NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2666-19
SUNDEEP SINGH SEKHON,
Plaintiff-Appellant/ Cross-Respondent,
v.
AMRITA AMY SEKHON, n/k/a SAINI,
Defendant-Respondent/ Cross-Appellant.
________________________
Submitted March 22, 2021 – Decided April 30, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-0563-11.
Susan M. Korngut, attorney for appellant/cross- respondent.
Helmer, Conley & Kasselman, PA, attorneys for respondent/cross-appellant (Barbara F. Dumadag, of counsel and on the briefs). PER CURIAM
In this post-judgment dissolution matter, plaintiff Sundeep Singh Sekhon
and defendant Amrita Amy Sekhon, now known as Amrita Amy Saini, appeal
from the Family Part's January 27, 2020 order. In the order, the motion judge
increased plaintiff's child support for the parties' two children, denied his motion
to compel defendant to contribute to the transportation expense associated with
his parenting time or towards payment for a parent coordinator, and denied his
request for sanctions and counsel fees. The judge entered the order for the
reasons stated in her seventeen-page memorandum of decision that was issued
with the order under appeal.
On appeal, plaintiff argues that the judge committed "plain error" by
recalculating his support obligation without imputing income to defendant, by
not compelling defendant to make the payments he sought towards travel
expenses and a parent coordinator, and by refusing to impose sanctions and
award counsel fees against defendant. In her cross appeal, defendant argues the
judge did not provide sufficient reasons for the limited amount of additional
support that was ordered, which, in any event, was inadequate.
A-2666-19 2 We disagree with the parties' contentions on appeal and affirm,
substantially for the reasons stated by the motion judge in her detailed written
decision.
After marrying in 2004, the parties had two children, a son born in 2006
and a daughter in 2008. They divorced in August 2012. Their judgment of
divorce incorporated their two 2012 agreements—one as to custody and
parenting time, and the other as to support and property distribution. The
agreements contemplated defendant's relocation to Canada with the children.
Under the child support and property distribution agreement, plaintiff was
to pay to defendant $500 per week and the parties were both obligated to pay
for additional child-related expenses "in proportion to the parties' respective
percentage shares of their respective net incomes as reflected on" an attached
child support guideline (Guidelines) 1 worksheet (Guidelines Worksheet).
Plaintiff was also required to maintain health insurance for the children, and to
be responsible for those unreimbursed health-related expenses defined in the
parties' agreement. Among defendant's obligations under section 3.20 of the
1 See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, www.gannlaw.com (2021).
A-2666-19 3 custody and parenting time agreement, she was to share equally in the costs
associated with the children's travel for parenting time with plaintiff.
According to the worksheet, plaintiff's income was $719,992 annually and
defendant had an imputed income of $20,000, as she had never been employed.
The worksheet also assumed 104 overnights with plaintiff and acknowledged
that the amount agreed to for support was higher than the amount provided for
the highest incomes subject to the Guidelines.
Prior to the entry of the judgment of divorce, defendant relocated with the
children to Canada. According to plaintiff, after the relocation, defendant began
to interfere with plaintiff's parenting time and would not share in transportation
expenses as required by the parties' agreement.
Six years after the divorce, in May 2018, defendant filed a motion seeking
an increase in plaintiff's child support obligation, and in July 2018, plaintiff filed
a cross-motion seeking the denial of defendant's motion and the enforcement of
his rights under the parties' custody and parenting time agreement. Plaintiff also
sought the imposition of sanctions and an order directing the parties to retain a
parent coordinator to deal with their issues.
Defendant's motion was supported by a one-page certification that
explained that an increase in child support was required "because the children's
A-2666-19 4 needs had increased" and plaintiff "has increased income and lifestyle [so] the
children should be able to live in equal conditions, lifestyle and requirements."
She also raised an issue about a $4,583.33 equitable distribution payment that
was due in September 2014 but not paid.
Plaintiff's cross-motion was supported by his certification setting forth the
facts that he alleged established defendant's violation of the parties' parenting
time agreement. As to his response to defendant's motion, plaintiff only stated
that it should be denied because she did not comply with Rule 5:5-4(a)(2)'s
requirement for including a current case information statement (CIS) with the
motion.
Defendant filed another certification, dated August 31, 2018, in which she
clarified her employment status and explained that she was not employed at that
time. She also addressed plaintiff's claim for transportation costs and stated that
there was no proof that plaintiff paid any of those costs, as he probably used
travel points to pay for them. Moreover, from the flight information plaintiff
provided it appeared that he included charges for his mother, which was not part
of the parties' agreement. As to earlier trips, he deducted costs from the
equitable distribution payments he had made to defendant.
