S.R. VS. F.R. (FM-20-1745-14, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1865-17T4

S.R.,

Plaintiff-Respondent,

v.

F.R.,

Defendant-Appellant.
_________________________

Submitted January 17, 2019 – Decided July 11, 2019

Before Judges O'Connor and Whipple.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-1745-14.

Einhorn, Harris, Ascher, Barbarito & Frost, PC,
attorneys for appellant (Mark Wechsler, of counsel and
on the briefs).

S.R., respondent pro se.

PER CURIAM
 In this post-divorce action, defendant F.R. appeals from a November 14,

2017 Family Part order, which granted certain relief plaintiff S.R. sought in a

post-judgment motion and denied most of the relief defendant sought in a

corresponding cross motion. We affirm in part, reverse in part, and remand for

further proceedings.

I

We highlight the salient facts. The parties were married in 1991. During

the marriage the parties had three children. Plaintiff was the primary caretaker

and defendant the primary wage earner, whose income supported the family. On

February 27, 2015, a final judgment of divorce (judgment) was entered after

default was entered against defendant and a default hearing held. By the time

of the divorce, one of the three children was emancipated.

Relevant to the issues on appeal, the judgment designated plaintiff the

primary caretaker of the parties' two unemancipated children. After imputing

an annual income of $24,960 to plaintiff and finding defendant earned $171,440

per year, the court ordered defendant to pay $376 per week to plaintiff in child

support for the younger daughter, pursuant to the Child Support Guidelines

(CSG), see Child Support Guidelines, Pressler & Verniero, Current N.J. Court

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Rules, Appendices IX-A to -G to R. 5:6A, www.gannlaw.com (2019), who was

still living at home.

The court did not order defendant to pay plaintiff child support for the

older daughter because she lived at the college she attended. However, the court

ordered that defendant pay eighty-four and plaintiff sixteen percent of the older

daughter's college expenses until she obtained her degree. The court's decision

on the allocation of college expenses reflected the parties' percentage share of

income at that time, as reflected on the court's CSG worksheet. The judgment

also ordered defendant to pay alimony "in an amount to be determined by the

[c]ourt," and further provided that after the amount of alimony plaintiff was to

receive was determined, defendant's obligation to pay child support would be

recalculated, as would the parties' percentage share of paying for the older

daughter's college education.

A provision in the judgment notes the parties owned two cars at the time

of the divorce and that each party took possession of one car; however, the car

defendant took was more valuable than plaintiff's. Another provision noted that,

in 2014, plaintiff liquidated an IRA in order to pay household expenses. At the

time of liquidation, the IRA had a cash value of $22,000. The judgment stated

defendant's fifty percent interest in the IRA "shall be deemed satisfied as a credit

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owed to the plaintiff for the disparity in the value of the vehicles . . . . [T]he

remainder of the [d]efendant's 50% share of the IRA shall be applied towards

his share of household expenses paid by the [p]laintiff."

On April 22, 2015, an amended final judgment of divorce (amended

judgment) was entered, which ordered defendant to pay $1155 per week in

alimony to plaintiff, effective October 24, 2014, as well as $100 per week toward

alimony arrears. The amended judgment stated defendant's child support

obligation had been recalculated based upon the fact he was ordered to pay

alimony to plaintiff, and that defendant was ordered to pay plaintiff $240 per

week in child support for the younger daughter in accordance with the CSG,

retroactive to October 24, 2014. The CSG worksheet the court utilized to

determine defendant's new child support obligation was not in the record. The

amended judgment makes no mention of whether the parties' obligation to pay

the older daughter's college expenses changed after the court ordered defendant

to pay alimony to plaintiff.

In a written opinion accompanying the amended judgment, the trial court

stated it imputed to plaintiff, a teacher's assistant, an annual salary of $24,960.

