Opinion
DOCKET NO. A-2121-12T3
04-24-2014
GUIDO A. SCRIVANICH, JR., Plaintiff-Appellant, v. CHRISTINE CONOVER, Defendant-Respondent.
Cores & Nachlinger, L.L.C., attorneys for appellant (Amy Sara Cores, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1475-08.
Cores & Nachlinger, L.L.C., attorneys for appellant (Amy Sara Cores, on the brief).
Respondent has not filed a brief. PER CURIAM
In this post-judgment matrimonial matter, plaintiff Guido A. Scrivanich, Jr., appeals from a November 26, 2012 Family Part order compelling defendant Christine Conover to pay $8 per week in child support. Plaintiff contends that the family court mistakenly exercised its discretion by failing to find that defendant was voluntarily underemployed and by declining to impute a higher income to plaintiff. Plaintiff also asserts that the court failed to make adequate findings of fact and conclusions of law. For the reasons that follow, we affirm.
The record reveals that plaintiff and defendant were married in 2004 and had two children, born in 2006 and 2007. The parties divorced in 2009 and incorporated their Property Settlement Agreement (PSA) into their judgment of divorce dated April 30, 2009. The parties agreed in the PSA to share joint legal custody of the children with defendant serving as the parent of primary residence. The PSA provided a visitation schedule for plaintiff and set plaintiff's child support obligation at $225 per week. Plaintiff agreed to maintain medical insurance for the children with defendant to cover the first $250 in unreimbursed medical-type expenses per year followed by equal sharing of subsequent expenses.
The court entered a consent order on October 5, 2011, granting plaintiff temporary custody due to defendant's relocation to Arizona because she was "destitute." The judge suspended plaintiff's child support obligation, and the parties agreed that defendant would not be required to pay child support at that time. Plaintiff, however, reserved the right to seek future child support from defendant.
Defendant's mother, Susan Conover (Susan), filed a separate grandparent visitation proceeding, and the court granted visitation every other Saturday. Defendant returned to New Jersey in early 2012 and resided in a homeless shelter, but subsequently relocated to her mother's house. Defendant then moved to modify her visitation because of her work schedule. Plaintiff cross-moved for, among other things, child support from defendant.
To avoid confusion, we will use defendant's mother's first name as she shares defendant's last name, meaning no disrespect.
On April 27, 2012, the judge consolidated the grandparenting visitation case with the post-judgment matrimonial case. The judge granted defendant parenting time every other weekend, which partly coincided with Susan's visitation time. The judge denied, without prejudice, plaintiff's request for child support from defendant due to incomplete financial information from both parties.
On June 9, 2012, defendant moved to modify her visitation a second time and sought to change Susan's visitation so that it would not overlap with her time. On June 11, 2012, plaintiff filed a motion seeking, among other things, (1) child support; (2) arrears; (3) reimbursement of the children's medical expenses; (4) reimbursement of his prior overpayment in child support; (5) twenty-four hours' notice from defendant if she was going to exercise her weeknight visitation time; (6) permission to enroll the children in Catholic school; and (7) counsel fees and costs.
On June 17, 2012, Susan wrote a letter to the judge requesting weekday visitations, so that her visitation would not interfere with defendant's visitation. Additionally, Susan made numerous uncomplimentary allegations against plaintiff, including that plaintiff was not complying with the visitation schedule and was being verbally abusive.
On June 19, 2012, defendant submitted a letter to the judge opposing plaintiff's motion and stating that she previously had a brain tumor and was impoverished, in debt, homeless, without a vehicle, and utilizing her minimum wage salary working at a pharmacy to pay her living expenses. She also included various unfavorable allegations about plaintiff's wealth, lifestyle, and character.
In his reply certification, plaintiff stated that defendant did "in fact have a long history of mental problems," "had brain surgery several years ago," and had "seizures and was taking anti-psychotic medication." He also certified that when she stopped her medication, "her behavior deteriorated." In his opinion, when she was in court in April 2012, she appeared to be in a "manic state." Plaintiff then related that defendant had a college degree and was fluent in sign language, which, he opined, enabled her to acquire higher-paying employment as a translator. Plaintiff denied defendant's pejorative allegations about him, including that he was wealthy. In his certification, plaintiff also opposed Susan's continued visitation and objected to Susan's attacks on him.
After oral argument concerning both motions on July 6, 2012, the trial court entered two separate orders. Regarding plaintiff's motion, the court issued an order compelling defendant to (1) pay child support, with the amount to be determined after defendant submitted her Case Information Statement (CIS), W-2 and tax return, and three most recent pay stubs; (2) pay plaintiff arrears in the amount of $20 per week; (3) contribute to the children's medical expenses pending receipt of her financial information and reimburse plaintiff for half of the past medical expenses incurred; (4) reimburse plaintiff for overpaid child support; and (5) provide prior notice of her intention to exercise weeknight parenting time. The order also denied without prejudice plaintiff's request to enroll the children in Catholic school.
The judge also entered an order regarding defendant's motion (1) granting defendant's request for additional parenting time in part; (2) changing Susan's visitation to weekdays; and (3) denying plaintiff's request for counsel fees. The order additionally provided that no further parenting time motions would be entertained until after the parties attended mediation.
Defendant submitted her CIS on July 18, 2012, including her three most recent pay stubs, but no tax documents. On November 26, 2012, the court issued an order compelling defendant to pay plaintiff $8 per week in child support and $10 toward the arrears. The court issued its statement of reasons on January 14, 2013. In setting the support amount, the court noted "the extreme disparity in the parties' income," that defendant only worked part-time, and plaintiff's failure to provide evidence that defendant was underemployed or "capable at this point in time of earning a significantly higher salary." The court also noted defendant's limited parenting time, and the "continued complaints of [p]laintiff's interference with the [d]efendant's ability to enjoy her parenting time[.]" This appeal followed.
