                                NOT FOR PUBLICATION WITHOUT THE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-1145-17T1

ANNMARIE KENNEDY,

          Plaintiff-Respondent,

v.

TROY DAVID KENNEDY,

     Defendant-Appellant.
____________________________

                    Submitted October 31, 2018 – Decided November 21, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Warren County,
                    Docket No. FM-18-0559-06.

                    Benjamin G. Schneider, attorney for appellant.

                    Respondent has not filed a brief.

PER CURIAM

          Defendant Troy David Kennedy appeals from an October 6, 2017 order

denying his motion for reconsideration of a May 12, 2017 order requiring him
to pay $197 per week in child support to plaintiff Annmarie Kennedy. We affirm

in part, and reverse and remand in part for a recalculation of child support

consistent with this opinion.

      The following facts are taken from the motion record. The parties were

married in November 2000, and divorced in July 2006, pursuant to a judgment

which incorporated a property settlement agreement (PSA) dated in March 2006.

One child was born of the marriage, who was nearly fifteen years of age at the

time of the motion.

      In pertinent part, the PSA stated:

            The parties agree that they shall share [j]oint [l]egal and
            [p]hysical [c]ustody of their minor son . . . . Parenting
            time shall be shared equally by the parties, who shall
            alternate their parenting time with their minor son, as
            agreed, conditioned upon each party having equal
            parenting time with their son.

With respect to child support, the PSA provided, in part:

            Based upon the parties' agreement to share [j]oint
            [l]egal and [p]hysical [c]ustody of their minor son, with
            fifty-fifty parenting time, as well as the circumstances
            that the parties' relative incomes, as further set forth in
            this agreement, would be comparable, if the [defendant]
            is able to qualify to obtain a loan, including closing all
            closing costs sufficient to refinance the existing
            mortgage and equity loans, as well as to buy-out the
            [plaintiff's] interest in the marital residence as further
            set forth in this agreement, and if the [defendant] is
            solely entitled to the rental income from the tenants

                                                                          A-1145-17T1
                                           2
            currently occupying one-half of the marital residence,
            then neither party shall be obligated to pay child
            support to the other for the benefit of the parties[']
            minor son, at this time. However, in the event that the
            marital residence is sold to a third party, then the
            [defendant] shall be entitled to the payment of child
            support, since he will lose the benefit of the rental
            income from the marital residence. Neither party shall
            waive the right to make an application to the [c]ourt for
            the payment of child support by the other party, in the
            event of a significant change of circumstances. Upon
            notice to the other party of a claim of a significant
            change in circumstances, then both parties shall
            cooperate and exchange true copies of all income tax
            returns, W-2s, 1099s, pay stubs, and/or other evidence
            of income and/or compensation, upon the request of
            either party.

      Post-judgment, plaintiff filed a motion for an order permitting her to enroll

the parties' son in the Hillsborough School District where she resided, which the

court granted on July 10, 2014. In April 2017, plaintiff filed a motion seeking

an adjustment of the parenting schedule, sole residential custody, and child

support.

      At oral argument of plaintiff's motion, defendant stated he did not object

to granting plaintiff residential custody. Therefore, on May 12, 2017, the motion

judge entered an order memorializing the transfer of custody to plaintiff and

granting her motion for child support pursuant to the Child Support Guidelines.

The judge directed defendant to submit an updated Case Information Statement


                                                                           A-1145-17T1
                                        3
(CIS) and supporting documents within twenty days of receipt of the order, in

order to calculate child support.

      On June 1, 2017, defendant filed his CIS. The CIS reported year-to-date

earned income of $5760, and unemployment income of $8064 for the time

period between January 1 and May 19, 2017. In "Part F – Statement of Special

Problems" of the CIS defendant certified as follows:

            Defendant's annual gross earnings are impacted by
            three circumstances: (1) loss of rental income due to the
            relinquishment of his Somerville property as
            contemplated by the [P]SA; (2) the financial support of
            other dependents from his current marriage; and (3) the
            fact that he is a seasonal employee (supported by his
            three most recent paystubs as of May 19, 2017 skipping
            from late January/early February 2017 to May 2017).

