                                NOT FOR PUBLICATION WITHOUT THE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-0565-17T3

MARY ELIZABETH BOYLAN
(n/k/a MANLEY),

         Plaintiff-Respondent,

v.

NICHOLAS PAUL BOYLAN,

     Defendant-Appellant.
___________________________

                   Argued November 8, 2018 – Decided December 13, 2018

                   Before Judges Koblitz, Ostrer and Mayer.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FM-02-2164-08.

                   Jan A. Brody argued the cause for appellant (Carella,
                   Byrne, Cecchi, Olstein, Brody & Agnello, PC,
                   attorneys; Jan A. Brody, of counsel and on the brief).

                   Kelsey D. Mulholland argued the cause for respondent
                   (Ruvolo Law Group, LLC, attorneys; Kelsey D.
                   Mulholland, of counsel and on the brief).

PER CURIAM
      In this post-divorce-judgment child support matter, the judge determined

that defendant Nicholas Paul Boylan successfully proved a permanent change in

circumstances, and, upon his motion for reconsideration, further decreased a

portion of defendant's support obligation. Defendant nonetheless appeals from

the July 12, 2017 order (1) finding that plaintiff met her burden of proving

reasonable and necessary shelter expenses; (2) determining defendant's ability

to pay applying the Child Support Guidelines, Pressler & Verniero, Current N.J.

Court Rules, Appendices IX-A and B to R. 5:6A, www.gannlaw.com (2017);

and (3) setting his 2015 child support arrears based on his 2016 income.

      Defendant asks this court to completely eliminate the $8,000 per month

shelter component of his $11,700 monthly child support obligation and credit

his overpayment against his future monthly payments, because plaintiff did not

meet her burden of proof. He seeks a remand for a redetermination of his child

support obligation based upon his 2017 income and a determination of

defendant's 2015 child support arrears based on his 2015 income.

      After a plenary hearing, Assignment Judge Bonnie J. Mizdol's

comprehensive written decisions in both her initial and reconsideration opinions

demonstrate her fact finding was based on credible evidence, and her child

support determination was supported by the record and consistent with


                                                                        A-0565-17T3
                                       2
precedent. We affirm substantially for the reasons expressed in Judge Mizdol 's

thorough thirty-one page opinion of July 12 and nineteen-page opinion of

September 22, 2017.

      The parties were married in 1992 and had six children. Defendant is an

insurance broker with an average annual pretax business income from 2006

through 2008 of $850,000. Plaintiff is not employed outside the home.

      In April 2009, the parties divorced after entering into a matrimonial

settlement agreement (MSA). Under the MSA, defendant's yearly obligations

were $300,000 in alimony and $100,000 in child support.                Regarding

modification of child support:

            The parties agree that there shall be no modification of
            child support based on a change in [defendant]'s income
            so long as [defendant]'s Net Business Income remains
            in the range of $850,000.00 to $925,000.00. The parties
            further agree that there shall be a rebuttable
            presumption that business expenses for [defendant]'s
            business shall equate to thirty percent (30%) of gross
            receipts. However, the parties do not agree as to
            whether or not [plaintiff] shall be entitled to a
            modification of child support . . . if [defendant]'s Net
            Business Income is less than $850,000 . . . .

Upon emancipation of each child, child support was to be reduced by an amount

agreed to by the parties, or if necessary, determined by the court.




                                                                        A-0565-17T3
                                        3
      In 2010, plaintiff remarried and moved to a home in Far Hills, New Jersey

with her current husband and six children. She also has a son from her current

marriage who is approximately four years old. The parties' two unemancipated

children who are currently attending college have bedrooms in the Far Hills

home, and return to the home during school recesses, holidays, and summers.

The parties' emancipated son graduated college and started law school in 2017.

Their emancipated daughter graduated college and works for an accounting firm

in New York City.

      In June 2010, the parties signed a consent order modifying certain

provisions of the MSA. Alimony was terminated. Defendant's child support

obligation was increased to $200,000 annually or $16,666 per month, which was

to continue without reduction until all six children were emancipated.

      In November 2011, the health insurance component of defendant's

business, which had generated $500,000 in gross revenue annually, was sold,

and defendant received $700,000. Defendant remarried in 2012 and has a young

son with his new wife.

      Plaintiff filed a motion to enforce child support and defendant filed a

cross-motion to modify his child support obligations. On October 11, 2013, the

judge issued an order granting plaintiff's motion to establish arrears as of August


                                                                          A-0565-17T3
                                        4
7, 2013 at $183,160 and reserving for consideration after a plenary hearing

defendant's cross-motion to (1) modify child support; (2) afford him a credit

against arrears for college expenses he incurred; and (3) compel plaintiff to

reimburse him fifty percent of the medical bills he paid.

      In December 2013, the parties resolved the pending issues. The 2013

consent order temporarily decreased child support to $8,000 per month, from

August 1, 2013, until December 31, 2014. It provided that "[c]ommencing on

January 1, 2015, child support of $16,666.66 per month shall be reinstated, plus

arrears of $2,500 per month (if applicable)."

      One year later, defendant filed a motion again seeking modification of his

child support obligations. Plaintiff filed a cross-motion to enforce the parties'

2013 consent order.

