NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4565-12T4 JORDANA ELROM, APPROVED FOR PUBLICATION Plaintiff-Respondent, February 23, 2015 v. APPELLATE DIVISION ELAD ELROM,
Defendant-Appellant. _______________________________
Submitted November 3, 2014 - Decided February 23, 2015
Before Judges Lihotz, St. John and Rothstadt.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2214-11.
Townsend, Tomaio & Newmark, LLC, attorneys for appellant (John E. Clancy, on the briefs).
Jordana Elrom, respondent pro se.
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Defendant, Elad Elrom, appeals from provisions set forth in
a November 19, 2012 final judgment of divorce (FJOD), entered
following trial. He challenges the imputation of income to the
parties for the purpose of calculating child support and limited
duration alimony payable to plaintiff Jordana Elrom. Defendant also challenges supplemental child support added for child care
and extracurricular activities, the allocation of assets
equitably distributed, and appeals from a February 21, 2013
order denying reconsideration of the FJOD's terms.
Following our review of the issues raised on appeal, in
light of the record and the applicable law, we agree the judge
erred in increasing child support by work-related child-care
costs during a period of plaintiff's unemployment and the cost
of the children's everyday extracurricular activity expenses,
which generally are included in the amount of child support. In
all other respects, including the imputation of income, we
affirm.
I.
The facts pertinent to our review are taken from the five-
day trial record. The parties appeared self-represented and
presented testimony regarding their incomes, along with fact
testimony from plaintiff's father and expert testimony.
Numerous documents were introduced into evidence regarding the
parties' respective incomes, expenses, and assets.
The parties, who are now thirty-eight, were married in
February 2005 and separated in September 2010. They have two
young children, who were born in 2008 and 2010. Prior Family
Division proceedings between the parties were consolidated into
2 A-4565-12T4 this matter (FD-02-435-11) or dismissed. Although the parties
litigated custody and parenting time at trial, they successfully
mediated an agreement, largely resolving custody issues.
Plaintiff is an attorney, licensed to practice in New York
and New Jersey. When she married defendant, she worked in
Newark earning an annual salary of $102,000. Thereafter, she
took a position with a New York firm, earning $175,000 per year.
In early 2008, just prior to the birth of the parties' first
child, plaintiff was laid off. She testified the parties agreed
she would stay home to raise the children, possibly working
part-time. In 2009, plaintiff commenced part-time employment,
working ten to fifteen hours per week. When the parties
separated, she earned $67.50 per hour, working approximately
twenty-six hours per week. Plaintiff next secured an
associate's position earning $80,640, but lost her job prior to
trial. Asserting child-care obligations required she "focus her
job search on New Jersey firms," plaintiff intended to seek a
New Jersey position and asked "the [c]ourt impute [to] her a
salary of $80,640.00."
Defendant is a software engineer, technical writer, web
developer, and entrepreneur. In the past, he held positions
with Sigma, HBO, Weight Watchers, and MTV. During an earlier
non-dissolution matter, he earned $193,375 per year as a
3 A-4565-12T4 consultant for HBO. Before trial, he changed jobs, and was
employed as the chief technical officer for ChatAnd Inc.
(ChatAnd), earning a base salary of $120,000, with potential to
earn as much as $295,000. Defendant also owned Elrom LLC, which
performed consulting services, sponsored an annual technology
trade show, and participated in several start-up companies.
At trial, plaintiff produced documents evincing defendant's
income, and explained he was not compliant with her discovery
demands. Plaintiff asserted during the marriage, defendant
received income from "clients on the side" and royalties from
three books he authored. Plaintiff also discovered defendant
started a company in Las Vegas on February 2, 2012, called
Effective Idea, LLC, and withdrew funds from Elrom LLC's
account, which he transferred to an account at Banca Privada
d'Andorra. Defendant stipulated the Andorra account held
$67,978.
As to the marital standard of living, plaintiff explained
the parties lived an "upper middle class, at times, lavish
lifestyle" before the children were born. They owned a New York
City apartment. When they moved to Englewood in anticipation of
the birth of their second child, they rented their apartment.
