(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 14, 1995 -- Decided July 10, 1995
GARIBALDI, J., writing for a unanimous Court.
Debra and James Pascale were married in 1977. They have three children. On October 28, 1990,
Debra filed a complaint for divorce against James. On March 19, 1991, the trial court, on an interim basis,
ordered 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 granting joint custody of the children, designating Debra as the "residential custodial parent," and
setting forth a schedule of visitation for James. During the school year, James would have "parenting time"
of Wednesday and Thursday evenings from approximately 5:30 to 8:30 p.m., and a twenty-four hour overnight
stay each weekend. During the summer, James would have the children overnight on both Wednesday and
Thursday. The parties would alternate major holidays with the children.
A dual judgment of divorce was granted by the trial court following a six-day trial. Under the terms
of the divorce, the court incorporated by reference the child custody and "parenting time" order of September
23, 1991. The trial court refused James' request to term the custody arrangement "nontraditional." The
court did not find James exempt from paying a proportionate percentage of his salary to Debra, which equals
fifty-eight percent of the amount needed to support the children. The trial court based its child support
award on Debra's gross annual income of $52,500 and James' gross annual income of $72,500. Debra was
ordered to contribute, from her own salary, support equalling forty-two percent of the childrens' necessary
expenses per year. To determine the amount of support, the 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 (section 34-23), and the quality of life desired by both parties for their children. This led the 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.
On appeal, the Appellate Division reversed the decision of the trial court, finding that the Pascales'
joint custody arrangement was nontraditional and that the trial court had failed to explain its rationale for
the child-support award. The matter was remanded to the trial court for reconsideration of the child-support
order.
The Supreme Court granted Debra's petition for certification to review the Appellate Division's
ruling that the custody and visitation agreement was nontraditional and that, therefore, the Child Support
Guidelines, or an extrapolation therefrom, were not applicable. The Court also granted James' petition for
certification to review the Appellate Division's finding in respect of the equitable distribution of stock options
acquired by Debra shortly after marriage ended.
HELD: James and Debra Pascale entered into a traditional custody arrangement that provided that they share joint legal custody of their children, but that Debra be the primary caretaker. The parent who acts as the primary caretaker for the children after divorce should retain authority over the disbursal of the child support that both parents must provide. The parameters established at N.J.S.A. 2A:34-23a should guide a court when determining child-support awards in a traditional custody
arrangement when the parents' combined income exceeds the $52,000 limit covered by the Child
Support Guidelines.
1. Child support is the right of the child and the responsibility of both parents after divorce. In establishing
the necessary level of child support, our courts look to the Child Support Guidelines, which apply to a
combined family income of up to $52,000. If the combined family income exceeds $52,000, the trial court has
the discretion to apply the guidelines up to that amount, using Appendices IX-A and IX-B to determine the
baseline amount or percentage of the combined income attributable to both the primary and secondary
caretakers, and to supplement that preliminary figure with an additional support amount based on the
remaining family income and the factors enumerated in section 34-23a, particularly a(4), which requires
consideration of the tasks of the primary caretaker. A court should also consider the factors set forth in
section 34-23 in "nontraditional" custody arrangements. The key to both the Guidelines and the statutory
factors is flexibility and the best interest of children. (pp. 6-12)
2. In the future, the parties should differentiate between "joint legal custody" and "joint physical custody."
Joint legal custody is defined as authority and responsibility for making "major" decisions regarding the
child's welfare. Joint physical custody is defined as joint responsibility for day-to-day decisions and the
exertion of continuous physical custody by both parents over the child for significant periods of time. In New
Jersey, cases of joint physical custody are rare, however, there is a wide variety of parenting time for non-custodial parents. (pp. 12-16)
3. Because the terms custodial and non-custodial parent fail to describe custodial functions accurately, the
Court adopts the term "primary caretaker" to refer to the "custodial parent" and the term "secondary
caretaker" to refer to the "non-custodial parent." The primary caretaker has the greater physical and
emotional role, performing the everyday tasks of child-rearing. Factoring the role of the primary caretaker in
child-support matters will serve the child's best interests. In determining the level of child support, courts
must consider: the tasks performed by the primary caretaker on behalf of the children of the divorce; the
necessity that the primary caretaker receive most of the secondary caretaker's child support; and the
necessity that the primary caretaker decide how that support is to be disbursed to provide for the children.