A-2666-19 5 At oral argument on September 7, 2018, the parties addressed both
defendants' motion of increased support and plaintiff's claims about defendant
interfering with his parenting time. During the proceeding, the judge observed
that plaintiff had consented to the children's relocation with the understanding
the parties would comply with their parenting time agreement. She told the
parties she would not "accept[] any excuse" for defendant's failure to cooperate.
The judge then proceeded to work out a practical solution to an issue
regarding grandparent visitation under the agreement and thanked the parties
"for resolving that particular issue." The judge also facilitated a resolution of
the issue with the children's daily communication with plaintiff by having
everyone agree that such communications would be via the children's iPads.
As to the parent coordinator designated in the parties' agreement, the judge
observed that she had not been engaged with the family now for several years.
The judge stated that at the parties' next court date she would consider whether
to reengage the parent coordinator, whether or not there should "be sanctions for
non-compliance," and "any of the other outstanding issues that are right before
us at this time."
As to plaintiff's argument regarding defendant's employment, the judge
noted that information plaintiff found on the internet about defendant's real
A-2666-19 6 estate work was not "proof" and concluded that more information regarding the
parties' financials would need to be submitted. With that, the judge observed
that only the financial matters were left to be decided after the parties exchanged
financial information and submitted it to the judge. Finally, she resolved an
issue relating to the children's passports, directing defendant to complete the
required form for renewal.
The judge then entered an order granting defendant's request for the
recalculation of child support. The order also directed the parties to exchange
CISs and gave the parties an opportunity to attempt to resolve the issue between
them. In addition, it granted plaintiff's motion for the enforcement of his
parenting time rights and directed defendant to comply with the parties'
agreement. The order held in abeyance the issues of defendant's contribution to
transportation costs, requiring the parties to engage a parent coordinator and to
share the costs for those services equally, and plaintiff's motion for attorneys'
fees and sanctions, directing the parties to attempt to resolve those issues in
advance of returning to court if possible. It also directed the parties to exchange
proof of the transportation expenses incurred for parenting time.
When the parties realized they could not resolve their remaining issues,
defendant made additional submissions to the judge. Specifically, on October
A-2666-19 7 26, 2018 she submitted an updated CIS. It listed her 2017 gross income as
$12,000.
On November 14, 2018, the parties appeared again before the judge for
oral argument as to the remaining issues. On that day, plaintiff served and filed
a supplemental certification and CIS, which included his wife's financial
information. In the certification, plaintiff attached documentation he found on
the internet dating back to 2014 that indicated defendant had been working at a
real estate agency. He also attached travel itineraries for his children's, his, and
his mother's traveling that dated back to 2014 which had not been included in
his original cross-motion. The itineraries revealed the price for flights but did
not disclose if and how they were ever paid by plaintiff.
After considering the parties' arguments, the judge reserved decision. On
September 24, 2019, the judge wrote to the parties to request additional
submissions involving their financial information.2 In her letter, she defined the
remaining issues to be decided as the recalculation of support, defendant's
contribution towards transportation costs, the costs for the parent coordinator "if
needed," and "sanctions and counsel fees."
2 At oral argument, defendant's attorney explained that defendant did not file a tax return in Canada. In response to the judge's request, defendant submitted a certification detailing her income. A-2666-19 8 The parties' submissions also included another certification from
defendant, dated November 8, 2019, and a responsive certification from plaintiff
dated December 2, 2019. In her certification, defendant explained she
temporarily worked in a real estate office but left that position when the
requirements for a license were changed. She also advised that she became
employed full time with an airline in July 2019. As a result, she was forced to
incur childcare expenses because her mother who had previously provided that
service could no longer do so. Defendant also explained that after her alimony
terminated, she was forced to maintain herself and the children using the assets
she received as part of equitable distribution, and help from her family.
In his certification, plaintiff challenged defendant's statements regarding
her employment as a real estate agent and her claim she could not finish her
license requirement due to a lack of funds. He also requested a decrease in his
child support obligations and asked the court to calculate "at least three"
overnights per month "consistent with [the] Agreement."
