RAOMAN DAVIS VS. ASHLEY SARDONI-DAVIS (FM-05-0062-18, CAPE MAY COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3902-18T2
RAOMAN DAVIS,
Plaintiff-Appellant,
v.
ASHLEY SARDONI-DAVIS,
Defendant-Respondent.
_____________________________
Submitted January 27, 2020 – Decided February 25, 2020
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cape May County,
Docket No. FM-05-0062-18.
Russell & Marinucci, PC, attorneys for appellant
(Katrina Tattoli and Richard A. Russell, on the briefs).
Ashley Sardoni, respondent pro se. 1
PER CURIAM
1
We refer to defendant by her pre-marital name, which she has resumed using.
Plaintiff Raoman Davis appeals from a Family Part order reducing his
monthly child support obligation, but not by as much as he wanted. After Davis
and his former wife, defendant Ashley Sardoni, divorced, they agreed to a
support amount well above the amount the Child Support Guidelines would have
dictated. Nonetheless, Davis contends on appeal that the trial court should have
revised his support obligation according to the Guidelines after he and his new
wife had a child. Alternatively, Davis contends the trial court should have
considered the statutory factors, N.J.S.A. 2A:34-23, in its outside-the-guidelines
calculation. As we agree with the latter point, we reverse and remand for
reconsideration.
I.
The parties divorced in December 2014 after a three-and-a-half-year
marriage. They had one child together. Shortly before they married, Davis quit
his job, earning over $50,000 per year, to follow his dream to be a filmmaker.
He and a partner launched Itchy House Films, LLC, which produced films and
music videos. Several months before their divorce, the parties entered a nine-
point "contract," in which they merely agreed to agree on child support. Later
incorporated in the divorce judgment, the contract stated, "Both parties will
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agree on monetary support for the care of [their child] on a monthly basis. This
will include food, shelter, and basic necessities."
After the divorce, the parties agreed on a child support number: $700 a
month. Davis later agreed to increase it to $1000 a month, although the parties
dispute when and why he did so. Sometime thereafter, Davis asked the Family
Part to reduce his obligation. On July 12, 2017, the trial court denied his motion,
because he failed to show a prima facie change in circumstances. The order
directed Davis to continue paying $1000 a month. He did not appeal.
A year later, after he and his new wife had a child, Davis filed another
motion. He asserted the birth constituted a significant change in circumstances
that warranted reducing his obligation. Sardoni conceded the change in
circumstances, but disputed Davis's entitlement to a Guidelines-based award.
After both parties testified at an evidentiary hearing, the trial court found
they were both underemployed – Davis voluntarily, Sardoni not. Davis quit a
job paying over $50,000 per year before his marriage to Sardoni. By contrast,
Sardoni had been trying for years to obtain a full-time teaching position that
offered benefits. In 2017, her gross income was $17,800.
Davis asserted that for the past eight years, his film company earned about
$21,000 per year. The judge found this incredible. Noting that Davis had agreed
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to pay, and did pay, $12,000 a year in child support, the court found it
"inconceivable" he did so with pre-tax business income of just $21,000 a year.
Davis testified he also ran a consulting company he wholly-owned. Davis
provided a Schedule C for the consulting company, but not for his film business.
The trial judge found that the omission "ma[d]e [Davis's] assertion of such
limited income very suspect." This finding was against the backdrop of
testimony and other evidence of numerous expensive vacations Davis had taken
over the past few years. The court disbelieved his claim that his wife paid for
his standard of living.
The trial court concluded, consistent with Sardoni's concession, that Davis
made a prima facie showing of a significant change in circumstances based on
the birth of Davis's new child.2 However, the trial court rejected Davis's
2
The trial judge relied on Martinez v. Martinez, 282 N.J. Super. 332 (Ch. Div.
1995). However, we do not read Martinez to mean a new child invariably
warrants reducing a prior support obligation. The "changed circumstances"
must be those "as would warrant relief from the support . . . provisions
involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980). In this case, Davis had to
show a reduced ability to pay. See Wei v. Wei, 248 N.J. Super. 572 (App. Div.
1991) (holding that obligor failed to show changed circumstances impairing his
ability to pay support, notwithstanding his remarriage, as his income had
increased). Notably, the court found Davis's evidence of his financial capacity
incredible. However, as Sardoni does not challenge the court's threshold
finding, we shall not disturb it. See Sklodowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").
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suggestion that the court recalculate support according to the Guidelines,
utilizing his alleged income of $21,000. That would have reduced his support
obligation to $185 monthly. The court held that strictly applying the Guidelines
would ignore the parties' own agreement to depart from them. A reduction of
the magnitude Davis proposed would also disserve their child's best interests.
Nonetheless, the court used the Guidelines as a tool to calculate Davis's
child support reduction. The court found it was unable to calculate Davis's
actual income, based on the evidence before it. And the court did not impute an
income level to Davis. But, the court calculated that had the Guidelines
generated the $700 or $1000 support figures, Davis would have had to earn
$51,000 or $95,000 annually, assuming Sardoni earned an imputed minimum
wage income of $344 weekly or $17,888 annually. If the other-dependent-
deduction were then added to the hypothetical calculation, the monthly support
obligation would drop to $654 or $942, respectively. This was roughly a six
percent reduction. After considering the child's best interests, the court adopted
that six percent figure, and reduced Davis's existing $1000 monthly obligation
by six percent, and ordered he pay Sardoni $940 monthly. The court did not
address the statutory factors, N.J.S.A. 2A:34-23, in determining the award.
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II.