Defendant also noted "[a]nnualizing his paystubs would substantially overstate

his gross annual earnings." The three paystubs attached to his CIS, which were

dated January 27, 2017, February 3, 2017, and May 19, 2017, indicated gross

income of $960 per week.

      Defendant's CIS also attached a joint income tax return for 2016, which

listed two other children as dependents born of his second marriage. Defendant




                                                                        A-1145-17T1
                                       4
also provided his 2015 and 2016 W-2 forms, which denote income of $26,880

and $32,640, respectively.1

       Plaintiff had provided a CIS dated April 1, 2017, when she filed her

motion. According to the CIS, her year-to-date gross earnings were $3150 for

the period of January 1, 2017 to March 30, 2017. Plaintiff's CIS also reported

year-to-date gross unearned income of $6921, from monthly social security

disability payments. Plaintiff's CIS also reported the parties' son had received

social security derivative disability payments totaling $1218 per month.

       On August 21, 2017, the motion judge filed a Uniform Summary Support

Order (USSO) ordering defendant to pay plaintiff $197 per week in child

support, effective April 4, 2017.     The USSO and the attached guidelines

indicated a gross weekly income of $523 for plaintiff and $1087 for defendant.

"Line 5" of the custodial parent's column of the guidelines worksheet entitled

"Government (Non-Means Tested) Benefits for the Child" reflected $0. The

worksheet also did not calculate an other dependent deduction (ODD) to take

into account the children from defendant's remarriage.

       Defendant filed a timely motion for reconsideration of the USSO. In his

certification he argued "the information contained on the . . . [g]uidelines . . .


1
    The copies of defendant's W-2 forms are somewhat illegible.
                                                                           A-1145-17T1
                                        5
containing all of the incomes and obligations of both parties includes

inconsistencies and does not reflect what is indicated for the same in the [CISs]

that were submitted to the courts prior to the [USSO]." He argued the guidelines

should be re-calculated "in order to ensure [he] [could] properly support all three

of [his] children based on [his] actual income, as well as . . . [p]laintiff's actual

income, including, . . . her part-time job income, Social Security Disability

benefits, and Social Security Auxiliary benefits for . . . [the parties' son]."

Plaintiff opposed defendant's motion for reconsideration and argued his

assertions were not supported by the documentation he provided.

      On October 6, 2017, the motion judge entered an order denying the motion

for reconsideration. The judge found defendant failed to meet his burden for

reconsideration to prove "with specificity[,] facts or law the [c]ourt . . .

overlooked or wrongly relied upon." According to the judge, defendant "simply

state[d] the [c]ourt erred in its calculations of child support, because the [c]ourt

used the wrong incomes and obligations provided in the parties' CISs[,]" but

failed to sufficiently explain which obligations or amounts were omitted, and

why those obligations should have been included.            The judge also found

defendant failed to prove why the court's calculation of defendant's gross weekly

income was incorrect, and failed to provide objective evidence of his wife's


                                                                             A-1145-17T1
                                         6
income and expenses for his children in order to calculate the ODD. This appeal

followed.

      "Motions for reconsideration are granted only under very narrow

circumstances[.]" Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462

(App. Div. 2002). A party seeking reconsideration shall state "the matters or

controlling decisions which [he or she] believes the court has overlooked or as

to which it has erred[.]" R. 4:49-2. As such, reconsideration should be used

only for those cases where "either (1) the Court has expressed its decision based

upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court

either did not consider, or failed to appreciate the significance of probative,

competent evidence." Fusco, 349 N.J. Super. at 462 (quoting D'Atria v. D'Atria,

242 N.J. Super. 392, 401 (Ch. Div. 1990)); see R. 4:49-2. We review a trial

court's denial of reconsideration for abuse of discretion. Cummings v. Bahr,

295 N.J. Super. 374, 389 (App. Div. 1996).

      On appeal, defendant argues the motion judge miscalculated child support

because she did not include the social security benefit received by the parties'

son. Defendant also argues the judge miscalculated his income by assuming he

earned $960 every week, when in reality, he has had sporadic employment and

relies upon unemployment compensation when there is no work. Defendant also


                                                                          A-1145-17T1
                                        7
argues the judge did not consider the loss of his rental income when the marital

residence was sold. Defendant argues the judge failed to calculate the guidelines

with an ODD. He asserts the proper support figure should have been $98 per

week. We address these arguments in turn.