After separating, defendant moved to New York City, while
plaintiff and the children moved into her parents' home in
4 A-4565-12T4 Montville.1 Plaintiff had residential custody of the children.
She sought alimony and listed her actual expenses "to the penny"
in an amended case information statement (CIS).
Larry Frankel, CPA, CFF, plaintiff's expert forensic
accountant, examined monies deposited into the parties' various
bank accounts to calculate defendant's annual income. Frankel
concluded deposits into Elrom LLC's account from January 2009 to
February 2012, totaled $903,241. Reducing the sums by an
estimated twenty to thirty percent for overhead, he asserted
profit, exclusive of taxes, amounted to seventy to eighty
percent.
Defendant countered with testimony from his forensic
employability expert Gary Young, whose vocational evaluations
addressed the likely earnings of the parties. Young's reports
were not provided in the appellate record.
Young concluded defendant was likely to earn $120,000
annually as a software engineer and technical writer. He based
this opinion on his review of defendant's resume and a telephone
interview, but acknowledged he was not provided with defendant's
ChatAnd contract, and did not consider defendant's earning
capacity as a consultant.
1 Plaintiff testified she and the children were evicted from the Englewood apartment because defendant failed to satisfy his portion of the rent.
5 A-4565-12T4 Young also offered testimony regarding plaintiff's
employability, although he did not interview her. After
considering her degrees and bar admissions, he conducted
research using Internet sources and suggested her earning
possibilities, primarily in New York City, ranged from "$108,740
to $177,850." Young did not factor parenting responsibilities,
the children's special needs, or day care availability into this
calculus.
Defendant next offered Jonathan Klopchin, a credentialed IT
recruiter. His report is not included in the record.
Evaluating defendant's experience with "Flash, Flex, Front and
implementation" technologies, which Klopchin explained were
declining in demand, he asserted a full-time Flex engineer could
make $100,000 to $150,000, although some Flex developers could
garner more than $200,000, which was "more the exception than
the rule." He stated a Flex consultant would be "fortunate to
get [$]90 an hour" and "a lead developer" could earn $165,000.
During defendant's direct testimony, he asserted the actual
gross receipts of Elrom LLC for 2010 were merely $145,000. He
argued Frankel's use of deposits inflated estimated income
because it included rental receipts from the New York City
apartment and funds withdrawn but re-deposited. However,
defendant later admitted he received receipts of $19,000 in
6 A-4565-12T4 royalties and $88,000 from consulting, and spent $11,000 in
payroll expenses. The sums, along with his salary, make his
total 2010 income $252,000. Defendant discussed his reported
receipts in 2011, as captured on Schedule C of his federal tax
return, which totaled $250,000.2 He mentioned $206,000 in
consulting fees from HBO, a position he lost. Defendant also
asserted ChatAnd just terminated his services, and his last
paycheck was July 27, 2012. Defendant suggested $120,000 per
year should be imputed to him, as opined by Young.
Following trial, the judge issued a written opinion
granting plaintiff's request for divorce. Addressing the
collateral issues arising upon the dissolution of the marriage,
the judgment awarded plaintiff limited duration alimony for
three years in the amount of $1,000 per week "based upon the
differential in their earnings, [p]laintiff's needs and
[d]efendant's ability to pay." The judgment further ordered
defendant to pay child support in the amount of $697 per week,
which included insurance premiums and work-related child care,
plus fifty percent of the children's uncovered medical costs,
exceeding $250 per child, and fifty percent of the children's
2 Defendant introduced several documents during his testimony; however, the record exhibits do not contain the trial markings making it difficult to reconcile his testimony with the record.
7 A-4565-12T4 extracurricular and sporting activity fees, provided defendant
consents to their participation in advance. Defendant received
an $8,702 credit for overpayment of work-related child-care
expenses.