In order to take care of the child's basic needs, the primary caretaker should be accorded autonomy over the
day-to-day structure of and disbursal of child support for the new family unit. (pp. 16-19)
4. The Pascales' custody arrangement is traditional, with Debra acting as the primary caretaker. Based on
the trial court's detailed analysis of the children's expenses and its just determination of which parent should
pay for particular expenses, the trial court properly calculated the child-support contributions of each parent
according to the governing procedure for divorced parents whose family income exceeds $52,000. The trial
court took careful measures to assure that each parent paid their fair share of the children's needs, and gave
the primary caretaker the autonomy and authority to disburse the support ordered by the court, allowing the
secondary caretaker to retain a small portion of the amount of total need of parenting time. (pp. 19-29)
5. Stock options awarded after the marriage has terminated but obtained as a result of efforts expended
during the marriage should be subject to equitable distribution. Thus, the two stock options acquired by
Debra on November 7, 1990, just ten days after the filing of the divorce complaint, are subject to equitable
distribution. The Court affirms only so much of the Appellate Division decision that includes, for purposes
of equitable distribution, the option for 1,800 shares of stock . The Court reinstates the trial court's order for
child support in its entirety and its inclusion of the option for 4,000 shares of stock in the marital estate for
purposes of equitable distribution. (pp.29-37)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI'S opinion.
SUPREME COURT OF NEW JERSEY
A-91/
92 September Term l994
DEBRA PASCALE,
Plaintiff-Appellant
and Cross-Respondent,
v.
JAMES PASCALE,
Defendant-Respondent
and Cross-Appellant.
___________________________
Argued February 14, l995 -- Decided July 10, 1995
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
274 N.J. Super. 429 (l994).
Laura M. Le Winn argued the cause for
appellant and cross-respondent.
Bruce I. Afran argued the cause for
respondent and cross-appellant.
The opinion of the Court was delivered by
GARIBALDI, J.
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.
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 l9, l99l, 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 $l,250 per month for the first twelve
months, to be reduced to $l,l50 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 (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 $l,250 per month initially, which was to
be reduced to $l,l50 per month permanently on August l, l993.
Id. at 444-45. 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, were not
applicable. James petitioned this Court for review of the
Appellate Division's finding that only the option for l,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 (l994).
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 (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 (App. Div.), certif. denied,
81 N.J. 52 (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.
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 (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. 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.
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 (App. Div. 1992) (quoting N.J.S.A. 2A:4-30.45) (citing inter alia Daly v. Daly,
21 N.J. 599, 609 (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 v.
Guglielmo,
253 N.J. Super. 531, 539, (1992). The non-custodial
parent's unmet responsibility to provide support to his children
immediately after the divorce was not lessened by his later
contributions to college education. Id. at 546. Because the
responsibility to support runs from parent to child, not parent
to parent, the custodial parent was not "unjustly enriched" by
receiving sums and considering them overdue payments for the
support of those children. Ibid.
This Court has consistently upheld the right of children of
divorce "to be supported at least according to the standard of
living to which they had grown accustomed prior to the separation
of their parents." Ibid. (citing Lepis v. Lepis,
83 N.J. 139,
150 (1980)). The financial obligations of both custodial and
non-custodial parents are "mainly determined by the quality of
economic life during the marriage, not bare survival," post-divorce, for their children. Lepis, supra, 83 N.J. at 150. In
addition, an increase in those children's needs, whether by
maturation of those children, rising cost of living, or a "more
unusual event," must be met by an increase in support by
financially-able parents. Id. at 151. In determining both the
amount of money necessary to raise children of divorce and the
division of that obligation between working custodial and non-custodial parents, "the talisman of concern is always the welfare
of the child." Guglielmo, supra, 253 N.J. Super. at 546.