Although the court acknowledged the New Jersey Department of Labor's

Occupational Employment Statistics states that a full-time teacher's assistant

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earns on average $26,300 per year, the court, without explanation, chose to

impute an annual income of $24,960 per year to plaintiff instead.

As for his ability to earn income, the court noted defendant was a freelance

cameraman and a member of the International Alliance of Theatrical Stage

Employees Labor Union. The court also found that, in the past, defendant

earned income from renting out his equipment. Although his gross income in

2013 and 2014 was not known, defendant earned $170,546 and $171,440 in 2011

and 2012, respectively, from working as a cameraman, renting equipment, and

obtaining unemployment benefits. Because defendant's income from 2013 and

2014 was unknown, the court used his 2012 annual gross income to calcul ate

alimony and child support.

In July 2016, defendant successfully moved to reduce the amount of

alimony he was obligated to pay plaintiff. In an order dated July 8, 2016, the

trial court reduced defendant's alimony obligation from $1155 per week to $750

per week, although his obligation to pay $100 per week toward alimony arrears

continued. Defendant's child support obligation for the younger daughter,

calculated pursuant to the CSG, increased from $240 to $288 per week.

In a written decision accompanying the July 8, 2016 order, the court

acknowledged defendant's claim there had been a reduction in his income due

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to changes within his profession. The court also noted defendant produced proof

of his annual income from 2011 to 2015, which revealed his annual income over

this five-year period decreased from $171,440 to $91,970. However, the court

did not accept defendant's claim that

he is unable to earn more than $100,000.00 [per year]
because of the current state of his industry . . . . [T]he
[d]efendant's long-term employment as a camera-
operator supports a conclusion that the [d]efendant can
control the nature and extent of his employment
opportunities and earn an annual income in excess of
$100,000.00 and closer to his average income.

For purposes of calculating alimony and child support, the court imputed to

defendant an annual income of $133,955.80, the average annual income

defendant earned from 2011 to 2015. Defendant did not appeal the July 8, 2016

order.

In August 2017, plaintiff filed a motion to enforce litigant 's rights,

claiming defendant's alimony and child support arrears had climbed to

$118,817.07, and that defendant owed plaintiff $3,133.76 toward the older

daughter's college expenses. Plaintiff requested that defendant dip into a

retirement fund he received in equitable distribution to pay off the arrears.

Defendant filed a cross motion in response to plaintiff's motion. Pertinent

to the issues on appeal, defendant's principal arguments before the trial court

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were: (1) plaintiff's motion was deficient because she failed to attach a Case

Information Statement (CIS), warranting the dismissal of her motion; (2) a

change in his circumstances warranted a reduction in his alimony and child

support obligations; (3) defendant's support obligations should be calculated

based upon his income in 2017; (4) plaintiff was underemployed, warranting the

imputation of additional income; (5) his contribution toward the older daughter's

college expenses were improperly fixed at eighty-four and not fifty-three

percent; (6) he was entitled to a credit of $3,128.97 in his arrears, because

plaintiff's liquidation of the IRA in 2014 resulted in taxes he was compelled to

pay to the IRS; and (7) he is not responsible for paying the younger daughter's

college or post-secondary educational expenses.

In his certification in support of his cross motion, defendant argued, as he

had when he sought a reduction in his support obligations in July 2016, that

certain changes within his field affected his ability to earn as much income as

he had in the past. He further certified he actively searched for work, and

attached a "daily diary" in which he noted the efforts he made on various dates

from January 2017 through September 2017. Defendant's tax return for 2016

revealed his gross income that year was $71,447. According to his CIS, as of

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October 3, 2017, he realized only $18,950 in earned income and $11,180 in

unemployment benefits since the beginning of 2017.

Defendant also claimed that, immediately before leaving the marital

home, his mental health deteriorated, for which he began to receive treatment in

June 2016. He stated he was diagnosed with and medicated for post-traumatic

stress disorder, major depressive disorder, and severe generalized anxiety

disorder. Defendant attached a report from his treating psychiatrist, who stated

defendant's mental health condition negatively affects "all aspects of his daily

functioning," and has "undermined his ability to find and maintain steady

employment, despite him exhausting all efforts to obtain work." A report from

his psychotherapist expressed essentially the same opinion.