      Defendant urges us to reverse the USSO because the guidelines attached

to it failed to include social security disability derivative benefits paid to the

parties' son. Defendant notes he derived the figure from plaintiff's CIS and

provided it to the judge in his proposed guidelines worksheet attached to his

motion for reconsideration.

      The guidelines state:

            Derivative benefits have eligibility standards that are
            based on the contribution (e.g., . . . disability . . .) of
            one of the parties, without regard to family income.
            This includes but is not limited to Social Security
            Disability[.] . . . Such payments are either deducted
            from a parent's government benefit or paid in addition
            to the parent's benefit. These child benefits are earned
            benefits that are meant to replace the lost earnings of
            the parent in the event of disability or retirement. The
            derivative child benefits shall be counted in the weekly
            net income of the parent whose contribution is the
            source of the benefits and applied as a credit to that
            parent's child support obligation. If the amount of the
            support obligation after deducting the benefits is zero,
            then the child support obligation is satisfied and no
            support award should be ordered while the child is
            receiving the benefits.


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                                        8
            [Child Support Guidelines, Pressler & Verniero,
            Current N.J. Court Rules, Appendix IX-A to R. 5:6A,
            www.gannlaw.com (2018) (emphasis added)].

      We agree the motion judge erred when she failed to include the social

security disability derivative benefits paid to the parties' son in her guidelines

calculation. That figure was contained in plaintiff's CIS when the initial child

support calculation was made, and also pointed out by defendant on

reconsideration. Therefore, because the motion judge overlooked this evidence,

we reverse and remand this aspect of the decision for the judge to make the

correct computation.

      Defendant argues the motion judge should not have utilized the three

paystubs he attached to his CIS to calculate his income, because as a stone

mason, his income is sporadic. Additionally, he claims the judge erred in

considering rental income generated by the marital residence in her calculation

because the property has been relinquished.

      The guidelines provide instruction as to calculating gross income where

the source is sporadic or fluctuates. Appendix IX-B states:

            If income from any source is sporadic or fluctuates
            from year-to-year . . ., the amount of sporadic income
            to be included as gross income shall be determined by
            averaging the amount of income over the previous
            [thirty-six] months or from the first occurrence of its
            receipt whichever time is less.

                                                                          A-1145-17T1
                                        9
            [Child Support Guidelines, Pressler & Verniero,
            Current N.J. Court Rules, Appendix IX-B to R. 5:6A,
            www.gannlaw.com (2018) (emphasis added).]

"[T]he court may exclude sporadic income if the party can prove that it will not

be available in an equivalent amount in the future." Ibid.

      Here, defendant's proofs fell short of the disclosures required by the

guidelines. At the outset, it is not evident whether defendant provided his 2015

and 2016 W-2 forms to the judge because his certification in support of the

reconsideration motion does not reference the documents. Assuming defendant

provided the W-2 forms along with the three 2017 paystubs, these documents

did not address his income dating back to May 2014 to permit the judge to assess

his income for the thirty-six month period required under the guidelines.

Furthermore, beyond a bare assertion that his income was sporadic, defendant's

certification shed no light on whether the sporadic income would be unavailable

in the future. Thus, the motion judge did not abuse her discretion and we decline

to disturb the order on these grounds.

      However, we agree it was an abuse of discretion for the motion judge to

include rental income defendant no longer receives in the guidelines calculation.

