SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3909-15T3

BENJAMIN B. TAYLOR,

Plaintiff-Appellant,

v.

MARIA E. JONES, 

Defendant-Respondent.

____________________________

Submitted April 5, 2017 – Decided

Before Judges Fuentes and Gooden Brown.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Family Part, Essex 

County, Docket No. FD-07-3657-15.

Benjamin B. Taylor, appellant pro se. 

Respondent has not filed a brief.

PER CURIAM

In this non-dissolution case,1 plaintiff appeals from the 

March 30, 2016 order of the Family Part denying his motion for 

 

1 The non-dissolution or FD docket provides a mechanism for parents 

not married to each other to seek custody, parenting time, 

paternity, and child support. R.K. v. D.L., 434 N.J. Super. 113, 

131 (App. Div. 2014).

NOT FOR PUBLICATION WITHOUT THE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.

August 29, 2017
2 A-3909-15T3

reconsideration. We affirm substantially for the reasons set 

forth by Judge Michael C. Gaus in his comprehensive and wellreasoned oral opinion.

Plaintiff (father) and defendant (mother) were unmarried but 

lived together in plaintiff's Maplewood home for approximately two 

years before their daughter was born in October 2014. In April 

2015, the parties separated and plaintiff filed an order to show 

cause claiming that he was being denied shared custody and 

parenting time. Plaintiff's disagreement with defendant's breastfeeding and attachment parenting philosophy became the overarching 

issue in arranging for shared custody and parenting time after the 

parties separated. 

Thereafter, both parties filed dueling applications, 

including defendant's application for child support. Effective 

May 8, 2015, Judge Gaus established plaintiff's child support 

obligation as $173 per week plus $17 towards arrears. As to 

custody and parenting time issues, the parties agreed to 

participate in private mediation. However, mediation failed and

Judge Gaus thereafter conducted a plenary hearing that spanned a

total of six non-sequential hearing dates from November 30, 2015 

to January 28, 2016. 

On February 9, 2016, Judge Gaus rendered a comprehensive oral 

opinion. Preliminarily, the judge found defendant "to be highly 
3 A-3909-15T3

credible based upon her demeanor, a consistency of her answers, 

the straightforward manner in which she provided responses" and 

"her sincere interest in what she believes is best for [their 

daughter], including being fully supportive of moving the 

custodial arrangement into a fully shared custody arrangement." 

On the other hand, the judge found plaintiff's testimony "not 

credible in many areas" noting:

[a]t times, he appeared to be disingenuous, 

particularly based in his demeanor; his 

hesitation in providing answers; his avoidance 

during cross[-]examination; and most 

importantly, the distortion of his intentions 

as evidenced by his desire to drive this case 

by economics and his efforts to avoid 

financial responsibility wherever possible.

Also his belated offers to become more 

accommodating to the defendant's continuing 

need to breast[-]feed came way too late in the 

process. Earlier in the proceeding it had 

been his position that her breast[-]feeding 

was simply another effort on her part to 

control him, to control their family dynamic, 

and to control the building of his 

relationship with the child. It's that type 

of inconsistent positions throughout the 

proceedings that caused the [c]ourt to 

consider [defendant's] testimony to be much 

more credible than that of [plaintiff].

Next, applying the factors enumerated in N.J.S.A. 9:2-4(c), 

the judge ordered the parties to share legal and physical custody 

of their daughter, with defendant being designated "the parent of 

primary residence for purposes of establishing the child's legal 
4 A-3909-15T3

domicile." The judge entered a detailed shared parenting plan

order incorporating the gradual implementation of equal parenting 

time beginning in 2017 as the child was "weaned from her breast 

feeding." 

Utilizing the Child Support Guidelines (Guidelines) for a 

shared parenting child support award, Judge Gaus increased

plaintiff's child support obligation to $192 per week, effective 

February 9, 2016, based on an annual salary of $81,060 for 

plaintiff and $52,000 for defendant. The judge ordered further 

that on January 1, 2017, defendant's child support obligation 

would be automatically reduced to $30.05 per week as a result of 

the full implementation of the equal shared parenting time plan. 

In assessing the parents' income, the judge determined that 

plaintiff was "substantially [underemployed]" working as "a parttime athletic trainer[,] . . . part-time desk manager of a gym 

here and there[,] and then running his own wealth management 

business on the side." Crediting defendant's unrebutted testimony 

that plaintiff earned "six figures" when he worked "in New York 

City" in the financial services industry "approximately [fifteen]

years ago[,]" the judge found that plaintiff's current "wealth 

management duties, which he described as significantly involving 

'reading newspapers and watching videos'" showed "a lack of desire 
5 A-3909-15T3

. . . to work and supply as best he can through his financial[] 

abilities for his family."

The judge imputed income to plaintiff based on his profession 

as a Personal Financial Advisor, which "according to the Department 

of Labor's Statistics category 13-2052 is someone who advises 

clients on financial plans using knowledge of tax and investment 

strategies, securities, insurance, pension plans and real estate"

and which "[d]uties include assessing clients' assets, 

liabilities, cash flow, insurance coverage, tax status, and 

financial objectives." However, the judge imputed to plaintiff 

the "median income level" of $81,060 annually, rather than "the 

mean annual wage" of $108,090 as "more consistent with what might 

be realistically expected from [plaintiff]." Based on her tax 

returns for 2012, 2013, and 2014, the judge also imputed income 

to defendant, noting that while the court understood "her desire 

to be home with her child, that is something that simply cannot 

continue on an extended basis" as "[t]here is simply no reason why 

she has not yet returned to work full time at this point." 

When the child support guidelines were run, the judge also 

provided other dependent deductions for both parties. Plaintiff 

received an other-dependent deduction for his two older children 

and defendant received an other-dependent deduction for her son 

who was a full-time college student. Although over the age of 
6 A-3909-15T3

eighteen, defendant's son was attending Rutgers University on a 

full-time basis on an athletic scholarship. However, his 

scholarship did not cover all of his needs. 

Plaintiff filed a motion for reconsideration arguing that 

defendant should not have been granted a dependent care deduction 

because her son was an emancipated adult age child. Plaintiff 

also argued that the court should not have imputed income to him 

above what he actually earned. In the alternative, plaintiff 

argued that the court should have imputed the income of a Financial 

Analyst, rather than a Personal Financial Advisor. 

The judge denied the motion for reconsideration and issued a 

comprehensive and well-reasoned oral opinion rejecting plaintiff's 

arguments. Judge Gaus began his analysis by citing Rule 4:49-2 

and applying the well-settled legal principles for deciding a 

motion for reconsideration. As framed by Judge Gaus, plaintiff's

motion for reconsideration claimed: (1) "defendant should not have 

been granted another dependent deduction when the guidelines were

run" because her son was an "'emancipated adult age child[;]'" and 

(2) "the [c]ourt should not have imputed income to [plaintiff]

above what he actually earns" and "if the [c]ourt did . . . impute 

income to him, . . . it should have used Bureau of Labor Statistic 

category 13-2051 Financial Analyst instead of 13-2052 a Personal 

Financial Advisor."
7 A-3909-15T3

As to the propriety of the other-dependent deduction, Judge 

Gaus explained:

There is no dispute but that this child 

is in fact a full-time college student. He's

on an Athletic Scholarship at Rutgers. The 

testimony was accepted by the [c]ourt that he 

utilizes his mother's home as his primary 

residence when he is not at school. That 

entitles her to then seek out the other 

dependent deduction.

If this was a matter of calculating child 

support for that child, we would not use the 

guidelines when it comes to determining what 

would be appropriate child support for that 

child, because we don't use the guidelines for 

someone who is over [eighteen] years of age 

and is living away at college on a full-time 

basis.

But we were not calculating child support 

for that child. We were simply factoring in 

the other dependent deductions.

So the [c]ourt is satisfied, first, that 

the child is not emancipated, which really was 

the only argument that the . . . plaintiff

raised in his application. And then when he 

rose to speak today, he also then started to 

argue that in fact the child does not live 

there. We've addressed that as well, a parent 

is expected to keep a home for their child 

available and there are ongoing expenses 

associated not only with keeping the home 

available, but also continuing to support a 

child when they are a full-time live away 

student at college, even one who is on an 

Athletic Scholarship and who may well have a 

stipend beyond that.

As to the propriety of imputing income to plaintiff rather 

than accepting plaintiff's "actual income[,]" initially, Judge 
8 A-3909-15T3

Gaus reiterated his finding that plaintiff was intentionally 

underemployed because he "has the ability to work in the financial 

field in a way that would bring much more money into the 

household." Recounting plaintiff's trial testimony that his job 

entailed "read[ing] newspapers" and "listen[ing] to podcasts[,]" 

the judge determined that plaintiff "wanted to minimize what it 

is that he does in order to try to justify the significantly lower 

amount of income that he earns than what the Bureau of Labor 

Statistics suggest[s] that he should be earning." 

