NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
BETSY L. KILGORE, n/k/a BETSY L. OSWALD,
LOUIS A. KILGORE,
_________________________________ Argued October 1, 2012 – Decided November 5, 2012 Before Judges Fasciale and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-986-07. Kenneth W. Thomas argued the cause for appellant (Lanza & Lanza LLP, attorneys; Mr. Thomas on the brief). David W. Trombadore argued the cause for respondent. PER CURIAM Defendant Louis Kilgore appeals from Family Part post- judgment orders denying his motion to enforce litigant's rights and modify the parties' dual judgment of divorce (JOD) and SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3481-11T2 motion for reconsideration. For the following reasons, we affirm in part and reverse in part. Plaintiff Betsy Oswald (Oswald) and Defendant Louis Kilgore (Kilgore) were married in 1983, and had four children: Gary,1 in 1986; Geri, in 1987; Mary, in 1989; and Elizabeth, in 1991. On May 6, 2008, the parties were granted a dual JOD, which incorporated their marital settlement agreement (MSA) On August 23, 2010, following Oswald's remarriage and relocation to Pennsylvania, the parties entered into a consent order amending the JOD and MSA. The consent order recognized certain changed circumstances, namely that Oswald remarried and relocated to Pennsylvania, and the four children resided with Kilgore. The parties agreed to vacate Kilgore's obligation to pay alimony and child support to Oswald, as well as terminate his obligation to maintain life insurance for Oswald's benefit. On August 12, 2011, Kilgore filed a motion to enforce litigant's rights and modify the parties' JOD, specifically seeking an order to: (1) compel Oswald to file an amended 2010 income tax return to reflect that she was not entitled to claim Mary and Elizabeth as dependents for the year 2010; (2) permit Kilgore to claim Elizabeth as a dependent on his 2011 income tax 1 Fictitious names will be used to refer to the children involved in this action. 2 A-3481-11T2 return and every year thereafter until she becomes emancipated; (3) modify the JOD and MSA to direct Oswald to contribute towards child support and college educational expenses for Mary and Elizabeth; (4) direct Oswald to pay counsel fees and costs; and (5) direct Oswald to make all support payments through the Somerset County Probation Department. Oswald filed an opposition and cross-motion for counsel fees. At the time of Kilgore's motion, Gary and Geri were emancipated but living in Kilgore's home with their younger unemancipated siblings, Mary and Elizabeth. Kilgore asserted that his salary had significantly decreased since the JOD and that expenses for the parties' two unemancipated children at home and at college were continuing to accumulate. Following oral argument, the motion judge issued an order and written decision denying Kilgore's motion with prejudice, except for the portion seeking child support and contribution toward college expenses. The judge granted Oswald's cross- motion for counsel fees. The judge first acknowledged and found that, from the time of the JOD, the parties sustained permanent and substantial changed circumstances. Next, the court concluded that there was no child support obligation to modify following the entry of the consent order and interpreted Kilgore's request as one to 3 A-3481-11T2 establish child support. In that regard, the court recognized that Mary and Elizabeth were entitled to the support of their parents, but because they were away at college and living on- campus, the New Jersey Child Support Guidelines2 did not apply. The court indicated that it must consider, among other things, the following factors provided by N.J.S.A. 2A:34-23(a) when it is not bound by the court rules in determining child support: (1) Needs of the child; (2) Standard of living and economic circumstances of each parent; (3) All sources of income and assets of each parent; (4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment; (5) Need and capacity of the child for education, including higher education; (6) Age and health of the child and each parent; (7) Income, assets and earning ability of the child; (8) Responsibility of the parents for the court-ordered support of others; 2 Child Support Guidelines, Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2541 (2013). 4 A-3481-11T2 (9) Reasonable debts and liabilities of each child and parent; and (10) Any other factors the court may deem relevant.3 The court determined that the financial information Kilgore provided was unclear and inconsistent. First, Kilgore's case information statement reflecting his expenses conflicted with his reported income. Second, Kilgore failed to substantiate Elizabeth and Mary's income, expenses or ability to pay for their expenses, or provide any documentation regarding their college costs or college financial aid statements. Ultimately the court was unable to clearly discern Kilgore's income and expenses, and the financial needs of the daughters. The court denied the request to establish child support and college contributions without prejudice because Kilgore “provide[d] insufficient and/or inconsistent information to permit the [c]ourt to make a determination” as to an award of child support under N.J.S.A. 2A:34-23(a) and the factors found in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). Regarding Kilgore's request that Oswald contribute towards college expenses, the court noted that the MSA provided in part that the “[w]ife . . . will co-sign up to the amount of $56,000 3 On remand, we direct the judge to apply these statutory factors. 