In calculating support, the judge found plaintiff's income
was represented by her last full-time job, as an associate
attorney in New Jersey, and imputed $80,640 per year. The judge
rejected defendant's argument to limit his earning ability to
$120,000. Rather, after considering defendant's historic
earnings, which were "readily ascertainable from his limited
liability company and personal bank statements over the past
three years . . . as examined and quantified by [p]laintiff's
forensic accounting expert, [Frankel]," the judge imputed gross
income to defendant of $230,731.42 per year, calculating the
three-year average gross receipts and factoring an "expense-out
rate of 20%."3
Equitably distributing the parties' marital assets, she
ordered: an equal division of the bank account associated with
rental receipts from their former New York City apartment;
plaintiff receive $11,000 to equalize the values of the parties'
3 The judge found defendant's business gross receipts were $286,313.71 in 2009, $321,614.41 in 2010, and $257,314.69 in 2011, for an average of $288,414.27 over this three-year period.
8 A-4565-12T4 respective automobiles; plaintiff retain her three retirement
accounts and personal property; and defendant retain Elrom LLC,
any other start-up companies in which he held an interest, and
his personal property.
Both parties moved for reconsideration of the provisions of
the FJOD. The motions were denied and this appeal followed.4
On appeal, defendant attacks the imputed income levels for
each party, arguing the income level imputed to him was too high
and the level imputed to plaintiff was too low. Defendant also
argues the judge erred in adding child-care and the children's
extracurricular activity costs as additional child support.
Finally, defendant challenges the equitable division of the
parties' assets. We consider these issues.
II.
Our review of a trial judge's factual findings, following a
non-jury trial, is limited. Cesare v. Cesare, 154 N.J. 394, 411
(1998). Generally, "findings by the trial court are binding on
appeal when supported by adequate, substantial, credible
evidence." Id. at 411-12. In matrimonial matters, this
"[d]eference is especially appropriate when the evidence is
largely testimonial and involves questions of credibility," id.
4 On July 25, 2013, we granted defendant's motion to file his appeal as within time.
9 A-4565-12T4 at 412 (citation and internal quotation marks omitted), because
the trial judge has "a feel of the case" and is in the best
position to "make first-hand credibility judgments about the
witnesses who appear on the stand." N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008). Review of the cold
record alone "can never adequately convey the actual happenings
in a courtroom." N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448 (2012) (citing E.P., supra, 196 N.J. at 104).
Reversal is warranted only when a mistake must have been
made because the trial court's factual findings are "'so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice . . . .'" Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting
Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App.
Div.), certif. denied, 40 N.J. 221 (1963)). Consequently, when
a reviewing court concludes there is satisfactory evidentiary
support for the trial court's findings, "'its task is complete
and it should not disturb the result . . . .'" Beck v. Beck, 86
N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162
(1964)). "Deference is appropriately accorded to factfinding;
however, the trial judge's legal conclusions, and the
application of those conclusions to the facts, are subject to
10 A-4565-12T4 our plenary review." Reese v. Weis, 430 N.J. Super. 552, 568
(App. Div. 2013). Finally, legal conclusions are always
reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
A.
Defendant urges income imputation is reserved for parties
who, without just cause, are intentionally and voluntarily
unemployed or underemployed. Because he was working, he argues
his circumstances do not trigger income imputation and his
salary should have been accepted as an appropriate earning level
when fixing support. Defendant also argues imputation
principles require an increase in plaintiff's income, not mere
acceptance of the modest salary she last earned. We reject the
legal premise as applied, and note the facts of record belie
defendant's contentions.
"'Imputation of income is a discretionary matter not
capable of precise or exact determination[,] but rather
require[es] a trial judge to realistically appraise capacity to
earn and job availability.'" Gnall v. Gnall, 432 N.J. Super.
129, 158 (App. Div. 2013) (quoting Storey v. Storey, 373 N.J.
Super. 464, 474 (App. Div. 2004)), certif. granted, 217 N.J. 52
(2014). While an "abuse of discretion . . . defies precise
definition," we will not reverse the decision absent a finding
11 A-4565-12T4 the judge's decision "rested on an impermissible basis,"
considered "irrelevant or inappropriate factors," Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citations and
internal quotation marks omitted), "failed to consider
controlling legal principles or made findings inconsistent with
or unsupported by competent evidence." Storey, supra, 373 N.J.