      Approximately two years of litigation ensued before a hearing

commenced in May 2017. After a five-day trial, the judge issued a written

decision on July 12, 2017, finding that "[d]efendant has successfully proved a

permanent change in circumstances based upon a combination of reduced

revenues and an expense ratio well in excess of the [thirty percent] rebuttable

presumption contained in the parties' MSA warranting a reduction of his direct

child support obligation . . . ." Nonetheless, the judge noted that "[s]ince 2014,


                                                                         A-0565-17T3
                                        5
[d]efendant's gross revenues have trended upward. This court's analysis of

necessity must include years 2015, 2016 and information available in 2017."

Judge Mizdol found that defendant had not reduced his own lifestyle

expenditures in spite of his reduction in income.

      Judge Mizdol considered the statutory factors, noting that the factors are

not exhaustive, and that the analysis is guided by flexibility and the best interests

of the children under Strahan v. Strahan, 402 N.J. Super. 298, 306 (App. Div.

2008).

      Disregarding the two emancipated children for purposes of reasonable and

necessary expenses, and distinguishing between the two unemancipated children

living at college and the two living at the Far Hills home, the judge found that

plaintiff had credibly established that the children's monthly shelter expenses

were $8,000; transportation expenses were $813.75; and personal expenses were

$3,975.56.

         The judge issued an order establishing defendant's child support

obligation as $12,700 per month. Defendant's arrears were fixed at $112,116.67

after retroactively applying the new support obligation to the motion filing date

of December 31, 2014. Plaintiff was also awarded counsel fees in the amount

of $35,000.


                                                                            A-0565-17T3
                                         6
      Defendant filed a motion for reconsideration in which he objected to the

child support amount determined by the court. On September 22, 2017, the court

issued a comprehensive written decision reducing the unemancipated children's

personal monthly expenses to $2,863.64, and accordingly decreasing

defendant's child support obligation to $11,700 per month, to be paid in bi-

monthly payments of $5,850. The judge based her findings on defendant's 2016

pretax business income, stating:

            While [d]efendant may be dissatisfied with the court's
            scrutiny and its weighted reliance on 2016 income,
            Appendix IX-B of the Child Support Guidelines
            provides that if income information is only available
            prior to June 30 of the current year, the court should
            rely on Federal and State income tax returns, W-2's,
            1099's from the preceding year. Both parties and
            plaintiff's expert stipulated to defendant's 2016 1099
            gross business revenue of $1,421,649.

Regarding her calculation of shelter expenses, the judge reiterated that her

analysis took into consideration the marital lifestyle as well as the fact that two

children were emancipated, noting that "[p]laintiff endured grueling cross-

examination of each line item. She described shelter expenses for [her], her

husband, and all seven children . . . . She echoed her direct testimony that this

sum was comparable to the parties' Franklin Lakes shelter expenses of

$16,000.00 per month . . . ." Defendant's child support arrears were modified to


                                                                          A-0565-17T3
                                        7
$90,524.47. The reconsideration opinion otherwise affirmed and expanded upon

the judge's reasoning in her initial opinion.

      "Because of the family courts' special jurisdiction and expertise in family

matters, appellate courts should accord deference to family court factfinding."

Cesare v. Cesare, 154 N.J. 394, 413 (1998). This court's review of the trial

court's discretionary determination regarding support obligations "is limited to

whether the court made findings inconsistent with the evidence or unsupported

by the record, or erred as a matter of law." Reese v. Weis, 430 N.J. Super. 552,

572 (App. Div. 2013) (quoting Cesare, 154 N.J. at 411); see also Storey v.

Storey, 373 N.J. Super. 464, 479 (App. Div. 2004) ("Credibility findings are

given substantial weight and deference.").

      Plaintiff testified about the expenses associated with the Far Hills home

as set forth in her case information statement. Defendant did not question

whether plaintiff actually made the payments she described, but rather he

questioned whether they were reasonable. Judge Mizdol, as noted in her initial

and reconsideration opinions, found plaintiff's testimony credible, and the

shelter expenses reasonably in line with the marital lifestyle of the parties while

living in the Franklin Lakes home. The shelter expenses were not rebutted by

defendant, and the judge did not rely on plaintiff's testimony that she paid a


                                                                          A-0565-17T3
                                         8
monthly sum to her current husband for the support of her children with

defendant.

      Defendant argues on appeal that the judge improperly considered his 2016

income because it represents an "aberration" compared to the four years

preceding, as well as compared to his estimated income for 2017, which was

based on the first five months of that year. Defendant's pretax business income

steadily increased since 2012. The judge noted that defendant's "increasingly

high business expenses to gross revenue margins are vexing and in accordance

with case law are to be viewed with suspicion," citing Larbig v. Larbig, 384 N.J.

Super. 17, 23 (App. Div. 2006) and Donnelly v. Donnelly, 405 N.J. Super. 117,

128-29 (App. Div. 2009).

      For the first time on appeal, defendant argues that the judge incorrectly

calculated the portion of his arrears attributable to 2015 by applying defendant 's

current child support obligation when defendant's pretax business income in

2015 was less than it was in 2016. Defendant asks this court to remand the

matter to the trial court for a determination of defendant's 2015 child support

arrears based on his 2015 income. He is not entitled to an annual adjustment of

child support. Also, defendant did not raise this argument explicitly in his




                                                                          A-0565-17T3
                                        9
motion for reconsideration. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014)

(citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

      Judge Mizdol made credibility findings after hearing testimony. She

reasonably applied the case law and Rules to the facts, as she found them from

the evidence presented, and issued detailed opinions explaining her conclusions.

      Affirmed.




                                                                       A-0565-17T3
                                      10