On January 27, 2020, the judge issued her order and an accompanying
memorandum on her decision. In her decision, the judge recounted how the
original support amount was calculated based on plaintiff's "gross income of
$719,992/year as a dentist [and] imputed income of $20,000/year for
A-2666-19 9 [defendant], who did not work during the marriage." The judge also explained
that at the time the parties agreed to child support they "deviated from the
[Guidelines Worksheet] calculation of $395 and agreed upon $500/week" noting
that the parties did so in consideration of the fact "plaintiff's income [was] in
excess of the maximum guidelines income amount [and] various [other] divorce
issues." She also noted defendant was to receive a limited amount of $80,000
in alimony payable at the rate of $1,500 per week and a "lump sum equitable
distribution payment of $110,000 [to be paid] in twenty-four installments of
$4,583.33" over two years.
The judge also explained that defendant filed her motion based upon "the
passage of time . . . and the termination of alimony." The judge then reviewed
the parties' income based upon the financial documents they had submitted.
The judge observed that plaintiff, a dentist, was involved with three
different practices and his current, annual "reported income" on his 2018 return
was $815,126, and his current wife's income was $79,532. However, applying
the Guidelines' analysis for business tax returns, the judge determined that some
of the deductions that plaintiff took from his practices were not allowable when
determining income for child support purposes. Those deductions went "beyond
what is necessary to operate the businesses and . . . are specifically excluded in
A-2666-19 10 accordance with" the Guidelines. She then delineated the expenses that needed
to "be added back into [plaintiff's] income." After doing so, the judge
determined that plaintiff's "income for child support purposes is $1,336,872."
As to defendant, the judge found that her submissions established that in
2017 and 2018 she earned $12,000 and $2,725, respectively, working "as a real
estate agent." The judge observed that currently, defendant was employed by
an airline in Canada and earned approximately $22,000 per year. But, while she
worked, defendant incurred childcare costs that averaged $450.00 per week.
The judge concluded that defendant only earned $21,840 and received a minimal
income from her involvement in selling real estate because she only had a
limited training in that area.
The judge also concluded that, contrary to plaintiff's contentions, based
upon defendant's "lack of employment experience during the marriage and only
limited real estate training thereafter, [it was] inappropriate and inequitable to
impute additional income to her." For purposes of child support calculation, the
judge relied on the income she earned from her full-time employment with the
airlines.
The judge preceded to calculate plaintiff's obligation for child support first
applying the Guidelines up to the maximum income amount and then
A-2666-19 11 considering the factors under N.J.S.A. 2A:34-23(a) "to calculate an additional
discretionary amount to be added if warranted." Using the financial information
supplied to her, the judge gave a detailed explanation of the statutory factors and
their applications to the families' income and expenses.
In her calculation of the Guideline amount, the judge gave plaintiff the
appropriate credit for his three other children, the reduction in his health
insurance contribution, which was no longer required because the children were
Canadian residents, and for the reduction in his overnight visitation because of
the relocation. Based on these factors, the judge determined that the Guideline
maximum amount for plaintiff's contribution totaled $875 per week and found
that the amount was "insufficient to meet the needs of the [parties' two]
children."
In determining the excess amount of support above the Guidelines
amount, the judge used plaintiff's CIS and financial information, reviewed his
monthly expenses, and found that they totaled $44,045, leaving plaintiff with
$808,332 annually for child support using the judge's calculation of available
income or, "$286,586 in excess income for child support," using plaintiff's
reported income.
A-2666-19 12 In calculating defendant's and the children's expenses, the judge reviewed
defendant's CIS and determined that the household annual budget was $109,680.
The judge found that defendant's budget for the children did "not seem
particularly excessive in order for her to provide a lifestyle for the children
comparable to what they could have had as an intact family, or comparable to
what [plaintiff's] younger children enjoy, given [plaintiff's] resources." Based
on defendant's "reported income," the judge concluded that there was an annual
shortfall of $87,840.
The judge observed that "[w]hile married, the parties enjoyed a high
standard of living based on [plaintiff's] income," and that his current wife and
younger children now did too. Citing to Caplan v. Caplan, 364 N.J. Super. 68,
90 (App. Div. 2003), she concluded that the parties' children "are entitled to
share in [plaintiff's] good fortune and current income." Relying on her
calculation of plaintiff's income that was available to support the parties'
children, she found it "appropriate to require [plaintiff] to contribute an
additional $125.00 per week, for a total obligation of $1,000 per week."
The judge made the award retroactive to May 16, 2018, and fixed
plaintiff's arrears in the amount "of over $40,000." She stated that "an accurate
amount of arrears will [be] compute[d] upon the filing of the order." In the
A-2666-19 13 meantime, she ordered the plaintiff to pay an additional $500 per week toward
the arrears.
