Pascale v. Pascale

• Decision Date: 10 July 1995
• Citation: 660 A.2d 485,140 N.J. 583
• Parties: Debra PASCALE, Plaintiff-Appellant and Cross-Respondent, v. James PASCALE, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Supreme Court

Page 583

140 N.J. 583

660 A.2d 485

Debra PASCALE, Plaintiff-Appellant and Cross-Respondent, v. James PASCALE, Defendant-Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued Feb. 14, 1995.

Decided July 10, 1995.

Laura M. Le Winn, Cranford, argued the cause, for appellant and cross-respondent.

Bruce I. Afran, Princeton, argued the cause, for respondent and cross-appellant.

The opinion of the Court was delivered by

GARIBALDI, Justice.

Debra and James Pascale are divorced, but share joint legal custody of their three minor children. Debra maintains physical custody of the children and is their "primary caretaker." This appeal involves the child support that both parents must contribute toward their children's support. In resolving that issue, we must determine whether the Pascales' custody arrangement is "nontraditional" and whether the parent who acts as the "primary caretaker" for the children after divorce should retain authority over the disbursal of child support that both parents must provide. We decide those issues not in the context of a father or mother's custody rights, but in the context of the responsibilities of both parents to their children. The lodestar of our consideration continues to be the best interests of the child.

The other question presented by this appeal, unrelated to the first question, is whether stock options issued to Debra immediately after she filed for divorce are subject to equitable distribution.

I CHILD SUPPORT

A. FACTS

Debra and James married on June 19, 1977, and had three children: a son, born in 1984, and twin daughters, born in 1986. Marital difficulties developed, and Debra filed a complaint for divorce against James on October 28, 1990. In response to Debra's motion for pendente lite support, the trial court on March 19, 1991, issued an order that required James to pay sixty percent of all shelter, transportation, and other costs for the support of the children, and allocated other costs between the parties.

On September 23, 1991, another trial court issued an order that granted the couple joint custody of the children, set forth a schedule of visitation for James, and designated Debra as the "residential custodial parent." Pursuant to that order, the trial court structured James's visitation or "parenting time" in the following manner. For the ten-and-one-half-month school year, James would have the children for dinner from approximately 5:30 p.m. to 8:30 p.m. on Wednesday and Thursday evenings; and each weekend, he would keep the children for a twenty-four-hour, overnight stay. During the approximately seven-week summer, the trial court ordered James to keep the children overnight on both Wednesday and Thursday. In addition, the trial court ordered the parties to alternate major holidays with the children. By order dated April 3, 1992, the trial court compelled James to vacate the marital residence. At trial, James testified that he had moved to a fully furnished, three-bedroom house in Lawrence Township, New Jersey, approximately fifteen miles from the marital residence. However, after he had vacated the marital premises, James did not continue to comply with the March 1991 order to pay Debra sixty percent of the expenses needed for the children and maintenance of the marital home.

Following a six-day trial, the trial court granted a dual judgment of divorce. Under the terms of the divorce, the trial court incorporated by reference the child custody and "parenting time" order of September 23, 1991. The court clarified that James was not seeking and had not sought sole or joint physical custody of the children. The court refused James's request to term the custody arrangement between the parties as "nontraditional." The court found that James was not exempt from payment of a proportionate percentage of his salary to Debra, which equals fifty-eight percent of the amount needed for the support of their children. At the time of the trial, the court assumed that Debra had a gross annual income of $52,500 and James had a gross annual income of $72,500. In addition, the trial court ordered Debra to contribute from her own salary child support equalling approximately forty-two percent of the children's necessary expenses per year. Specifically, the trial court applied the Child Support Guidelines for income levels up to $52,000 of combined income, and then supplemented that guideline award with an additional support amount based on the remaining family income, the factors enumerated in N.J.S.A. 2A:34-23, and the quality of life desired by both parties for their children. That led the trial court to order James to pay child support to Debra of $1,250 per month for the first twelve months, to be reduced to $1,150 per month for the remainder of their childhood, with further reductions as each child becomes emancipated. Recognizing both parents' strong interest in remaining involved in the lives of their children but also recognizing the greater responsibility borne by Debra in caring for the children, the trial court ordered that James pay his percentage of child support to Debra.