The trial court rejected defendant's argument that he had experienced a

change in circumstance warranting a reduction in his alimony and child support

obligations. In the court's written statement of reasons, it found that

"[d]efendant can control the nature and extent of his employment opportunities

and earn an annual income in excess of $100,000 and closer to his average

income of $135,000 as determined in the prior Order" of July 8, 2016. The court

further noted defendant failed to "provide proof of any efforts to seek additional

or other employment." With respect to defendant's mental health, the court

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determined defendant failed to demonstrate an inability to work because "the

medical information does not establish that [d]efendant has been deemed

disabled."

In its cross motion, defendant also contended plaintiff was

underemployed, and requested the court impute to her the $26,300 the New

Jersey Occupational Employment Statistics states is the average annual salary

for a teacher's assistant, instead of the $24,960 per year the court imputed to

plaintiff when the amended judgment was entered. The trial court denied

defendant's request because her "income was already imputed at $24,960.00 a

year."

Defendant requested that his percentage share of the older daughter's

college expenses be reduced from eighty-four to fifty-three percent, retroactive

to the day the judgment was entered. In his certification in support of his cross

motion, defendant pointed out that although the judgment states he was

responsible for eighty-four percent of the older daughter's college expenses, the

judgment further states that the "parties' respective responsibility for [the older

daughter's] college expenses is subject to adjustment pending the recalculation

of child support following the [c]ourt's determination of the [d]efendant's

alimony obligation." Thereafter, the amended judgment noted defendant's child

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support obligation was recalculated based upon the award of alimony to

plaintiff; however, the amended judgment failed to include each party's

percentage share toward child support.

In the November 14, 2017 order, the trial court granted defendant's request

to establish his pro rata share of the older daughter's college expenses at fifty-

three percent, but the court also ordered that defendant was responsible for

eighty-four percent of the older daughter's college expenses for the 2015-2016

academic year "pursuant to the order dated April 22, 2016." The April 22, 2016

order states defendant shall be responsible for eighty-four percent of the older

daughter's college expenses for the 2015-2016 academic year.

Defendant did seek reconsideration of the April 22, 2016 order, which

resulted in the July 8, 2016 order but, as reflected in the latter order, the

provision in the April 22, 2016 order directing defendant pay eighty-four percent

of the older daughter's college expenses for the 2015-2016 academic year was

not modified. On this issue, the written decision attached to the November 14,

2017 order states:

In accordance with the order dated October 26, 2017,
which corrected the child support guidelines issued
with the amended final judgment of divorce dated April
22, 2015, the defendant shall be responsible for 56% of
[the older daughter's] college expenses for the 2016-
2017 academic year[.]

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A copy of the October 26, 2017 order was not provided in the record , but it is

clear that after the amended judgment was entered, the court subsequently

ordered defendant to pay more than fifty-three percent of the older daughter's

college expenses.

In his cross motion, defendant requested any arrears he owed be credited

in the amount of $3,128.97. He claimed plaintiff failed to inform him that she

had liquidated the IRA in 2014. Unaware of the liquidation, defendant failed to

pay taxes on such funds. In 2017, the IRS contacted him and advised he owed

$12,460.56 in unpaid taxes penalties. Defendant paid over $9000 to the IRS

and, when he filed his cross motion, owed an additional $3,128.97. In his cross

motion he did not request plaintiff pay half of what he paid to the IRS, just that

she pay the remaining $3,128.97 in taxes and penalties owed to the IRS. The

trial court denied defendant's request. The court merely stated:

The defendant's interest in the IRA was addressed in the
final judgment of divorce. The defendant's share was
of the IRA was applied to the disparity in the value of
their vehicles and the remainder towards his share of
household expenses paid by plaintiff with the funds.