5 A-3481-11T2 in student loans for the children.” Kilgore did not dispute that Oswald had co-signed loans in the amount of $59,000 for the children's college education. The court found that Oswald had satisfied her obligation to contribute toward college expenses. The court also denied Kilgore's request to require that Oswald re-file her 2010 tax return to eliminate claiming Elizabeth and his request to claim Elizabeth each year. For the tax year 2010, Oswald claimed Elizabeth and Kilgore claimed Mary. Kilgore argued that he was the sole provider of financial support for the children and Oswald was not entitled to the exemption because she had not provided more than fifty percent of support. Paragraph Six of the MSA provides Wife shall take [Geri] and Husband shall take [Mary] as dependency exemptions for 2008 and all later years. The parties will alternate the dependency exemption for [Elizabeth] with Husband to take the exemption for [Elizabeth] for 2008. When there are only two dependency exemptions remaining, each party will take one child. When there is only one dependency exemption remaining, then the parties will alternate that exemption year to year, with Wife to have the first year. The court noted that, under the terms of the MSA, Geri was emancipated upon her twenty-third birthday in February 2010. Geri claimed herself as an exemption for the 2010 tax year, 6 A-3481-11T2 leaving Elizabeth and Mary as the remaining unemancipated children. Since the MSA provided for Kilgore to claim Mary as a dependency exemption, Oswald claimed Elizabeth. The language of the MSA clearly and unambiguously dictated how the parties must elect dependency exemptions for their children. As the court noted, the MSA “never made entitlement to any dependency exemption reliant upon the extent of support provided.” As such, the court denied Kilgore's request finding his contention was without basis. The court then denied Kilgore's request for counsel fees and costs, and the request for support payments to be made through Family Support Services was declared moot. The court granted Oswald's cross-motion for counsel fees and costs based upon on an analysis under Rule 4:42-9(a)(1). Kilgore moved for reconsideration and Oswald again filed an opposition and moved for costs and counsel fees. In support of his motion, Kilgore provided additional financial documentation to address the shortcomings previously noted by the court. In particular, he provided Mary and Elizabeth's 2010 tax returns, Mary's W-2 and 1098-T, and Elizabeth's financial account statement from college. Following oral argument, the court denied Kilgore's motion for reconsideration finding the motion contrary to Rule 4:49-2 7 A-3481-11T2 by failing to state “with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.” The judge ruled that “additional financial documents could have and should have been submitted with the underlying motion and are, thus, inappropriate to form the basis of a reconsideration motion.” The judge determined that Kilgore failed to show that the court acted in an arbitrary, capricious, or unreasonable manner, and failed to provide any additional determinative information that could not have been submitted earlier. Notwithstanding that ruling, the court, in using its equitable powers to treat the reconsideration motion as a motion anew, considered the additional submissions but still found deficiencies in defendant's application including: (1) failure to supply proof of his expenses on behalf of Elizabeth and Mary; (2) duplication of expenses with respect to Elizabeth's housing, food, and, possibly, transportation; and (3) the frivolity of certain expenses in light of both parties' allegations of financial hardship. Ultimately, the court again denied without prejudice Kilgore's request to establish child support and stated that “[i]t is imperative that [Kilgore], should he opt to resubmit 8 A-3481-11T2 his application, supply the Court all necessary information to grant the relief he seeks.” The judge further denied Kilgore's requests to: (1) compel Oswald to file amended 2010 income tax returns; (2) permit him to claim Elizabeth as his dependent in 2011 and every year thereafter; and (3) impute income to Oswald. In accordance with Rule 4:42-9(a)(1), the court granted Oswald's motion for counsel fees and costs. We denied Kilgore's application for a stay pending appeal. This appeal followed. On appeal, Kilgore argues that the motion judge erred in failing to: 1) grant him a plenary hearing based on a prima facie showing of changed circumstances; 2) establish an obligation for Oswald to pay child support and contribute to the children's college expenses; 3) have income imputed to Oswald; 4) allow Kilgore to claim the parties' children as dependents on his tax returns; 5) award him counsel fees and costs; and 6) grant his motion for reconsideration. An order entered by the family part is entitled to substantial deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). “[M]atrimonial courts possess special expertise in the field of domestic relations.” Id. at 412. So long as trial court findings are supported by adequate, substantial and credible evidence, they will be affirmed on appeal. Id. at 411- 9 A-3481-11T2 12. “[A]n appellate court should not disturb the ‘factual findings and legal conclusions of the trial judge unless [it is] 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.'” Id. