ARMENIA I. LIRANZO VS. KEVIN K. GWYN (FD-20-0908-12, UNION COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1395-19T4
ARMENIA I. LIRANZO,
Plaintiff-Appellant,
v.
KEVIN K. GWYN,
Defendant-Respondent.
_________________________
Argued telephonically September 22, 2020 –
Decided October 2, 2020
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FD-20-0908-12.
Gail J. Mitchell argued the cause for appellant
(Schwartz Barkin & Mitchell, attorneys; Gail J.
Mitchell, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff Armenia Liranzo appeals from an October 24, 2019 order, which
required her to pay ninety dollars per week in child support to defendant Kevin
K. Gywn. We reverse and remand for further proceedings consistent with this
opinion.
This non-dissolution matter involves the parties' son who is presently nine
years of age. The parties have a lengthy history of litigation , whose relevant
aspects we summarize here. Pursuant to litigation initiated by the Division of
Child Protection and Permanency (Division), defendant received temporary
custody of the parties' son on December 8, 2016. Nearly one month later,
defendant filed a motion in this non-dissolution case to terminate his child
support obligation and child support from plaintiff. The court entered an order
on January 25, 2017, requiring plaintiff to pay defendant child support of $128
per week plus a weekly sum toward arrears.
Less than one month later, plaintiff filed a motion to decrease child
support arguing the child support order did not reflect her childcare expenses
for her younger child from a different relationship, auto insurance costs, and rent
expenses. On March 8, 2017, the court granted the motion and entered an order
reducing child support to $125 per week. The order noted the decrease
accounted for "[childcare] costs for [plaintiff's] other dependent."
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On March 28, 2018, the court entered an order in the litigation involving
the Division maintaining joint legal custody of the parties' son and continuing
physical custody with defendant. The order granted plaintiff overnight
parenting time every weekend from Friday after school until Sunday evening
and one day of mid-week non-overnight parenting time. The Division and the
parties entered child welfare mediation, which resulted in a July 12, 2018
consent order wherein the parties agreed to an equal shared parenting time plan.
On July 31, 2018, plaintiff filed a motion to terminate child support
because of the shared parenting plan. The court issued an August 29, 2018 order
temporarily suspending child support and relisting the matter, requiring the
parties to return to court with "completed case information sheets and income
information." On January 15, 2019, the court entered an order reducing
plaintiff's child support obligation to $102 per week.
On January 24, 2019, plaintiff moved to decrease child support again,
arguing the preceding order failed to consider her: medical insurance costs,
mandatory union dues, second child as an other dependent deduction (ODD),
and YMCA dues she claimed were also mandatory. Plaintiff argued she had
"complete custody" of her second child and was unable to care for both children
due to her child support obligation. On January 29, 2019, the court granted the
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application and reduced plaintiff's child support obligation to ninety dollars per
week. The guidelines worksheet attached to the order reflect deductions for
mandatory retirement contributions, union dues, and consideration of the child's
portion of the health insurance premium, but not the ODD.
On August 5, 2019, plaintiff filed a motion to reduce child support and for
primary physical custody. As pertains to the issues raised on this appeal,
plaintiff asserted the prior court order did not grant her an ODD and did not
consider that her teaching salary was only paid ten months per year. Plaintiff
who thus far had been self-represented, appeared before the motion judge with
counsel who argued the January 29 order was erroneous for the reasons plaintiff
expressed in her written submission, but also presented a notarized letter from
the child's caregiver confirming she charged plaintiff thirty-five dollars per
week to care for the parties' son. Counsel also argued the judge should adjust
child support to account for the equal parenting time and its effects on their
expenses pursuant to Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div.
2009). The judge adjourned the matter in order to review the file involving the
litigation with the Division to address plaintiff's custody application and ordered
the parties to return with their current income information.
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When the parties returned to court on October 23, 2019, the motion judge
considered further argument and ordered plaintiff to continue paying ninety
dollars per week in child support plus ten dollars toward arrears. The written
order stated: "The [c]ourt deviated from the child support guidelines based upon
the incomes of the parties and the disparity in their financial circumstances. The
[c]ourt did not follow the [Wunsch-Deffler] procedure because the calculation
results in a negative [two dollars], which is not equitable under the
circumstances." The guidelines worksheet attached to the order calculated child
support of thirty-nine dollars per week. The guideline worksheet included the
ODD, plaintiff's mandatory retirement contribution, union dues, work related
childcare of twenty dollars per week, and the child's share of the health insurance
premium.