That both parents share the obligation to support their
children, irrespective of their marital status, is well
established in this state. Child support is the right of the
child and the responsibility of both parents, not a chip won or
lost by the custodial parent from the non-custodial parent during
divorce.
C. CHILD-SUPPORT GUIDELINES
In establishing the necessary level of child support, New
Jersey courts look to the Child Support Guidelines found in Rule
5:6A. Pressler, Current N.J. Court Rules (1995). That Rule
directs that such Guidelines
shall be applied when an application to
establish or modify child support is
considered by the court. The guidelines may
be modified or disregarded by the court only
where good cause is shown. Good cause shall
consist of a) the considerations set forth in
Appendix IX-A or the presence of other
relevant factors which may make the
guidelines inapplicable or subject to
modification, and b) the fact that injustice
would result from the application of the
guidelines. In all cases, the determination
of good cause shall be within the sound
discretion of the court.
Appendix IX-A of that Rule sets forth eight specific
"[c]onsiderations which may make these Child Support Guidelines
inapplicable or cause the child support amount to be adjusted."
Id. at Appendix IX-A. One of those enumerated "considerations"
has a direct bearing on the case at hand: "If the combined net
family income exceeds $52,000.00, the court shall apply the
guidelines up to that amount and supplement the guidelines award
with an additional support amount based on the remaining family
income and the factors enumerated in N.J.S.A. 2A:34-23." Id. at
Appendix IX-A, ¶ (1)(b) (emphasis added). Appendix IX-A also
states that "[t]hese child support guidelines are intended to be
applied to cases having traditional custody and visitation
arrangements." Id. at Appendix IX-A, ¶ (2). Appendices IX-B and
IX-C provide exact percentages and weekly contributions for
income levels up to $52,000. Id. at Appendices IX-B and IX-C.
In a traditional custody arrangement, when the income of the
parties exceeds $52,000, the child-support award may be
supplemented in accordance with N.J.S.A. 2A:34-23a, which
provides:
In determining the amount to be paid by
a parent for support of the child and the
period during which the duty of support is
owed, the court in those cases not governed
by court rule shall consider, but not be
limited to, the following factors:
(1) Needs of the child;
(2) Standard of living and economic
circumstances of each parent;
(3) All sources of income and assets of each
parent;
(4) Earning ability of each parent,
including educational background, training,
employment skills, work experience, custodial
responsibility for children including the
cost of providing child care and the length
of time and cost of each parent to obtain
training or experience for appropriate
employment;
(5) Need and capacity of the child for
education, including higher education;
(6) Age and health of the child and each
parent;
(7) Income, assets and earning ability of
the child;
(8) Responsibility of the parents for the
court-ordered support of others;
(9) Reasonable debts and liabilities of each
child and parent; and
(l0) Any other factors the court may deem
relevant.
Thus, the highlighted portions of N.J.S.A. 2A:34-23a support
the conclusion that the Legislature intended courts to consider
the tasks of the primary caretaker in allocating child-support
awards for children whose parents' combined income exceeds
$52,000 and for children whose parents choose nontraditional
custody arrangements. Those portions also demonstrate that in
either case, the trial courts have discretion in determining
child support. The key to both the Guidelines and the statutory
factors is flexibility and the best interest of children.
Initially adopted in 1986, the Child Support Guidelines from
Rule 5:6A and Appendix IX are reviewed biennially by the
Subcommittee on Child Support of the Family Practice Committee.
In late 1994, that Subcommittee began review of the support
schedules to base them on more current and accurate economic
estimates of child-rearing expenditures and to increase the upper
limit of those schedules. While we have not been presented with
any amendments to the Guidelines, we await those changes and
assume that they will incorporate the trends in this state that
are reflected in this opinion. Until then, child-support
determinations must be made under the governing law.
Thus, we hold that a trial court has discretion to calculate
child support for a family with a combined income over $52,000,
using Appendices IX-A and IX-B to determine the baseline amount
or percentage of the combined income attributable to both the
primary and secondary caretakers, and combining that preliminary
figure with a supplemental award subject to the provisions of
N.J.S.A. 2A:34-23a, particularly a(4), which requires
consideration of the tasks of the primary caretaker.