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We begin with a recognition that the motion judge acknowledged Kilgore's request for child support may be appropriate. The judge, however, was confounded by the financial information Kilgore submitted and noted the insufficiency of other proofs pertaining to his request. The judge correctly found that the applicable statutory requirements for the establishment of child support under these circumstance were set forth in N.J.S.A. 2A:34-23(a). Yet due to “insufficient and/or inconsistent information” the court could not make a clear determination pursuant to the statute or the factors found in Newburgh v. Arrigo, supra.4 4 We note that the two orders issued below are not consistent on the issue of college contribution. In the underlying motion, the court ruled that Oswald had satisfied her obligation to contribute to college expenses, yet denied that request without prejudice. The order on reconsideration does not clearly indicate whether the request for college contribution was reconsidered. In its decision, the court noted that it “would be inclined to view the majority of Elizabeth's housing costs not (continued) 10 A-3481-11T2 This court has previously recognized that “child support and contribution to college expenses are two discrete yet related obligations imposed on parents.” Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998). “The computation of child support cannot be made in a vacuum as there is a close relationship between college cost and support.” Jacoby v. Jacoby, 427 N.J. Super. 109, 122 (App. Div. 2012). Calculating these two support obligations often require the review of similar expenses under different standards, namely N.J.S.A. 2A:34-23(a) and Newburgh v. Arrigo, supra. In this case, the trial judge having been presented with undisputed changed circumstances, certain financial information and conflicting pleadings, should have conducted a plenary hearing to allow for a closer examination of the facts than is possible through review of confusing certifications or exhibits. We conclude that Kilgore demonstrated that a plenary hearing is warranted to resolve the contested issues of material fact. Conforti v. Guliadis, 128 N.J. 318, 322 (1992). The plenary hearing will enable the trial court to thoroughly examine the properly submitted proofs, make findings of fact and (continued) as child support but rather as a college-related expense.” Because we are remanding, in part, for the judge to conduct a Newburgh analysis, we vacate the judge's order denying Kilgore's request to compel Oswald to contribute to college expenses. 11 A-3481-11T2 state its legal conclusions thereon. See Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App. Div. 1971). Upon reviewing Kilgore's request that the court impute income to Oswald, we conclude that his request is premature and without a proven basis. In her response and cross-motion for counsel fees and costs, Oswald provided 2007 and 2011 case information statements with tax returns, W-2 statements and pay stubs. She indicated that her income decreased substantially since the time of the divorce. The court did not analyze her financial circumstances, but focused on Kilgore's financial data. The court made no determination whether Oswald's current income was an accurate reflection of her earning capacity. When considering a request to establish child support, the court may impute income to a parent whose income cannot be determined. Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002). Further, the court may impute income to a parent, where the parent has voluntarily become underemployed or unemployed without just cause. Caplan v. Caplan, 182 N.J. 250, 268 (2005). On remand, the court is directed to review the incomes and earning capacities of the parties, and if Oswald fails to establish her income or earning capacity to the satisfaction of 12 A-3481-11T2 the court, then imputation of income may be considered in accordance with the applicable court rules.5 Furthermore, Kilgore contends that Oswald should pay Kilgore's counsel fees. An award of counsel fees in a matrimonial action is discretionary. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (citation omitted); R. 4:42- 9(a)(1). On appeal, a decision regarding counsel fees will not be reversed absent a showing of an abuse of discretion involving a clear error in judgment. Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). Under the circumstances of this case, we reverse the award of counsel fees to Oswald and the denial of counsel fees to Kilgore, and direct the judge to address anew the fee applications after the completion of the plenary hearing, in accordance with Rule 5:3-5(c). On the issue pertaining to entitlement to claim Elizabeth as a tax dependency deduction, we affirm the denial substantially for the reasons set forth by the trial judge in 5 When determining whether to impute income, the court must consider four factors: (1) “the employment status and earning capacity of the parent . . . if the family had remained intact;” (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.” Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A(12) to R. 5:6A at 2505 (2012). 13 A-3481-11T2 his written decisions and orders dated October 19, 2011 and February 3, 2012. Lastly, we decline to address the denial of Kilgore's motion for reconsideration as moot given our determinations herein. Having reviewed the record in light of these contentions and the applicable law, we conclude that Kilgore is entitled to a remand on two issues: (1) a plenary hearing to consider the establishment of Oswald's obligation for child support and college contribution; and (2) reconsideration of the parties' respective requests for counsel fees and costs. Prior to the plenary hearing, and pursuant to an appropriate order, the parties shall exchange updated case information statements, including tax returns, and any necessary discovery counsel wish to pursue. The Family Part also retains the discretion, if any support is ordered, to preserve Kilgore's original filing date of the motion. Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.