Super. at 479.
Certainly, the court is authorized to impute income for the
purpose of determining child support when a parent is found to
be voluntarily unemployed or underemployed without cause. See
Caplan v. Caplan, 182 N.J. 250, 268-70 (2005) (stating parent's
ability to earn income, or "his [or her] human capital," should
be "theoretically activated for the purpose of evaluating his
[or her] support obligation" and the amount of income that
"should be imputed to him [or her]"). "'In treating the matter
of support, our courts have always looked beyond the [parent's]
claims of limited resources and economic opportunity. They have
gone far to compel a parent to do what in equity and good
conscience should be done for [the] children.'" Lynn v. Lynn,
165 N.J. Super. 328, 341 (App. Div.) (quoting Mowery v. Mowery,
38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J.
307 (1956)), certif. denied, 81 N.J. 52 (1979). Thus, a "'court
has every right to appraise realistically [a] defendant's
12 A-4565-12T4 potential earning power,'" ibid. (quoting Mowery, supra, 38 N.J.
Super. at 102), and examine "potential earning capacity" rather
than actual income, when imputing the ability to pay support.
Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div.
1999).
This authority is incorporated in the New Jersey Child
Support Guidelines (Guidelines). See R. 5:6A (adopting
Guidelines set forth in Appendix IX-A to the Court Rules). The
Guidelines state:
[i]f the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:
a. impute income based on potential employment and earning capacity using the parent's work history, occupational quali- fications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);
b. if potential earnings cannot be determined, impute income based on the parent's most recent wage or benefit record . . . .
[Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, comment
13 A-4565-12T4 12 on Appendix IX-A to R. 5:6A at 2635 (2015).]
These legal precepts equally apply when establishing a
party's obligation to pay alimony. See Tannen v. Tannen, 416
N.J. Super. 248, 261 (App. Div. 2010) (noting a trial judge "may
impute income" in the process of "determining an appropriate
alimony award"), aff'd o.b., 208 N.J. 409 (2011); Storey, supra,
373 N.J. Super. at 474-80 (imputing income to obligor based on
earning capacity despite actual job earning a lower income).
"[O]ne cannot find himself in, and choose to remain in, a
position where he has diminished or no earning capacity and
expect to be relieved of or to be able to ignore the obligations
of support to one's family." Arribi v Arribi, 186 N.J. Super.
116, 118 (Ch. Div. 1982). See also Gnall, supra, 432 N.J.
Super. at 159 (affirming imputation of income to party based on
past salary as computer programmer despite a desire to work as a
teacher for lower pay).
Further, "failure . . . to provide adequate financial
information place[s] the hearing judge in a position where he
[or she] ha[s] to . . . realistically impute income." Tash v.
Tash, 353 N.J. Super. 94, 99 (App. Div. 2002). Imputation may
also be justified when examining income reported by self-
employed obligors, who control the means and the method of their
earnings. See Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29
14 A-4565-12T4 (App. Div. 2009) (noting a self-employed obligor is "'in a
better position to present an unrealistic picture of his or her
actual income than a W-2 earner'" (quoting Larbig v. Larbig, 384
N.J. Super. 17, 23 (App. Div. 2006))); Platt v. Platt, 384 N.J.
Super. 418, 426-27 (App. Div. 2006) (affirming court's rejection
of last annual income of self-employed defendant in favor of
imputing income). Accordingly, "[b]oth when setting child
support and in reaching a proper alimony award, a judge must
examine not only each party's income, but also his or her
earning ability." Gnall, supra, 432 N.J. Super. at 159.
We focus on the facts supporting imputation. Contrary to
defendant's current claims of full-time employment, he
specifically testified he was released from his position at
ChatAnd. When pressed on whether his circumstances would change
once ChatAnd received requested financing, defendant insisted
his employment was terminated.