D. DEFINING LEGAL AND PHYSICAL CUSTODY
Prior to their divorce proceeding, the Pascales entered into
a mutual agreement to share joint legal custody of their three
children, but to have Debra act as their "residential custodial
parent." James asked this Court to term that custody arrangement
as "nontraditional" to lessen the amount of child support that he
must pay to Debra for their children.
In examining whether a custody arrangement is
nontraditional, we discard the term "joint custody" used by the
parties. That term is broad and misleading when applied to many
situations. Instead, we recommend that in the future parties
differentiate between the terms "legal custody" and "physical
custody" in defining their status and the forms of relief that
they are seeking from the court.
In common parlance, the term "joint custody" can mean the
sharing of both physical and legal custody of children, or the
sharing of legal custody, but not physical or residential
custody, between divorced parents. Despite the hopes of legal
reformers, true sharing between divorced parents of both physical
and legal custody of children is still rare in our society.
Therefore, we reaffirm that "[p]roperly analyzed, joint custody
is comprised of two elements -- legal custody and physical
custody," and find it important to break down the term "joint
custody" into legal and physical custody in reviewing a court's
determination of child support. Beck v. Beck,
86 N.J. 480, 486
(1981).
Joint legal custody, meaning the "authority and
responsibility for making 'major' decisions regarding the child's
welfare," is often shared post-divorce by both parents. Id. at
487. Joint legal custody provides rights and responsibilities to
custodial parents, but it also confers rights with less
significant responsibilities to non-custodial parents. Martha A.
Fineman, The Neutered Mother, The Sexual Family, and Other
Twentieth Century Tragedies 83 (1995) [hereinafter The Sexual
Family]. Indeed, that type of joint venture is found in the
majority of custody arrangements throughout the country today.
Elizabeth S. Scott, Pluralism, Parental Preference, and Child
Custody,
80 Cal. L. Rev. 615 nn.28 & 66 (citing Catherine R.
Albiston et al., Does Joint Legal Custody Matter?, 2 Stan. L. &
Pol'y Rev. 167 (1990) (finding that in California, eighty percent
of divorced parents have joint legal custody of their children);
W.P.C. Phear et al., An Empirical Study of Custody Arrangements,
in Joint Custody and Shared Parenting 142, 147 (Jay Folberg ed.,
1984) (finding, in search of Massachusetts court records, that
only ten percent of those families with joint legal custody also
had joint physical custody); Robert J. Racusin et al., Factors
Associated with Joint Custody Awards, 28 J. Am. Acad. Child
Adolescent Psychiatry 164 (1989) (finding that joint physical
custody is rare both in Vermont and New Hampshire)).
On the other hand, "joint physical custody" means joint
"responsib[ility] for 'minor' day-to-day decisions" and the
exertion of continuous physical custody by both parents over a
child for significant periods of time. Beck, supra, 86 N.J. at
487. Although there is no established norm for such custody,
experts cite common schedules for a child within a joint physical
custody framework as spending three entire days with one parent
and four entire days with another parent or alternating weeks or
even years with each parent. Judith S. Wallerstein & Sandra
Blakeslee, Second Chances: Men, Women and Children a Decade
After Divorce 257 (1989). Thus, the import from the voluminous
literature on the subject is that "joint physical custody" means
that the child lives day in and day out with both parents on a
rotating basis. Numerous "parenting times" with a child do not
constitute joint physical custody; to constitute joint custody,
each parent must exert joint legal and physical custody over the
child.
A review of New Jersey cases leads us to believe that
"joint physical custody" is as rare here as it is in other
states. The most common example of a time frame that constitutes
joint physical custody is found in Beck, supra, 86 N.J. at 493-94. In that case, the parties' arrangement was to alternate
physical custody of their daughters every four months. Id. at
494 (finding that trial court had made proper determination that
such joint physical custody could work).