Although defendant's 2016 tax return included a total annual rental income of

$6599, or $127 per week, he certified the income had disappeared as a result of

                                                                         A-1145-17T1
                                         10
the sale of the former marital residence.          Plaintiff's reply certification

acknowledged the sale of the residence as well. Indeed, she certified:

            While I am sensitive to the fact that [d]efendant was
            required to relinquish title of the marital home, I do not
            believe it is germane to this matter. While . . .
            [d]efendant intimates that his income has been reduced
            as a result of losing the rental aspect, he did recently
            receive a large lawsuit [settlement] that would seem
            sufficient to present as a good-faith payment to retain
            the home and provide a stable environment in the event
            that our son expressed interest in overnight parenting
            time.

      The judge also acknowledged defendant's claims relating to the sale of the

residence in the May 12, 2017 order:

            Defendant notes that the PSA was crafted to protect his
            right to child support in the event the marital home was
            sold and he no longer collected the rental income. . . .
            Defendant proposes that the sale of the marital home
            and the change in residential custody, to which he
            consents, present competing changes in circumstances
            that should be considered.

Additionally, as we noted, when defendant filed his CIS pursuant to the May

order, he certified to the loss of the rental income in Part F of the document.

      We are convinced the motion judge included the rental income in the

guidelines calculation, despite the evidence in the record demonstrating the loss

of the rental income. As we noted, defendant's paystubs showed a gross weekly

income of $960 per week. Defendant's 2016 joint tax return claims $6559 rental

                                                                          A-1145-17T1
                                       11
income, which equates to $127 per week. The gross weekly income, including

the rental income totals to $1087, which the motion judge input as defendant's

gross income into the guidelines attached to the USSO. Therefore, on remand,

the motion judge shall recalculate the guidelines and exclude the rental income

from the child support calculation, or make further findings as to why the $1087

does not include rental income.

      Finally, we affirm the motion judge's decision not to calculate the

guidelines utilizing an ODD. The guidelines explain the ODD as follows:

            These guidelines include a mechanism to apportion a
            parent's income to all of his or her legal dependents
            regardless of the timing of their birth or family
            association (i.e., if a divorced parent remarries and has
            children, that parent's income should be shared by all
            children born to that parent).

            [Child Support Guidelines, Pressler & Verniero,
            Current N.J. Court Rules, Appendix IX-A to R. 5:6A,
            www.gannlaw.com (2018).]

Additionally, "where there is not an order requiring either parent to pay support

for the other dependent this adjustment shall be used only if the income, if any,

of the other parent of the secondary family is provided to or ascertainable by the

court[.]" Ibid. (emphasis added). Importantly, the guidelines specify "this

adjustment may be applied to other dependents born before or after the child for

whom support is being determined[.]" Ibid. (emphasis added). As such, whether

                                                                          A-1145-17T1
                                       12
an ODD is calculated is subject to the court's discretion, and to financial

disclosures made by the parent seeking the ODD and his or her spouse.

      Defendant argues the motion judge erred because he disclosed his wife's

income on a proposed sole parenting worksheet he prepared in support of the

reconsideration motion. We disagree. Defendant's disclosure was not of the

sort required under the guidelines, and instead was a bare assertion unsupported

by objective evidence of his wife's income.       As the motion judge noted,

defendant

            provide[d] an amount for the [ODD], but [did] not
            provide evidence of how the amount was calculated.
            Defendant [did] not [submit] to the [c]ourt financials,
            besides the joint 2016 tax returns, to corroborate the
            ODD calculation such as his current spouse's pay stubs,
            children's healthcare expenses, or child care expenses.

      The only indicia of income for defendant's wife was the $400 gross weekly

income included on the proposed worksheet, and the $48,017 joint income on

the 2016 tax returns. The $400 per week annualizes to $20,800, and defendant's

2016 W-2 indicated he earned $32,640, for a total of $53,440. This sum exceeds

the income reported on the 2016 tax return. According to the return, the income

for defendant's wife should be $15,377 ($48,017 - $32,640 = $15,377).

However, this sum equates to $296 per week, which clearly does not match the

$400 defendant assigned to his wife on his proposed guidelines. For these

                                                                        A-1145-17T1
                                      13
reasons, the motion judge did not abuse her discretion to deny defendant the

benefit of an ODD.

      Affirmed in part, and reversed and remanded in part for further

proceedings consistent with this opinion. We do not retain jurisdiction.




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                                      14
