                      RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5430-11T4
                                                A-5431-11T4

SUSAN MARIE HARTE,

     Plaintiff-Respondent,               APPROVED FOR PUBLICATION

v.                                          December 18, 2013

DAVID RICHARD HAND,                        APPELLATE DIVISION


     Defendant-Appellant.

_________________________________

T.B.1,

     Plaintiff-Respondent,

v.

DAVID RICHARD HAND,

     Defendant-Appellant.

________________________________

         Argued Telephonically November        7,   2013   –
         Decided December 18, 2013

         Before    Judges    Espinosa,      Koblitz      and
         O'Connor.

         On appeal from Superior Court of New Jersey,
         Chancery Division, Family Part, Atlantic
         County, Docket Nos. FM-01-112-09 and FV-01-
         755-99.

1
  We use initials for this plaintiff because the child support
order emanated from a domestic violence matter.
          Andrew L. Rochester argued the cause for
          appellant    (Morgenstern     &    Rochester,
          attorneys; Mr. Rochester, on the briefs).

          Julie Davis Lisa argued the           cause   for
          respondent Susan Marie Harte.

          T.B., respondent, argued the cause pro se.

    The opinion of the court was delivered by

KOBLITZ, J.A.D.

    This appeal raises the issue of how to properly calculate

child support for multiple families.        Defendant David Richard

Hand appeals from two separate child support orders entered on

November 7, 2011, and orders denying reconsideration entered on

May 25, 2012.     He also appeals from a June 25, 2012 order

granting plaintiff Susan Marie Harte $600 in counsel fees.           The

orders regarding support were entered on the same date by the

same motion judge and the issues stemming from those orders in

the two appeals are identical.       We resolve both appeals in this

decision, reversing and remanding only for a recalculation of

support   that    takes   into   account     defendant's      financial

obligations towards all three of his children.          We affirm the

counsel fee award to Harte.      We also affirm the determination

that defendant's vocational report represented a net opinion and

therefore did not demonstrate a prima facie case of changed

circumstances requiring further discovery.




                                 2                             A-5430-11T4
        Defendant has three children, each of whom has a different

mother.      Defendant's oldest son lives with defendant and his

current wife.       This child's mother lives in Florida and does not

contribute to his support.         Defendant's younger son lives with

his mother, plaintiff T.B.         His youngest child, a girl, lives

with defendant's former wife, Harte.            Defendant was employed as

a concrete layer and finisher before he was seriously injured in

a 2003 garage collapse at the Tropicana Casino Hotel in Atlantic

City.     As a result of this injury, he received a settlement of

$1.2 million in 2007.        He claims to have netted $533,822 after

paying    several    "obligations."       At   the   time   of     his   personal

injury settlement, defendant was married to Harte and paying

child support to T.B.

        After the settlement, defendant agreed to an imputation of

$57,200 in annual income when recalculating child support for

T.B.2     Harte and defendant were divorced in 2008 and defendant

again consented to an imputation of $57,200 in annual income as

part of their January 2009 final judgment of divorce.                    In 2011,

after    a   history   of   enforcement    motions    by    both    plaintiffs,

defendant unsuccessfully moved to reduce child support for both

children, claiming he was unable to obtain through wages and

2
  According to the motion judge's opinion, $57,200, or $1,100 per
week, was originally derived from a 5% return on defendant's
settlement proceeds with no consideration of any earned income.



                                      3                                  A-5430-11T4
investments the agreed-upon imputed income.                                 The motion judge

denied his application, but suggested that if he presented a

vocational expert who could demonstrate his lack of ability to

earn     the     imputed       income,     the        judge          would       consider      his

application again.

       Defendant,       representing       himself             for   his     re-application,

moved again to reduce his support, this time supplying the judge

with a vocational expert's report that had been prepared prior

to his previous motion, but not provided by his counsel to the

judge.    Defendant stated on the record at oral argument that his

wife supported him.

       Robert     P.    Wolf,     Ed.D.,       M.B.A.,         completed         a    vocational

report    for        defendant        purporting          to     determine           defendant's

employability         and   earning      potential.              The    three-page         report

summarized      defendant's       work     history        since        the    2003    accident,

noting    that       between    2005     and       2010       defendant       worked     in    the

construction industry for two years, but "could not continue due

to injury-related impairments."                     During this five-year period,

he was otherwise jobless.                Defendant most recently worked as a

clerk    in    the     parts    and    sales       department          of    a   local    Nissan

dealership, but was terminated in December 2011.                                     The report

stated    that        defendant       completed           a     tractor-trailer           driver

training class thereby obtaining a "Class A" commercial driver's




                                               4                                         A-5430-11T4
license and was seeking employment as a local short-haul truck

driver, which would pay an average annual salary of $36,514.