Plaintiff first argues the trial court erred in failing to properly analyze defendant's earning potential and impute income to defendant. Plaintiff emphasizes that defendant has a college degree and sign language skills, during the divorce proceedings he presented evidence that defendant could earn over $100,000 per year, and defendant agreed to $25,000 per year imputed income in the PSA. Plaintiff asserts that the court overlooked defendant's earning potential and her choice not to make any effort to reach that potential. As such, plaintiff claims that the judge improperly utilized the self-support reserve test in calculating defendant's child support obligation. We disagree.
The child support guidelines, set forth in Rule 5:6A, "must be used as a rebuttable presumption to establish and modify all child support orders." Schwarz v. Schwarz, 328 N.J. Super. 275, 282-83 (App. Div. 2000). "The guidelines may be modified or disregarded by the court only where good cause is shown." R. 5:6A. Where parenting is shared, but the parent of alternate residence's parenting time is "below the substantial equivalent of two or more overnights per week," the Sole-Parenting Worksheet in Appendix IX-C is utilized to calculate the child support obligation. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2603 (2014). The Sole-Parenting Worksheet requires the calculation of the self-support reserve test. Pressler & Verniero, supra, Appendix IX-C to R. 5:6A at 2644. This test is used to "[c]alculate whether the obligor's income will exceed 105% of the poverty level by subtracting the net child support obligation from the non- custodial parent's net income." Pressler & Verniero, supra, Appendix IX-B to R. 5:6A at 2621.
Consequently, "[a]n important aspect of establishing appropriate child support is determining the parent's net income." Larrison v. Larrison, 392 N.J. Super. 1, 19 (App. Div. 2007). "[W]hen a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that parent to provide for the child's needs." Caplan v. Caplan, 182 N.J. 250, 268 (2005); see also Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) ("The potential earning capacity of an individual, not his or her actual income, should be considered when determining the amount a supporting party must pay.").
The trial court should consider, when determining whether to impute income to an underemployed parent, the following:
"(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed, (2) the reason and intent for the voluntary underemployment or unemployment, (3) the availability of other assets that may be used to pay support, and (4) the ages of any children in the parent's household and child-care alternatives."
[Larrison, supra, 392 N.J. Super. at 19-20 (quoting Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2227 (2007)).]
Substantial discretion is afforded to trial courts in calculating appropriate child support awards. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). We must apply an abuse of discretion standard to a trial judge's decision to grant or deny the modification of child support. J.B. v. W.B., 215 N.J. 305, 325-26 (2013). The "'findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence . . .' in the record." Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "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.'" J.B., supra, 215 N.J. at 326 (quoting Jacoby, supra, 427 N.J. Super. at 116).
Even so, we will be "compelled to reverse the award of child support" if "we are not satisfied that it comports with governing legal standards." Foust, supra, 340 N.J. Super. at 316. Further, review of the trial court's legal conclusions is de novo, requiring no deference to the trial court's legal interpretation or the "legal consequences drawn from established facts." Jacoby, supra, 427 N.J. Super. at 116-17 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Here, plaintiff does not dispute the mechanics of the calculation of child support. Employing the applicable Sole-Parenting Worksheet, the judge used defendant's $257 gross weekly salary, which yielded a net income of $227 per week, and resulted in a preliminary determination that defendant's share of the child support was $78 per week. After applying the necessary self-support reserve test, the resulting $8 per week obligation was correctly calculated.
Rather, plaintiff charges that the judge improperly declined to impute a higher salary to defendant, which would not have caused the self-support reserve to come into play. We find that plaintiff's contention is not supported in the record. Instead, the judge's determination that plaintiff failed to adequately demonstrate that a higher salary should be imputed to defendant was supported by substantial and credible evidence. See Foust, supra, 340 N.J. Super. at 316. Despite plaintiff's allegation that defendant could make more income based on her educational background, he provided no evidence that she ever worked as a translator, is currently certified as a translator, or of her current abilities to utilize her education and experience. Indeed, in his certification, he refers to defendant showing "bizarre," "erratic," and "manic" behaviors.
In contrast, the evidence in the record, which is essentially undisputed, shows that defendant did not work during the parties' five-year marriage, gave up custody and left the state because she was destitute, was homeless upon her return to New Jersey, resided with her mother at the time of the order, made only the minimum wage, made no income in the year prior to the order, owed substantial debt including almost $5000 due to recent medical bills, and had a lengthy history of mental illness and brain surgeries. We decline to disturb the trial judge's determination. See J.B., supra, 215 N.J. at 325-26.
We also reject plaintiff's contention that the court's fact-findings and reasons were inadequate or deficient to support his child support order. While the judge's statement of reasons and amplification were not an exemplar of the findings required by Rule 1:7-4, an examination of the record, including the statements of reasons, provide a sufficient basis for the result entered. See Loro v. Del Colliano, 354 N.J. Super. 212, 220 (App. Div.), certif. denied, 174 N.J. 544 (2002). Moreover, based on this record, we are not convinced that the court's mention of the alleged visitation issues as a reason not to impute a higher salary to defendant, undermined the court's exercise of discretion, which is amply supported by relevant evidence. Again, we decline to "overturn an award of child support unless we conclude that the award was manifestly arbitrary, unreasonable, or contrary to the evidence." Ibid.
Plaintiff's remaining arguments do not 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 APPLLATE DIVISION