Historically, defendant received wages and other payments
from one main company, such as Sigma, HBO, and ChatAnd, along
with royalties and separate consulting fees. The level of
earnings proffered by Frankel, who analyzed defendant's business
deposits, along with defendant concessions, evinced his 2010
gross income of at least $252,000; 2011 fees from HBO alone were
$206,000 and reported gross receipts totaled $250,000.
15 A-4565-12T4 Additional unrefuted proofs showed defendant received
supplemental earnings, not only from self-employment through
consulting, but also reoccurring royalty receipts.
Significant to rejecting defendant's suggested earnings
level was the trial judge's credibility findings. In light of
the documented historic earnings, the judge found defendant
"attempted to portray himself as lacking the skills and
education to sustain a salary in the $250,000.00 range, when all
the evidence is to the contrary." Further, she rejected as
unsupported defendant's claim he accepted the lower salary
position at ChatAnd to spend more time with the children.
Several times in her opinion she found defendant was being
dishonest with the court.
The judge considered and rejected the testimony of the
defendant's experts. Young's opinion defendant might earn
$80,000 to $100,000 was labeled "borderline preposterous in
light of the documented proofs that [d]efendant's income has
been 2.5 to 3 times more [than that amount] for the past three
years." Young ignored defendant's employability and earnings as
a consultant, and his employment contract, allowing possible
earnings up to $295,000. Even Klopchin testified defendant's
salary range was higher than defendant's and Young's estimates.
Nevertheless, the judge rejected the expert's suggested earning
16 A-4565-12T4 level simply because for years, defendant's salary always
exceeded Klopchin's estimates.
In light of all of this evidence, we reject as factually
unsubstantiated and legally insufficient the notion imputation
does not apply when determining this defendant's income because
he held a full-time position. We determine the evidence
supports the judge's findings that defendant's field of
expertise, as well as his employment and salary history,
demonstrate a substantial earning capacity, well in excess of
his last documented base salary of $120,000 per year, and
provided a sound basis to impute additional income.
We further discern no abuse of discretion in using a three-
year average of defendant's earnings from all sources,
demonstrated by deposits into his business account. Overall, we
conclude this was a fair and reasonable methodology to fix an
appropriate level of income for consideration of support based
on "sufficient credible evidence present in the record after
consideration of the proofs as a whole." Rolnick v. Rolnick,
262 N.J. Super. 343, 360 (App. Div. 1993) (citation and internal
quotation marks omitted).
Defendant alternatively argues the court should have
appointed an expert to determine his earning capacity, because
Frankel's use of deposits and an estimated overhead expense was
17 A-4565-12T4 hypothetical and failed to consider his actual earnings and
expenses. We disagree.
Although the court may appoint an expert to resolve an
economic issue, R. 5:3-3(c), defendant had an affirmative
obligation to provide the requested discovery, which included
proof of his earnings and expenses through employment and his
closely held businesses. Defendant controlled the documentation
on this issue and chose not to fully reveal all the facts.
Defendant even chose to not provide relevant facts to his
retained experts, resulting in a distorted analysis.
Defendant's lack of credibility, demonstrated by his refusal to
disclose information or respond to inquiries, was properly
weighed in rejecting his claims of limited earnings. See
Cesare, supra, 154 N.J. at 412. Moreover, the judge's reliance
on plaintiff's exhibits, Frankel's expert opinion, and
defendant's own admissions, provided substantial credible
evidence to impute income without the need to appoint a court
expert.
Defendant next argues the judge abused her discretion when
imputing income to plaintiff. Defendant notes plaintiff earned
as much as $175,000 as an attorney in New York City. Further,
he relies on Young's testimony stating attorneys in New York
18 A-4565-12T4 City can earn between $108,000 and $178,850. He thus asserts
use of $80,640 per year was error. We reject these arguments.
At trial, plaintiff was unemployed after being "dismissed"
from her job. Prior to obtaining that position, she worked
part-time. Her last full-time New York City job was in 2008,
four years prior to trial. During the intervening years,
plaintiff bore two children and, since separation served as the
primary residential parent. The parties' children are young:
one is seven and has special medical needs because the child is
"severely allergic to dairy, eggs, nuts and seeds[,]" and the
other is only four. Defendant's parenting time, set forth in
the FJOD, is limited to seven and one-half hours on alternate
Saturdays and Sundays, with no parenting time during the
workweek. Taken together, these facts support the imputed
income level determined by the trial judge.