Wolf   stated   that    defendant         refused      to    seek    work     as   a    more

lucrative long-distance "over the road" driver because of the

potentially        negative         impact        on        his      "child        rearing

responsibilities."          Wolf concluded that $36,514 was therefore

defendant's     "probable        income"      within   a    "reasonable       degree      of

vocational-economic         certainty."             Wolf     based    this     projected

imputed income on defendant's work history, a summary of his

medical and mental condition, some medical reports and salary

estimates from the 2010-2011 edition of the Occupational Outlook

Handbook    published       by    the    United     States    Department       of      Labor

Bureau          of               Labor            Statistics.                            See

http://www.bls.gov/ooh/transportation-and-material-moving/heavy-

and-tractor-trailer-truck-drivers.htm (last visited December 2,

2013).      Wolf relied on defendant's expressed desire to be a

truck driver, although defendant stated at oral argument that

his driver's license was suspended.

       We should not disturb the trial court's findings unless the

record   does   not    support          the   determination         with    substantial,

credible evidence.          Rova Farms Resort, Inc. v. Investors Ins.

Co.,   65   N.J.     474,   483-84        (1974).       Appellate      courts       accord

particular deference to the Family Part because of its "special




                                              5                                    A-5430-11T4
jurisdiction        and    expertise"      in     family    matters.      Cesare     v.

Cesare, 154 N.J. 394, 412 (1998).

                                             I

       The judge calculated child support for the two children not

living      with     defendant       based       on   the   individual    financial

circumstances of the mothers as provided in the Child Support

Guidelines.         R. 5:6A.        In both calculations, the judge entered

the undisputed dependent deduction of $177 for the child living

with defendant on line 2(d).                 She determined that it would be

unfair to the mothers to designate either order as the initial

order, thereby deducting that amount from defendant's available

income when calculating the support order for the other child.

The judge therefore calculated both support obligations using

defendant's imputed annual income of $57,200 as if the only

other child defendant supported was the oldest son living with

him.

       We   do     not    approve    the   child      support   calculation    method

utilized by the motion judge.                    Equality in treatment for the

mothers should not be obtained by requiring the father to pay an

inappropriately           high   level     of     support    for   both   children.

According to Rule 5:6A, the Child Support Guidelines "shall be

applied" when a court is calculating or modifying child support.

The "guidelines may be modified or disregarded by the court only




                                             6                                A-5430-11T4
where good cause is shown. . . ."                  Ibid.      Although we agree with

the judge's concern that the two mothers should not be treated

unequally,       we   do    not   approve    of        the   method    used   to   achieve

equality.

    The     Guidelines         require      the    court       to     consider     multiple

family obligations to obtain an equitable resolution that does

not favor any family.             Pressler & Verniero, Current N.J. Court

Rules, comment 10 on Appendix IX-A to R. 5:6A at 2587-88 (2014).

The Guidelines also anticipate an adjustment when an obligor

must support more than one family.                      Pressler & Verniero, supra,

comment     21    on       Appendix   IX-A        at     2599.        Pursuant     to    the

Guidelines, prior child support orders must be deducted from an

obligor's weekly income because such an obligation "represents

income that is not available for determining the current child

support obligation . . . ."                 Thus, "the amount of such orders

must be deducted from the obligor's total weekly Adjusted Gross

Taxable Income."            Pressler & Verniero, supra, Appendix IX-B at

2612.     By leaving line 2(b) blank on both the Harte and T.B.

worksheets, the judge misapplied the Guidelines.                              Pressler &

Verniero, supra, Appendix IX-B at 2612; see Schwarz v. Schwarz,

328 N.J. Super. 275, 285 (App. Div. 2000) (explaining that the

trial court erred by failing to calculate and apply an obligor's




                                             7                                     A-5430-11T4
other dependent deductions or to explain on the record why these

deductions were not applicable).

       A later-born child should not be penalized by reducing the

obligor's       available        income        by        the    prior    child       support

obligation.        To achieve parity among the children of defendant,

we suggest the use of the "prior order" adjustment under the

child support guidelines must be modified.                          For example, here,

Guidelines        support      should     be       calculated      for    Harte,3       first

considering her child as having the prior order and listing

T.B.'s child as the recipient of the second order; then flipping

these positions so the T.B. child is considered the first order

and     Harte's     child      considered          the    recipient      of    the    second

order.       Similar     calculations          would       be    performed     in      T.B.'s

matter, first considering her order as the first entered, then

as the second entered.              In each calculation, the party receiving

the "second" order would have the amount calculated for the

"first" order entered on line 2(b) of the worksheet.                                    Then,

after     the     four       calculations          are     prepared,     all     including

defendant's oldest child as another dependent deduction of $177

on    line   2(d),     the    two    resulting       T.B.       worksheet     obligations,


3
  Each child support worksheet should use                          the data for that
family.   For example, Harte has $221 per                          week of childcare
expenses while T.B. has none (worksheet line                       8) and Harte earns
significantly more money than T.B. (worksheet                      line 1).



