issues raised on appeal. R. 2:6-19a)(1). Nor does John's brief comply with Rule 2:6-2, requiring that the legal argument be divided "under appropriate point headings." Rather, John's brief is an unorganized assemblage of his discussions intermixed with copies of exhibits and portions of the motion papers, discernible to us only by the different fonts used for each. Finally, in his brief, John argues several matters that were not raised before the motion judge, which we will not address. R. 2:6-2.
As a self-represented party, John is held to the same standard for compliance with our court rules as a litigant represented by counsel. Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). These irregularities described above have made it difficult to follow John's arguments. Although these filing deficiencies could warrant a dismissal, In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000), we decline to do so.
Our review of a trial judge's findings is a limited one. 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. Accordingly, 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 & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and 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, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, a trial judge's conclusions "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
As to the remaining challenges raised on appeal, we provide these brief comments. John takes issue with the basis for Melissa's request to relocate to Alabama with the children, but has not challenged either the court's order referring the parties to mediation or the determination to hold a plenary hearing on the removal of the children if the parties do not reach an agreement. We conclude the trial judge's order on this issue was not final at the time of filing the appeal because the court had not yet ruled upon Melissa's removal motion. As such, Melissa was required to seek leave to appeal pursuant to Rule 2:5-6(a), but did not do so. As required by Rule 2:2-3(a)(1), this court has jurisdiction to consider appeals "from final judgments of the Superior Court trial divisions." In all other instances, jurisdiction to consider an interlocutory matter is only upon leave granted. R. 2:2-4. Thus, this claim must be dismissed without prejudice.
We have not been advised that this issue has been resolved during the pendency of this appeal. Nor has the Notice of Appeal been amended with respect to the removal issue.
Next, John contends the judge failed to properly calculate child support by incorrectly establishing his income from the financial documents provided, and by imputing income to Melissa based on her outdated work experience rather than her more recent work history as a payroll specialist. We reject John's arguments and conclude the judge did not abuse his discretion in recalculating child support.
The trial court is afforded substantial discretion to determine child support awards and other support obligations. Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001) (relying on Pascale v. Pascale, 140 N.J. 583, 594 (1995)). "If consistent with the law, such an 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." Foust, supra, 340 N.J. Super. at 315-16 (quotations omitted). Applying these standards, we discern no reason to disturb the judge's decision.
The judge imputed income to both parties for the calculation of child support. The judge determined Melissa's income based on her experience as a manicurist. Her stipulated income for purposes of the PSA was $37,000. John argued Melissa could earn $37,000 based upon either her payroll specialist or manicurist experience. Melissa's tax returns for 2008 and 2010, presented to the motion judge, demonstrate reported gross receipts as a payroll specialist of $11,450 and $19,000, respectively. The judge utilized the average income for a manicurist and imputed annual income of $23,090 to Melissa.
As for John, the judge imputed biweekly income of $2,808.86 based upon the average of his three recent paystubs. In light of the 2011 W-2 statement indicating gross pay of almost $71,000, and an increase in his hourly rate in October 2012, this imputed amount of income was not unreasonable. As there was no abuse of discretion in the amount of imputed income to calculate child support, we will not disturb the order.
Next, John argues the effective date of the child support order should be modified to the date of the hearing, October 26, 2012, due to Melissa's alleged non-compliance with the parenting time order. We reject Melissa's argument, for it misapprehends the purpose of N.J.S.A. 2A:17-56.23a. It has been emphasized time and time again that visitation and the obligation to pay child support are not interdependent. See In re Adoption of Two Children by J.J.P., 175 N.J. Super. 420, 430 (App.Div.1980). The right to child support belongs to the child and not the custodial parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995). Therefore, the misdeeds of the custodial parent should not be visited upon the child. See Ross v. McNasby, 259 N.J. Super. 410, 414 (App. Div. 1992).
On August 23, 2012, in response to appellant's Order to Show Cause (OTSC) seeking the return of the children to New Jersey, the court found defendant in violation of an August 14, 2012 order directing her to return to New Jersey with the children, issued a bench warrant for her arrest, and suspension of plaintiff's child support obligation.
In support of her instant motion to reinstate child support, defendant explained she had not been served with the order directing her to return the children by a certain date, but on August 28, 2012, when she learned of the bench warrant, she immediately contacted the court. On August 30, 2012, the court denied plaintiff's motion for OTSC as nonemergent and vacated the bench warrant, but did not reinstate child support.
N.J.S.A. 2A:17-56.23a states, in relevant part: "No payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification."
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Here, the judge appropriately addressed the custody and parenting time issues separately from the recalculation of child support. The judge applied the statute and did not abuse his discretion by following the general practice of establishing the effective date as of the date of the filing of the motion.
As to John's remaining challenges to the order, we conclude there is no basis to disturb the judge's decisions, which were rendered based on a reasonable exercise of discretion. The parties had only been divorced a little over one year at the time the motions were filed and the PSA addressed many of the issues raised in the parties' motions. Requiring the parties to adhere to the agreement they entered into was not an abuse of discretion.
"New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). Courts recognize the contractual nature of those matrimonial agreements. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). As contracts, PSAs should be enforced according to the original intent of the parties. Id. at 266. Therefore, as a general rule, "absen[t] . . . unconscionability, fraud, or overreaching in negotiations of the settlement," a trial court has "no legal or equitable basis . . . to reform the parties' property settlement agreement." Miller v. Miller, 160 N.J. 408, 419 (1999). We find no error in the court's determination.
Lastly, John contends the judge failed to address his cross-motion seeking to resolve the distribution of the proceeds from the sale of the marital home. He argues the proceeds are being held in an escrow account and each party is entitled to a sizable distribution. He contends the proceeds would then be available to resolve the household bills. While we can find no fault with the judge's order regarding the resolution of the household bills, we agree the judge did not address John's cross-motion to distribute the proceeds of the sale of the marital home. Therefore, we remand for the court to consider that issue.
Affirmed in part, and remanded for further proceedings on John's cross-motion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION