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NOT FOR PUBLICATION WITHOUT THE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,

v.

DAVID RICHARD HAND,

Defendant-Appellant.

_________________________________

T.B.1,

Plaintiff-Respondent,

v.

DAVID RICHARD HAND,

Defendant-Appellant.

________________________________

Argued Telephonically November 7, 2013 –

Decided

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.

December 18, 2013

APPROVED FOR PUBLICATION

December 18, 2013

APPELLATE DIVISION
2 A-5430-11T4

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.
3 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. 
4 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 
5 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/heavyand-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 
6 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 
7 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 
8 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).
9 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.
10 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"). 
11 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." 
12 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.