                                               8                                     A-5430-11T4
located   at    line    27,   would    be      averaged     and     the     two    Harte

worksheet      calculations     averaged.             Defendant     would    then    be

ordered to pay the average of the two support calculations to

each plaintiff.        This method would ensure that the children were

treated fairly regardless of birth order, while not disregarding

the father's obligation to pay for all three children.                       This may

well not be the only way to equitably calculate support for

multiple families, but we suggest it as one workable method of

doing so that is consistent with the Guidelines.                      We therefore

remand for a recalculation of support for the two families.4

     Importantly,       these   orders         were    calculated     in     the    same

county at the same time.            Even when this does not occur, the

Guidelines indicate that an obligor's multiple obligations to

different      families    should     be       taken    into      consideration       in

determining an equitable amount of support for each child.                          The

Guidelines state:

            In some cases, one individual may be
            obligated to pay child support to multiple
            families. When the court adjudicates a case
            involving an obligor with multiple family
            obligations, it may be necessary to review
            all past orders for that individual. If the

4
  We note that support should be calculated using the schedule of
child support awards in effect when the motion judge calculated
support, rather than the schedule effective September 1, 2013,
because a change in the schedule is not sufficient to modify
support. Pressler & Verniero, supra, comment 23 on Appendix IX
A at 2600.



                                           9                                  A-5430-11T4
          court has jurisdiction over all matters, it
          may either average the orders or fashion
          some other equitable resolution to treat all
          supported   children    fairly   under   the
          guidelines.

          [Pressler & Verniero, supra, comment 10 on
          Appendix IX-A at 2588.]

     Rule 5:2-1(a) states that venue in a family case shall be

laid in the county where the child is domiciled.               However, venue

rules may be relaxed to allow child support matters to be heard

in another county to achieve an equitable result in conformity

with the goals of the Guidelines.5            With the agreement of a judge

from the other county, a judge could review a child support

order from that other county, after putting all parties involved

on notice.   See R. 5:2-2 and R. 4:3-3(a).             Distant parties could

appear by telephone.

                                            II

     N.J.R.E.   703    sets    forth        the   criteria   for   determining

whether an expert opinion may be admitted into evidence and

requires that the expert conclusions be founded in "facts or

data" and that those facts be "reasonably relied upon by [other]

experts in the field."        N.J.R.E. 703.        An expert must "give the

5
  See, AOC Directive #3-05 at 5 (explaining that in child support
enforcement cases where an obligor has another case in another
county, the Probation Child Support Enforcement Unit of the
county of venue should notify any other county where support
has been ordered, to "allow coordination and consolidation of
enforcement efforts, if necessary").



                                       10                             A-5430-11T4
why and wherefore" that supports his or her opinion in order for

a court to consider the expert's report.                       Pomerantz Paper Corp.

v.   New     Comm.      Corp.,   207     N.J.    344,       372-74    (2011)      (internal

citations      omitted).         The     opinion    must      be    more   than    a   "mere

conclusion."         Id. at 372.          The net opinion rule is succinctly

defined      as    "a     prohibition       against         speculative        testimony."

Grzanka      v.   Pfeifer,       301     N.J.   Super.       563,    580   (App.       Div.),

certif. denied, 122 N.J. 333 (1997).

       The     motion      judge       stated      that      defendant's        vocational

economic report was a "net opinion really based on nothing more

than accepting Mr. Hand's word that he was training as a truck

driver and going to an Occupational Outlook Handbook to find out

what that particular profession pays."                       The judge reasoned that

"[t]his evaluation does not provide the [c]ourt with any useful

information as to Mr. Hand's disabilities or limitations," and

"Mr.    Hand      has    not     supported       his      basis      for   a   change     in

circumstance       based    on     any    medical      or    psychological        lingering

damage [from his accident.]"                    The judge rejected defendant's

request for a decrease in support payments because he has "not

established that his earning capacity is diminished such that he

cannot earn the $57,200 imputed to him or that he is presently

working and earning income at his maximum capacity."




                                            11                                     A-5430-11T4
        The judge determined that this report represented a net

opinion.     Wolf relied on defendant's expressed desire to enter

the    short-haul      trucking    field      and   conducted       no   independent

evaluation of his true earning capacity.                     As the conclusory

report did little to analyze defendant's true earning capacity,

the motion judge correctly refused to consider it.

                                             III

       Defendant also appeals from the award of $600 of the $2600

in counsel fees requested by Harte, the only party to have an

attorney at that time.            A review of counsel fees awarded in a

matrimonial case is judged by an abuse of discretion standard.

J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012).                            We

affirm the modest fee assessment based on the motion judge's

thorough written opinion in which she considered all of the

relevant factors mandated by Rule 5:3-5(c).                       We note that bad

faith is not the sole requirement for an assessment of fees.

N.J.S.A. 2A:34-23 (noting that good or bad faith of the party is

just   one   of   the    factors     a   trial      judge    may    consider      when

assessing counsel fees).

       Affirmed   in    part,     reversed     in   part    and    remanded     for    a

recalculation of child support.            We do not retain jurisdiction.




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