Considerations involving children must be weighed when
imputing income. The first factor listed by the Legislature in
guiding a judicial determination of a fair child-support award
is serving the "[n]eeds of the child . . . ." N.J.S.A. 2A:34-
23(a)(1). Also, the Guidelines discuss the need to account for
young children's needs when imputing income to the parent of
primary residence, stating:
In determining whether income should be imputed to a parent and the amount of such
19 A-4565-12T4 income, the court should consider: (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. . . . When imputing income to a parent who is caring for young children, the parent's income share of child-care costs necessary to allow that person to work outside the home shall be deducted from the imputed income.
[Pressler & Verniero, supra, comment 12 on Appendix IX-A to R. 5:6A at 2635.]
On this issue, the Supreme Court has "noted that '[t]he key to
both the [G]uidelines and the statutory factors is flexibility
and the best interest of children.'" Caplan, supra, 182 N.J. at
266 (first alteration in original) (quoting Pascale v. Pascale,
140 N.J. 583, 594 (1995)). The importance of addressing a
child's needs because of health or tender years may dictate the
proximity of parental employment.
Finding plaintiff accessible to address the children's
needs "paramount," the judge determined plaintiff's decision to
limit her employment search to New Jersey was reasonable.
Plaintiff's sole responsibility for the children's care during
the workweek and a need to be available if the older child
suffers anaphylaxis support this decision. We agree the
children's needs were properly weighed and found to limit
20 A-4565-12T4 plaintiff's work schedule and confine her employment search to
New Jersey.
Young's testimony regarding plaintiff's earning capacity
was rejected by the trial judge for several reasons. First, the
trial judge noted Young had no experience in the legal field.
Second, he "conducted little if no research [and] failed to test
plaintiff," "admitting that he did nothing more than an internet
engine search of New York job opportunities." Third, Young
"failed to consider [p]laintiff's parenting responsibilities and
desire to work within New Jersey to remain in close proximity to
the children," and, therefore, eliminated consideration of New
Jersey opportunities. Finally, Young's evaluation did not
examine "[p]laintiff's skill set [] in the financial and banking
areas," a legal specialty he admitted put her at "a disadvantage
in today's market," because of limited available positions.
We determine the amount of wages imputed to plaintiff was
based on her immediate prior position with a large New Jersey
firm, headquartered in a major city. This is appropriate.
Young's testimony was properly rejected as a generalized
statement of New York City attorney wages, rather than an
opinion of what plaintiff could earn. Accordingly, we find no
abuse of discretion in imputing plaintiff's income as guided by
her past wages.
21 A-4565-12T4 B.
Challenging the child support award, defendant asserts the
judge erred by requiring him to contribute to what he
characterized as "exorbitant child-care expenses" at a time
plaintiff was unemployed, and to pay, as additional support,
one-half the cost of the children's extracurricular activities.
Plaintiff acknowledged she was not working, but insisted "[t]he
need for childcare was evident," rationalizing she was "consumed
with an intense, though unsuccessful search for employment" and
"preparation for trial," which she characterized as "a full-time
job." Finally, plaintiff urged the need for child care to
prevent disruption to the children's "established routine" and
because preschool "space was limited," making it "impossible to
obtain a spot again if either [child] was taken out for a period
of time."
Following our review, we find plaintiff's assertions
unavailing. We agree with defendant the judge erroneously added
child-care and extracurricular activity costs as additional
support.
The Guidelines state: "The average cost of child care,
including day camp in lieu of child care, is not factored into
in the schedules. The net cost (after tax credits) of work-
related child care should be added to the basic obligation if
22 A-4565-12T4 incurred." Pressler & Verniero, supra, comment 9 on Appendix
IX-A to R. 5:6A at 2632. The Guidelines do not sanction child-
care expenses as additional support when a party is unemployed.