We review the trial court's decision to modify child support for an abuse of
discretion. J.B. v. W.B., 215 N.J. 305, 325-26 (2013). Also, the trial court's fact-
findings are binding "when supported by adequate, substantial, [and] credible
evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Applying that standard of review, we reject Davis's argument that he did
not agree to a $1000 monthly support. The court's finding was supported by
sufficient credible evidence in the record. In any event, a trial court previously
affirmed that obligation in a 2017 order that Davis did not appeal.
We also reject Davis's argument that the court abused its discretion by
eschewing a Guidelines calculation. Rule 5:6A provides that the Guidelines
"may be modified or disregarded . . . where good cause is shown," and "the
determination of good cause shall be within the sound discretion of the court."
The trial court correctly concluded that the parties' own agreement provided
good cause for deviating from the Guidelines.
Our courts strive to enforce agreements that resolve matrimonial disputes,
applying contract principles tempered by equitable considerations. Holtham v.
Lucas, 460 N.J. Super. 308, 319-20 (App. Div. 2019). In modifying parties'
consensual arrangements, "care must be taken not to upset the reasonable
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expectation of the parties." J.B., 215 N.J. at 327. The trial court aptly noted
expressions of this instruction in J.B. and Dolce v. Dolce, 383 N.J. Super. 11,
18 (App. Div. 2006). "[N]othing in the law, and no principle of public policy
prevents a parent from freely undertaking to support a child beyond the
presumptive legal limits of parental responsibility." Id. at 18. "When one or
both parents have agreed to undertakings advantageous to a child beyond that
minimally required, the public policy favoring stability of arrangements . . .
usually counsels against modification." J.B., 215 N.J. at 327 (citing Smith v.
Smith, 72 N.J. 350, 360 (1977) and Dolce, 383 N.J. Super. at 20); see also Dolce,
383 N.J. Super. at 20 (stating "courts must 'giv[e] due weight to the strong public
policy favoring stability of [consensual] arrangements,'" before modifying a
voluntarily assumed obligation to provide more than minimally required
support) (quoting Smith, 72 N.J. at 360 (alteration in original)). The child's best
interests are the court's guidepost. J.B., 215 N.J. at 327-28; Lepis, 83 N.J. at
157.
In an appropriate exercise of discretion, the trial court applied these
principles and found good cause to deviate from the Guidelines. To preserve
the parties' agreement and to promote the child's best interests, the court declined
to calculate support based on the Guidelines and Davis's alleged income.
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Notably, had the court done so, it would have derived a significantly reduced
support level not because of the changed circumstance, the birth of his new
child. Rather, support would have dropped to $185 per month by applying
Davis's alleged $21,000 income. But he did not claim his actual income –
whatever it was – had significantly changed since the divorce. As the trial court
noted, "Because [Davis] had a child does not mean he gets to completely rewrite
the agreement."
Nonetheless, we cannot approve the trial court's method for deriving the
six percent reduction in Davis's obligation. "If the guidelines are found to be
inapplicable in a particular case, the court should consider the factors set for th
in N.J.S.A. 2A:34-23 or N.J.S.A. 9:17-53 when establishing the child support
award." New Jersey Rules of Court Appendix IX-A, Considerations in the Use
of Child Support Guidelines, ¶ 3 (2019), http://njcourts.gov/attorneys/assets/
rules/app9a.pdf; see also Fall & Romanowski, Child Support, Protection &
Support, Appendix IX-A to R. 5:6A, Considerations in the Use of Child Support
Guidelines, ¶ 3 (2019).3 These statutory factors include:
3
Furthermore, when the court calculates support based on the statutory factors,
it must still include a Guidelines calculation, with a statement why the court
deviated from it. As Rule 5:6A states:
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(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; (9) Reasonable debts and liabilities
of each child and parent; and (10) Any other factors the
court may deem relevant.
[N.J.S.A. 2A:34-23.]
N.J.S.A. 9:17-53 lists substantially the same factors.
Here, the trial court did not consider these factors when it calculated the
modification award. It was obliged to do so, along with giving appropriate
A completed child support guidelines worksheet in the
form prescribed in Appendix IX of these Rules shall be
filed with any order or judgment that includes child
support that is submitted for the approval of the court.
If a proposed child support award differs from the
award calculated under the child support guidelines, the
worksheet shall state the reason for the deviation and
the amount of the award calculated under the child
support guidelines.
See also Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 594 (App. Div.
2016).
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weight to the parties' prior agreement. See N.J.S.A. 2A:34-23(a)(10). We do
not disturb the trial court's finding that Davis's income statements were
incredible. However, the court was obliged to determine the parties' income, in
particular, see N.J.S.A. 2A:34-23(a)(3), and to impute an income if appropriate,
see Caplan v. Caplan, 182 N.J. 250, 268 (2005) (stating that "when a parent,
without just cause, is voluntarily unemployed or underemployed, income may
be imputed to that parent to provide for the child's needs"). If Davis fails to
present adequate documentation of his finances, the court may dismiss the
application, as he retains the burden to prove he is entitled to a reduced child
support obligation. Lepis, 83 N.J. at 159. We therefore remand for
reconsideration with these directions.
III.
Finally, Davis contends the trial court erred in failing to permit him to
designate the parties' child as a dependent on his income tax statement in
alternating years. The trial judge recognized that a court of equity has the power
to allocate the right to claim children as dependents to the Internal Revenue
Service. Gwodz v. Gwodz, 234 N.J. Super. 56, 60 (App. Div. 1989). However,
the judge concluded that "[n]either party has presented the court with any
evidence . . . by which it could quantify the impact of the exemption." In view
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of the absence of proof, the trial judge did not abuse his discretion in denying
Davis's request.
Reversed and remanded. We do not retain jurisdiction.
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