In his cross motion, defendant sought a ruling that he was not responsible

for any of the younger daughter's college or post-secondary educational

expenses. At the time of his application, the younger daughter was a junior in

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high school. Defendant argued he should be excused from contributing to such

expenses because the younger daughter refused to have a relationship with him.

The court denied this request on the ground it was premature. The court stated

the determination of defendant's contribution toward college expenses "should

abide the event in accordance with existing case law and statutes."

Finally, defendant requested plaintiff's motion to enforce litigant's rights

be denied because, among other things, plaintiff failed to append to her motion

an updated CIS. Defendant contended such omission mandated the dismissal of

her motion pursuant to Rule 5:5-2(a). The court determined a CIS was not

required given the kind of relief plaintiff sought in her application.

II

On appeal, defendant asserts the following arguments for our
consideration.

POINT I: DEFENDANT-APPELLANT HAS
ESTABLISHED A PRIMA FACIE SHOWING OF
CHANGED CIRCUMSTANCES WARRANTING A
MODIFICATION OF HIS SUPPORT OBLIGATION.

POINT II: DEFENDANT-APPELLANT HAS MADE A
SHOWING SUFFICIENT TO WARRANT A
SUSPENSION OF HIS ALIMONY OBLIGATION AND
DISCOVERY FOLLOWED BY A PLENARY
HEARING.

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POINT III: THIS MATTER SHOULD BE REMANDED
TO A DIFFERENT JUDGE.

A. The court's refusal to correct an obvious error in regard to
the ratio of contribution for college expenses is error and should
be reversed. Additionally, the court committed error in that it
has never conducted any analysis of the factors set forth in
Newburgh v. Arrigo, [88 N.J. 529, 545 (1982)] particularly the
ability of the parties to pay.

B. The court's consideration of plaintiff-respondent's motion
in the absence of the filing of a case information statement was
improper.

C. The court's consideration and granting of plaintiff-
respondent's request for a lump sum payment to be made from
defendant-appellant's retirement asset which had already been
distributed in the divorce was error and inequitable.

D. The court's disregard of defendant-appellant's substantial
proofs respecting his income coupled with the court's reference
to defendant-appellant operating a business, having a girlfriend,
and having a place to live is unsupported by the record and goes
against the weight of the evidence.

E. The court failed to make any findings respecting
defendant-appellant's mental health vis-à-vis his ability to
obtain/maintain employment.

F. The court's justification for plaintiff-respondent having
forged defendant-appellant's signature in order to liquidate his
IRA and its failure to address the resulting tax and penalty
consequences that have fallen upon defendant-appellant is
inequitable.

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 G. The court's proactive pursuit of facts and documents by
way of letter was improper.
Family Part rulings on applications to modify child support and alimony

are entitled to our deference on appeal absent a clear abuse of discretion. Jacoby

v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); J.E.V. v. K.V., 426 N.J.

Super. 475, 485 (App. Div. 2012). An abuse of discretion "arises when a

decision is made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Jacoby, 427 N.J.

Super. at 116 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002)). The findings of the Family Part judge should not be disturbed unless

they are wholly unsupported as to lead to a denial of justice. Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Such findings "are

considered binding on appeal when supported by adequate, substantial and

credible evidence." Id. at 484.

Alimony and child support may be modified by a court upon a showing of

"changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). It is within

the sound discretion of a Family Part judge to determine whether to modify an

alimony or child support obligation based upon such a showing. Innes v. Innes,

117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div.