Ibid. Rather, the Guidelines' recognition of child care is
factored when imputing income to the custodial parent. Pressler
& Verniero, supra, comment 12 on Appendix IX-A to R. 5:6A at
2635. Thus, an equitable adjustment to the custodial parent's
imputed earnings accounts for the economic reality of parental
employment.
As to the cost of children's activities, the Guidelines
specify a child support award includes entertainment
expenditures, specifically "[f]ees, memberships and admissions
to sports, recreational, or social events, lessons or
instructions, movie rentals, televisions, mobile devices, sound
equipment, pets, hobbies, toys, playground equipment,
photographic equipment, film processing, video games, and
recreational, exercise or sports equipment." Pressler &
Verniero, supra, comment 8 on Appendix IX-A to R. 5:6A at 2631-
32. Guidelines support may be supplemented by court approved
extraordinary expenses, which are
predictable and recurring expenses for children that may not be incurred by average or intact families such as private elementary or secondary education, special needs of gifted or disabled children, and NCP/PAR time transportation expenses. The
23 A-4565-12T4 addition of these expenses to the basic obligation must be approved by the court. If incurred, special expenses that are not predictable and recurring should be shared by the parents in proportion to their relative incomes (i.e., the sharing of these expenses should be addressed in the general language of the order or judgment). Special expenses not included in the award should be paid directly to the parent who made or will make the expenditure or to the provider of the goods or services.
[Pressler & Verniero, supra, comment 9 on Appendix IX-A to R. 5:6A at 2633.]
Finally, use of the Guidelines is rebuttable, as "[t]he
[G]uidelines may be modified or disregarded by the court []
where good cause is shown," including "the presence of other
relevant factors which may make the [G]uidelines inapplicable or
subject to modification . . . ." R. 5:6A.
In her opinion, the trial judge did not explain why she
deviated from the Guidelines by adding child-care and
extracurricular activity costs as supplemental support.
Reviewing the record we find plaintiff's assertions of need were
not evidentially supported; they merely reflect her opinion.
Such testimony fails to establish the "good cause" necessary for
disregarding the Guidelines provisions. Ibid. Further, the
record is silent on a timeline for plaintiff's resumption of
full-time employment, or her specific efforts to resume working.
In light of this record, we do not find a legal basis to require
24 A-4565-12T4 payment of child-care expenses. The costs could be added as
additional support once plaintiff resumes employment. At the
same time, the court's calculation of child support failed to
reduce plaintiff's imputed income by her share of imputed child-
care expenses.
In her merit's brief, plaintiff seeks to validate the
inclusion of child-care expenses by suggesting the sums
represent extra support authorized because the parties' incomes
exceed the maximum net income to which the Guidelines apply.
See Pressler & Verniero, supra, Appendix IX-F to R. 5:6A at 2708
(showing the maximum combined net weekly income of parents
listed on the schedule for computing Guidelines support is
$3,600). Plaintiff correctly states the judge has discretion to
award supplemental support when net income exceeds the specified
gross income threshold of $187,200.5 See Pressler & Verniero,
supra, comment 20 on Appendix IX-A to R. 5:6A at 2645. See also
Isaacson v. Isaacson, 348 N.J. Super. 560, 579-80 (App. Div.)
("We have generally recognized that where the parties have the
financial wherewithal to provide for their children, the
5 The Guidelines provide "the court shall apply the [G]uidelines up to $187,200 and supplement the [G]uidelines- 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." Pressler & Verniero, supra, comment 20 on Appendix IX-A to R. 5:6A at 2645.
25 A-4565-12T4 children are entitled to the benefit of financial advantages
available to them. . . . Children are entitled to not only bare
necessities, but a supporting parent has the obligation to share
with his children the benefit of his financial achievement."
(citations omitted)), certif. denied, 174 N.J. 364 (2002).
However, the judge's opinion, although thoroughly addressing the
underpinnings supporting her conclusion on other issues, is
silent on the need for or basis of imposing supplemental
"Rule 1:7-4 requires a judge to provide findings of fact
and conclusions of law on every [decision] decided by a written
order that is appealable by right." Fodero v. Fodero, 355 N.J.