The judge then addressed the remaining issues raised by the parties. She
did not order defendant to contribute towards plaintiff's parenting time expenses
because plaintiff did not "provide documentation detailing the expenses " or
otherwise "provide the court with information to support this request." As to
the parent coordinator, the judge observed that although years earlier the parties
had discussed retaining a parent coordinator one was never retained and for that
reason the issue was now "moot." However, the judge directed that "if the
parties desire to engage a [p]arent [c]oordinator, they should follow the cost
sharing agreement contained in the [c]ustody [a]greement."
The judge also denied plaintiff's request for sanctions, citing Rule 5:3-
7(a). She also denied plaintiff's request for counsel fees after considering the
factors stated in Rule 4:42-9, RPC 1.5(a), and Rule 5:3-5. The judge concluded
that plaintiff was in a far superior financial position than defendant, and as to
"the reasonableness of the positions taken in this motion," the judge noted that
plaintiff did not prevail on his "[e]nforcement [m]otion,"3 while defendant
3 As reflected in the order, plaintiff's requests to compel defendant to contribute 50% of the transportation costs incurred by his parents and to contribute 50% to
A-2666-19 14 secured an order recalculating the child support based upon her demonstrating a
change in circumstances, including plaintiff's "changed employment and family
structure." For those reasons, she denied plaintiff's application. This appeal
followed.
We begin our review by addressing the parties' cross contentions about
the judge's increasing plaintiff's child support obligation. Plaintiff contends the
judge should have dismissed the motion based upon defendant's failure to
provide a CIS in her original application or alternatively, in the calculation of
income, the judge should have imputed an increased amount of income to
defendant. In addition, he argues it was improper for the judge to consider
defendant's childcare costs and limit her review of his income to one year
because his earnings fluctuated. According to plaintiff, the judge overlooked
the fact that defendant had not been truthful with the judge because she did not
fully disclose her employment with a realtor, failed to closely examine
defendant's CIS, including her alleged budget of $9,100 per month, and ignored
defendant's failure to submit her tax return. Moreover, plaintiff contends the
judge should have ordered discovery.
a parent coordinator were denied, as well as his motion for sanctions. However, his earlier motions to enforce paragraphs 3.6 and 3.17 of the parties' agreement were granted. A-2666-19 15 According to defendant, the judge's increased child support was
inadequate. Defendant contends that while the judge correctly calculated the
award under the Guidelines up to the maximum income amount, she did not
make "appropriate findings and/or provide [her] reasoning for [her]
determination regarding supplemental support in light of the plaintiff's excess
income." According to defendant, the judge "randomly decided that the
supplemental amount of support should be $125 per week" which was not
supported by the applicable law.
We consider the parties contentions under the well settled principles that
guide our review. "[O]ur review of the Family Part's determinations regarding
child support is limited." Avelino-Catabran v. Catabran, 445 N.J. Super. 574,
587 (App. Div. 2016). "We 'do not disturb the factual findings and legal
conclusions of the [motion] 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.'" Ibid. (quoting
Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
"Moreover, '[b]ecause of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord deference to [the
judge's] fact[-]finding.'" Dever v. Howell, 456 N.J. Super. 300, 309 (App. Div.
A-2666-19 16 2018) (alterations in original) (quoting Cesare v. Cesare, 154 N.J. 394, 413
(1998)). Thus, generally, findings by a motion judge are "binding on appeal
when supported by adequate, substantial, credible evidence." Catabran, 445 N.J.
Super. at 587 (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)).
Family Part judges apply the Guidelines when determining child support.
Caplan v. Caplan, 182 N.J. 250, 264 (2005) (citing R. 5:6A). Upon a showing
of good cause, the judge may modify or disregard the Guidelines. Ibid. (citing
R. 5:6A). "Good cause" includes the factors specified in Appendix IX-A to the
Guidelines, which permit a judge to supplement the Guidelines if the children's
parents have a combined net annual income that is greater than $187,200.
Pressler & Verniero, Appendix IX-A to R. 5:6A.
Specifically, the Guidelines state that under these circumstances, where a
paying parent's income is in excess of the maximum Guidelines amount, "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." Ibid.
In determining whether to supplement the Guidelines-based award with a
discretionary amount, a judge's decision is informed by the following general
A-2666-19 17 principles. "Both parents have a shared obligation to support their children."
Strahan v. Strahan, 402 N.J. Super. 298, 306 (App. Div. 2008). That duty is a
continuous obligation. Caplan, 364 N.J. Super. at 90. "[W]here the parties have
the financial wherewithal to provide for their children, the children are entitled
to the benefit of financial advantages available to them." Isaacson v. Isaacson,
348 N.J. Super. 560, 579 (App. Div. 2002). Stated another way, "[c]hildren are
entitled to not only bare necessities, but a supporting parent has the obligation
to share with his [or her] children the benefit of his [or her] financial
achievement." Id. at 580.