2006). The party seeking modification has the burden of showing changed

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circumstances. Lepis, 83 N.J. at 157. Each motion to modify "rests upon its

own particular footing and the appellate court must give due recognition to the

wide discretion which our law rightly affords to the trial judges who deal with

these matters." Larbig, 384 N.J. Super. at 21 (quoting Martindell v. Martindell,

21 N.J. 341, 355 (1956)).

We turn to the arguments defendant asserts on appeal. He contends the

court erred when it failed to deny plaintiff's motion. Defendant argues that,

pursuant to Rule 5:5-2(a), plaintiff was required to attach a CIS to her motion

and that the remedy for such omission was the denial of such motion. We

disagree. Rule 5:5-2(a) provides in pertinent part:

The case information statement required by this rule
shall be filed and served in all contested family actions,
except summary actions, in which there is any issue as
to custody, support, alimony or equitable distribution.
With respect to summary actions, R. 5:5-3 shall apply.
In all other family actions, a case information statement
may be required by order on motion of the court or a
party.

When plaintiff filed her motion, there was no contested family action

pending. All matters pertaining to custody, support, alimony or equitable

distribution had been decided either in the judgment, amended judgment, or

post-judgment motions and were no longer contested. Plaintiff's motion was

merely to enforce some of the provisions in the latter judgments and orders.

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Therefore, the court was not required to deny her motion because she failed to

submit a CIS.

Defendant argues the trial court erred when it denied his request to order

plaintiff to contribute toward the tax liability incurred as a result of the

liquidation of the IRA. The IRA was a joint asset the trial court equitably

distributed in the judgment. Defendant does not challenge such distribution; he

merely seeks to have plaintiff contribute toward the tax liability the IRS imposed

upon him – well after the entry of both judgments – as a result of that liquidation.

Without providing any explanation, the trial court denied defendant 's request.

A trial court in a divorce matter has the authority to allocate marital assets

and debt between a husband and wife. See Ionno v. Ionno, 148 N.J. Super. 259,

262 (App. Div. 1977). When dividing marital assets, the court must generally

"take into account the liabilities as well as the assets of the parties. In other

words, if the assets are to be divided between the parties, the debts incurred in

obtaining those assets should likewise be allocated between the parties." Monte

v. Monte, 212 N.J. Super. 557, 567 (App. Div. 1986) (citation omitted). Here,

because it did not allocate this debt, we remand this matter to the trial court so

that it may address and allocate this particular liability between the parties.

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 Defendant maintains the court erred when it ordered him to use a portion

of a retirement asset acquired through equitable distribution to satisfy alimony

arrears. He contends the following language in N.J.S.A. 2A:34-23(b) supports

his argument: "[w]hen a share of a retirement benefit is treated as an asset for

purposes of equitable distribution, the court shall not consider income generated

thereafter by that share for purposes of determining alimony."

Based upon the record before us, it appears this argument was not raised

before the trial court and, "[g]enerally, an appellate court will not consider

issues, even constitutional ones, which were not raised below." State v. Galicia,

210 N.J. 364, 383 (2012). Even if this issue had been raised, the trial court did

not address this question in its opinion and, thus, we decline to do so in the first

instance. See Duddy v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 221 (App.

Div. 2011).

Defendant complains the trial court did not consider the factors in

Newburgh, 88 N.J. at 545 (1982), before it determined how to allocate the cost

of the older daughter's college education between the parties. However, when

before the trial court, defendant had no objection to allocating the costs of the

older daughter's college education between the parties on a percentage basis, as

long as his share of those expenses was limited to fifty-three percent. He did

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not object to the fact the court did not make a determination of the parties'

obligation after considering the twelve factors in Newburgh. Because the latter

issue was not raised before the trial court, we decline to consider it, as well. See

Galicia, 210 N.J. at 383.

Defendant contends the court erred when it imputed to plaintiff an annual

income of $24,960, rather than the income the New Jersey Occupational

Employment Statistics states is the average annual salary of a teacher's assistant

working full-time. We agree. On remand, the amount of child support defendant

is to pay pursuant to the CSG shall be recalculated, and plaintiff's earned income

shall be that which the Occupational Employment Statistics states is the average

annual salary of a full-time teacher's assistant.

We have carefully considered defendant's remaining arguments and

determine they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.

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