Super. 168, 170 (App. Div. 2002). See R. 1:7-4 (requiring a
trial judge to accompany all opinions with findings of fact and
conclusions of law). The omission of critical factual findings,
supporting the basis to supplement the Guidelines support award,
impedes our review and requires a remand limited to this issue.
See Ducey v. Ducey, 424 N.J. Super. 68, 74 (App. Div. 2012).
C.
Defendant next suggests the court failed to make adequate
findings of fact and conclusions of law regarding its
distribution of the parties' marital property. Defendant urges
reversal of FJOD provisions permitting plaintiff to retain her
26 A-4565-12T4 retirement accounts and permitting each party to retain the
marital property in his or her possession. We reject these
arguments.
"[T]he goal of equitable distribution . . . is to effect a
fair and just division of marital [property]." Steneken v.
Steneken, 183 N.J. 290, 299 (2005) (citation and internal
quotation marks omitted). To fashion an equitable distribution
award, the trial judge must identify the marital assets,
determine the value of each asset, and then decide "how such
allocation can most equitably be made." Rothman v. Rothman, 65
N.J. 219, 232 (1974). In addition, the judge must consider, but
is not limited to, the sixteen statutory factors set forth in
N.J.S.A. 2A:34-23.1. Fashioning an equitable distribution of
marital assets and debts requires more than simply "mechanical
division"; it requires a "weighing of the many considerations
and circumstances . . . presented in each case." Stout v.
Stout, 155 N.J. Super. 196, 205 (App. Div. 1977).
The trial judge properly reviewed all the evidence and
performed the three-step Rothman analysis. Specifically
discussing plaintiff's IRA and two 401(k) accounts, the judge
noted "significant portions," that is two of three accounts,
were "pre-marital," and not subject to equitable distribution.
See Painter v. Painter, 65 N.J. 196, 214 (1974) ("[A]ny property
27 A-4565-12T4 owned . . . at the time of marriage will remain [] separate
property of such spouse and . . . will not qualify as an asset
eligible for distribution."). The third account resulted from a
job held for approximately fourteen months. The court
acknowledged the exact values of plaintiff's retirement assets
were "[u]nknown" and, also stated "[n]o evidence was presented
as to the value of [d]efendant's . . . companies."
Defendant identifies nothing in this record to refute the
judge's conclusions the assets held in the parties' respective
possession had limited value and, therefore, should be offset.
Her opinion noted "the parties agree that there is little by way
of assets or liabilities to divide." On this record, we cannot
conclude the judge erred in implementing the practical approach
of offsetting these minimal assets.
Regarding personal property, the parties separated in 2010.
Each argued the other took significant personalty. The judge
found the parties' respective assertions of undivided assets
were unsupported. Specifically, defendant offered "[n]o proofs
as to the value of the furniture or wedding gifts" he claimed
plaintiff took, and plaintiff did not provide support for her
claims defendant retained a Rolex watch, a Tiffany wedding band,
and expensive electronics (although she produced an email
exchange showing defendant took the marital bedroom and dining
28 A-4565-12T4 set). Following review, with the proofs in equipoise, we find
no error in denying additional relief. Pacifico v. Pacifico,
190 N.J. 258, 269 (2007).
In light of our opinion, we need not separately review the
appeal of the order denying reconsideration. As noted, the
judge's findings regarding imputation of income to fix support
will not be disturbed, except sums added as supplemental
support, which must be vacated. We reverse that limited
provision of the FJOD and remand for further review. On remand,
the judge must consider the propriety of adding child-care costs
and whether good cause for a separate allocation of specific
extracurricular activities is warranted. To the extent
defendant paid unsupported child-care or activity expenses, the
judge shall determine the applicable credit and the method for
repayment. Finally, we reject claims of error in the FJOD's
provisions providing for equitable distribution.
Affirmed in part, reversed, and remanded in part.
29 A-4565-12T4