The motion judge expressed her reasoning in a lengthy colloquy with the
parties and plaintiff's counsel stating as follows:
I have to make sure that whatever child support is
established in the case, it has to be reasonable. It has
to be based on equitable considerations of the parties
and the [c]ourt, and I just don't find it fair that what . . .
Wunsch-Deffler's going to [do is reduce child support]
down to zero. . . . [Plaintiff] makes $78,821 a year.
[Defendant] makes $48,776. It is a [30,000]-dollar
difference . . . . That would mean that [defendant]
would have absolutely no assistance with any expenses
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related to the child even though he makes [$30,000] a
year less . . . .
. . . . So I think under the circumstances, equity requires
me to deviate from the guidelines. . . . I believe that it
should stay at [ninety dollars] a week. . . . I have
discretion to deviate from the guidelines, and I think in
this case it's required.
The judge explained she used twenty-five dollars as the childcare expense on
the guidelines worksheet "because [thirty-five dollars] covers five days a week
and . . . [the caregiver] is not picking up the child five days a week because . . .
two-and-a-half days . . . [defendant] picks up the child or has someone doing it."
On appeal, plaintiff repeats the arguments that the guideline calculations
were incorrect because 1) her income was incorrectly calculated on a twelve
month pay period; 2) she is entitled to the benefit of the ODD, the entire sum of
the childcare paid for the parties' son, and the Wunsch-Deffler analysis; 3) the
judge improperly equalized the parties' incomes and considered the child
support plaintiff receives for her second child as a basis for finding an income
disparity; and 4) the judge did not state her reasons for deviating from the
guidelines by making the statutory findings required by Rule 5:6A.
The general rule is that "findings by a trial court are binding on appeal
when supported by adequate, substantial, credible evidence." Gnall v. Gnall,
222 N.J. 414, 428 (2015). Therefore, we review a child support award for an
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abuse of discretion. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div.
2012). "If consistent with the law, such an award will not be disturbed unless it
is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other
evidence, or the result of whim or caprice." Ibid. (quoting Foust v. Glaser, 340
N.J. Super. 312, 315-16 (App. Div. 2001)). However, "all legal issues are
reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).
We recently stated:
Rule 5:6A requires a trial judge to employ the
Guidelines when establishing child support unless
"good cause is shown." . . .
"If a [judge] determines deviation from the
guidelines is appropriate, [the judge] must nevertheless
calculate the guidelines-based support award and state
the specific findings justifying its deviation therefrom
— specifically, why deviation is in the best interests of
the child." Avelino-Catabran[ v. Catabran, 445 N.J.
Super. 574, 594 (App. Div. 2016)]. "If the [G]uidelines
are found inapplicable . . . the court should consider the
factors set forth in N.J.S.A. 2A:34-23 or N.J.S.A. 9:17-
53 when establishing the child support award." Pressler
& Verniero, Appendix IX-A to R. 5:6A at ¶ 3.
[Gormley v. Gormley, __ N.J. Super. __, __ (App. Div.
2020) (slip op. at 17-18) (alterations in original).]
The motion judge made none of the statutory findings required by Rule
5:6A in order to deviate from the guidelines and misapplied the law. For these
reasons, we remand the matter for reconsideration and application of the
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applicable law. We do not reach plaintiff's arguments relating to the ODD and
childcare expenses because they must abide the judge's findings as to whether a
deviation from the guidelines is warranted after making the necessary statutory
findings.
Although our remand does not necessitate an in-depth discussion of
plaintiff's remaining arguments, we note that we have no means to discern how
the judge calculated plaintiff's income because we have not been provided with
proof of her income on appeal. Nor do we have a means of determining whether
the judge attempted to equalize the parties' incomes as the guidelines worksheet
the judge prepared does not reveal the income was equalized and the judge's
reference to the parties' income disparity also does not establish that she
undertook to equalize their incomes. Regardless, the guidelines are predicated
on an income-shares approach to child-rearing, and contemplate that
[i]n intact families, the income of both parents is pooled
and spent for the benefit of all household members
including the children. Each parent's contribution to
the combined income of the family represents their
relative sharing of household expenses. . . . This same
income sharing principle is used to determine how the
parents will share a child support award. In dissolved
or non-formed families, however, the parents share
only the expenses for the child (i.e., the Appendix IX-
F support schedules are based on the marginal or added
cost of a child or children to an adult couple).
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[Pressler & Verniero, Appendix IX-A to R. 5:6A at ¶
4.]
Therefore, an income equalization would constitute a deviation from the
guidelines and necessitate the concomitant statutory findings, which were not
made here.
To the extent we have not addressed an argument raised by plaintiff, it is
because it lacks sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
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