When a court's attention "is focused on the unique circumstances of the
high-income earner whose ability to pay increased child support is not in issue,
the dominant guideline for consideration is the reasonable needs of the children,
which must be addressed in the context of the standard of living of the parties."
Id. at 581 (emphasis added). "The consideration of needs must include the age
and health of the children—with the understanding that infants' needs are less
than those of teenagers—as well as any assets or income of the children."
Strahan, 402 N.J. Super. at 307. In determining a child's needs, judges are to be
vigilant, but not overindulgent. Isaacson, 348 N.J. Super. at 583.
A-2666-19 18 Accordingly, "a balance must be struck between reasonable needs, which
reflect lifestyle opportunities, while at the same time precluding an
inappropriate windfall to the child," id. at 582, or to the custodial parent. Id. at
584. "[T]he law is not offended if there is some incidental benefit to the
custodial parent from increased child support payments." Ibid. However, the
law is offended when the custodial parent overreaches in the name of the
benefiting child. Id. at 585.
In calculating the family's income, it is within the motion judge's
discretion to impute income to a parent where appropriate. Gormley v. Gormley,
462 N.J. Super. 433, 443 (App. Div. 2019); see also Elrom v Elrom, 439 N.J.
Super. 424, 434 (App. Div. 2015). A "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." Elrom, 439 N.J. Super. at 434.
Under the Guidelines, such circumstances mandate imputation of income. Id. at
435. In Elrom, we explained the factors a judge must consider when deciding
whether to input income. We stated the following
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
A-2666-19 19 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 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, Appendix IX-A to R. 5:6A, ¶ 12.]
[Id. at 439.]
Applying these guiding principles to the motion judge's decision here, we
discern no abuse in the judge's discretion when she recalculated support first
under the Guidelines, and then by applying the statutory factors. The judge did
exactly what the law requires, and her decision was amply supported by the
evidence in the record. Moreover, the child support amount awarded is not a
windfall to either the children or defendant, nor an attempt to fill the gap for the
A-2666-19 20 alimony that had terminated, as it leaves a monthly shortfall towards defendant's
monthly budget.
Also, contrary to plaintiff's contentions on appeal, while the judge relied
upon his 2018 income tax return even though he supplied his 2017 return as
well, the two returns did not indicate a fluctuation in gross income from his
primary business. And, although the judge's decision did not indicate that she
scrutinized every expense in defendant's budget, it did reflect she subjected both
parties' CIS budgets to the same level of scrutiny and accepted them both as true
and reasonable in light of the parties' financial situations. As to plaintiff's
contention that the judge should have imputed additional income to defendant,
we conclude the judge correctly rejected his demand in light of there being no
evidence in the record to support a claim of underemployment, especially in
light of the fact that defendant was never employed during the marriage.
We reach a similar result as to plaintiff's claim on appeal. We find no
merit to her contention that the increase was insufficient. Applying our
deferential standard of review, we have no cause to disturb the judge increasing
the 2012 support amount from the original $500 per week to $1,000 in
recognition of the passage of time, the increased age of the children, and
plaintiff's increased income.
A-2666-19 21 We also reach a similar conclusion as to plaintiff's remaining arguments.
As to sanctions and counsel fees, the judge again did exactly what the law
requires. She determined that defendant filed a legitimate application and met
her burden, and, after applying the applicable rules, concluded that plaintiff's
claim for counsel fees was not supported by the record in light of the fact
plaintiff was not successful on several of his motions and he was in a far superior
financial position.4 Here, again we discern no abuse of discretion. R. 5:3-7(a).
As to plaintiff's remaining arguments, we conclude they are without merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say,
plaintiff failed to prove his transportation costs and the judge did not foreclose
the issue about a parent coordinator's fees, rather she left that issue to be
addressed when and if the parties actually need to retain one in the future with
the understanding that they agreed to share those costs.
Affirmed.
4 We note that in the parties' 2012 custody and parenting time agreement, they defined the sanctions for "sabotaging" a party's contact with the children, including not complying with the agreement, to include, "among other possible sanctions and remedies, adjudicate the violating party in violation of the other party's rights, modify the existing custody and parenting time arrangement, and assess counsel fees against the violating party." Plaintiff never raised this provision, and in any event, we find no basis in the record to find that defendant was sabotaging plaintiff's rights under the agreement. A-2666-19 22