Both parties appealed. The Appellate Division reversed the trial court, finding that the Pascales' joint custody arrangement was nontraditional. In so doing, the Appellate Division defined a "nontraditional" custody arrangement as "visitation [in excess of] ... one day per week" for the non-custodial parent. 274 N.J.Super. 429, 443, 644 A.2d 638 (1994). The Appellate Division recognized that the trial court had followed the applicable Child Support Guidelines and the statutory criteria from N.J.S.A. 2A:34-23 to establish a support order for that nontraditional custodial arrangement, but found that the trial court had not explained its rationale for awarding $1,250 per month initially, which was to be reduced to $1,150 per month permanently on August 1, 1993. Id. at 444-45, 644 A.2d 638. The Appellate Division therefore remanded the matter to the trial court for reconsideration of the child-support order. Ibid.

Following the determination of the Appellate Division, each party filed a petition for certification. Debra objected to the Appellate Division's ruling that the custody and visitation agreement was nontraditional and that therefore, the Child Support Guidelines, or an extrapolation therefrom, was not applicable. James petitioned this Court for review of the Appellate Division's finding that only the option for 1,800 shares of stock should be included in the marital estate for purposes of equitable distribution.

This Court granted certification to both parties. 138 N.J. 266, 649 A.2d 1286 (1994).

B. CHILD-SUPPORT LAW

Child support after divorce is necessary to ensure that a child's basic needs are provided by his parents, who might otherwise neglect their responsibilities to maintain the child. Children of divorce are twice as likely to live in poverty as children who remain in two-parent households. Suzanne Bianchi and Edith McArthur, U.S. Bureau of the Census, Family Disruption and Economic Hardship: The Short-Run Picture for Children 1-2 (1991). Children raised in a home with a female head of household live in poverty at more than four times the rate of children of couples who remain married. U.S. Bureau of the Census, Child Support for Custodial Mothers and Fathers 2 (1995) (hereinafter "Child Support"). The Legislature, therefore, has determined "that it is in the public interest to encourage parents [post-divorce] to share the rights and responsibilities of child rearing." N.J.S.A. 9:2-4.

The right to child support belongs to the child and "cannot be waived by the custodial parent." Martinetti v. Hickman, 261 N.J.Super. 508, 512, 619 A.2d 599 (App.Div.1993) (citations omitted). The court reasoned that a child-support decision must be based on an evaluation of the child's needs and interests and not on the conduct of the parents. Ibid. In addition, "[e]ach parent has a responsibility to share the costs of providing for the child while she remains unemancipated. Lynn v. Lynn, 165 N.J.Super. 328, 342-43 [398 A.2d 141] (App.Div.), certif. denied, 81 N.J. 52 [404 A.2d 1152] (1979)." Ibid. (other citation omitted). Most important, the non-custodial parent's failure in Martinetti to maintain ties with his daughter did not obviate his responsibility to contribute to her basic needs. Id. at 513, 619 A.2d 599.

Likewise, a non-custodial parent who did not undertake initially any of the financial burden of her children may not later escape responsibility to provide the custodial parent with funds for the continuing maintenance of her children. Bencivenga v. Bencivenga, 254 N.J.Super. 328, 331, 603 A.2d 531 (App.Div.1992). Rather, a rise in living expenses for the custodial parent obligated the non-custodial mother to begin to "shoulder some of the burden." Id. at 330, 603 A.2d 531. Finding that her voluntary departure from the world of gainful employment neither had foreclosed inquiry into the need for child support of her two children nor had negated her responsibility to supply that financial support, the court imputed income to her and imposed "a fair obligation to care for her first two children like her obligations to her second two." Id. at 331, 603 A.2d 531.

In a similar vein, Ross v. McNasby stands for the proposition that one parent's responsibility to support her child financially cannot be lessened by the other parent's interference " 'with rights of custody or visitation granted by a court.' " 259 N.J.Super. 410, 414, 613 A.2d 1174 (App.Div.1992) (quoting N.J.S.A. 2A:4-30.45) (citing inter alia Daly v. Daly, 21 N.J. 599, 609, 123 A.2d 3 (1956)). In another recent case, the Appellate Division found that a non-custodial parent who had failed to provide sufficient child support to the working, custodial parent to buy his children winter coats could not later ask for a "credit" toward those arrears because he later paid for college tuition. Guglielmo...