"[T]urning to the issue of whether the [c]ourt should have 

used [the] category [of] Financial Analyst or Personal Financial 

Advisor[,]" Judge Gaus determined that he "properly concluded that 

the Personal Financial Advisor category was more appropriate 

because the plaintiff does much more than simpl[y] analyze the 

numbers, which is . . . the main description for Financial 

Analyst." Judge Gaus reasoned that plaintiff 

actually manages money on behalf of his 

clients. And that seems to fit much more into 

the Personal Financial Advisor category, even 

if you cut out the insurance component. 

But beyond that, the [c]ourt imputed 

income to the defendant at the median level

. . . and that income is $81,060. Even if I 

had use[d] the Financial Analyst category, I 

still would have stayed at the [fifty] percent

category and that income is $78,620. So it's 

certainly not in any way materially different 
9 A-3909-15T3

than the amount of income that was imputed to 

the [plaintiff].

. . . .

[T]his is somebody who is in fact in the 

. . . midst of the prime part of his career. 

He started doing this work back in the late 

'90s, the early 2000's. Although, he didn't 

submit at trial his W-2s and his taxes from 

when he worked at Lehman Brothers. He did 

testify that he was there in the late '90s, 

the early 2000's . . . . 

So the [c]ourt is satisfied that whether 

it should have been the Financial Analyst 

category or the Personal Financial Advisor 

category, the [fifty] percent level was 

appropriate for somebody who has been at this 

job and this career area for [fifteen], 

[sixteen], [seventeen] years. And whether it 

was [$]81,000 or [$]78,000 is not material. 

Although, the [c]ourt is satisfied that the 

Personal Financial category was the more 

appropriate.

Judge Gaus entered a memorializing order on March 30, 20162 and 

this appeal followed. 

On appeal, plaintiff renews the same arguments he presented 

to Judge Gaus. Because plaintiff's notice of appeal identified 

only the March 30, 2016 order denying reconsideration, our review 

is limited to that order. See R. 2:5-1(f)(3)(A); Pressler, Current 

N.J. Court Rules, comment 6.1 on R. 2:5-1 (2016) (citing Sikes v. 

 

2 As of the entry of the March 30, 2016 order, plaintiff's arrears 

totaled $4,329.13.
10 A-3909-15T3

Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd 

o.b., 138 N.J. 41 (1994). 

Turning to the court's denial of plaintiff's reconsideration 

motion, such motions are governed by Rule 4:49-2. "Reconsideration 

. . . is 'a matter within the sound discretion of the Court, to 

be exercised in the interest of justice[.]'" Palombi v. Palombi, 

414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. 

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). "A litigant 

should not seek reconsideration merely because of dissatisfaction 

with a decision of the [c]ourt." D'Atria, supra, 242 N.J. Super.

at 401. Reconsideration is only appropriate if "1) the [c]ourt 

has expressed its decision based upon a palpably incorrect or 

irrational basis, or 2) it is obvious that the [c]ourt either did 

not consider, or failed to appreciate the significance of 

probative, competent evidence[.]" Cummings v. Bahr, 295 N.J. 

Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. 

Super. at 401).

Reconsideration is not appropriate as a vehicle to bring to 

the court's attention evidence that was available but not presented 

in connection with the initial argument. Fusco, supra, 349 N.J. 

Super. at 463. Rather, a motion for reconsideration is designed 

to seek review of an order based on the evidence before the court 

on the initial motion, R. 1:7-4, not to serve as a vehicle to 
11 A-3909-15T3

introduce new evidence in order to cure an inadequacy in the motion 

record. Cummings, supra, 295 N.J. Super. at 384. Similarly, 

reconsideration cannot be used to merely "reargue a motion[,]" 

Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super.

299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008), but 

rather to point out "the matters or controlling decisions which 

[the litigant] believes the court has overlooked or as to which 

it has erred[.]" R. 4:49-2. 

We review the denial of a motion for reconsideration under 

the abuse of discretion standard. Cummings, supra, 295 N.J. Super.

at 389 (citing CNF Constructors, Inc. v. Donohoe Constr. Co., 57 

F.3d 395, 401 (4th Cir. 1995)). An abuse of discretion occurs 

"when a decision is 'made without a rational explanation, 

inexplicably departed from established policies, or rested on an 

impermissible basis.'" U.S. Bank Nat. Ass'n v. Guillaume, 209 

N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 

191 N.J. 88, 123 (2007)).

We have carefully considered the record in this matter and 

affirm substantially for the reasons set forth in the thorough and 

thoughtful opinion of Judge Gaus. 

Affirmed.