In New Jersey, joint legal custody with physical custody
given to only one parent is much more common. Time spent with
the non-custodial parent may vary widely. In a recent case, the
Appellate Division defined "liberal visitation" to the non-custodial parent as consisting of alternate weekends, one night
per week, and alternate major holidays, including holidays like
Labor Day and extended school holidays. McCown v. McCown,
277 N.J. Super. 213, 214 (1994). We find that that type of schedule
for "parenting time" is common in cases of joint legal custody
with only one parent having physical custody. Thus, the
continuum in this State for the "parenting time" of non-custodial
parents is wide and the cases of "joint physical custody" are
rare.
E. PRIMARY-CARETAKER CONCEPT
In cases of only joint legal custody, the roles that both
parents play in their children's lives differ depending on their
custodial functions. In common parlance, a parent who does not
have physical custody over her child is the "non-custodial
parent" and the one with sole residential or physical custody is
the "custodial parent." Because those terms fail to describe
custodial functions accurately, we adopt today the term "primary
caretaker" to refer to the "custodial parent" and the term
"secondary caretaker" to refer to the "non-custodial parent."
Although both roles create responsibility over children of
divorce, the primary caretaker has the greater physical and
emotional role. Because the role of "primary caretaker" can be
filled by men or women, the concept has gained widespread
acceptance in custody determinations. See David L. Chambers,
Rethinking the Substantive Rules for Custody Disputes in Divorce,
83 Mich. L. Rev. 477 (1984); Richard Neely, The Primary Caretaker
Parent Rule: Child Custody and the Dynamics of Greed, 3 Yale L.
& Pol'y Rev. 168 (1984); see also Martha A. Fineman, Dominant
Discourse, Professional Language, and Legal Change in Child
Custody Decisionmaking,
101 Harv. L. Rev. 727 (1988). Indeed,
many state courts often determine custody based on the concept of
"primary caretaker." E.g., Burchard v. Garay,
724 P.2d 486 (Cal.
1986); Maureen F.G. v. George W.G.,
445 A.2d 934 (Del. 1982);
Agudo v. Agudo,
411 So.2d 249 (Fla. Dist. Ct. App. 1982); Rolde
v. Rolde,
425 N.E.2d 388 (Mass. App. Ct. 1981); Maxfield v.
Maxfield,
452 N.W.2d 219 (Minn. 1990); Riaz v. Riaz,
789 S.W.2d 224 (Mo. Ct. App. 1990); Burleigh v. Burleigh,
650 P.2d 753
(Mont. 1982); Crum v. Crum,
505 N.Y.S.2d 656 (App. Div. 1986);
Moore v. Moore,
574 A.2d 105 (Pa. Super. Ct. 1990); Pusey v.
Pusey,
728 P.2d 117 (Utah 1986); Harris v. Harris,
546 A.2d 208
(Vt. 1988); Garska v. McCoy,
278 S.E.2d 357 (W. Va. 1981).
In one of the earliest cases using the concept of "primary
caretaker," the Supreme Court of Appeals of West Virginia
articulated the many tasks that make one parent the primary,
rather than secondary, caretaker: preparing and planning of
meals; bathing, grooming, and dressing; purchasing, cleaning, and
caring for clothes; medical care, including nursing and general
trips to physicians; arranging for social interaction among
peers; arranging alternative care, i.e., babysitting or daycare;
putting child to bed at night, attending to child in the middle
of the night, and waking child in the morning; disciplining; and
educating the child in a religious or cultural manner. Garska,
supra, 278 S.E.
2d at 363. As do many other jurisdictions, we
find that that State's highest court's definition articulates
many of the duties of a primary caretaker.
Factoring the role of the primary caretaker in child-support
matters will serve the child's best interest. Accordingly, we
adopt the concept of primary caretaker and establish standards to
allocate the financial resources between separated and divorced
parents who have chosen to have one parent be the primary
caretaker and the other parent be the secondary caretaker. That
arrangement may have been patterned during their marriage or may
have been chosen during divorce proceedings. Most important, the
person who continues as or becomes the primary caretaker may be
father or mother. More fathers are becoming primary caretakers.
Child Support, supra, at 1 (finding 1.6 million custodial fathers
to 9.9 million custodial mothers). All caretaking represents a
major contribution to our society. Fineman, supra, The Sexual
Family, at 9. Thus, once the roles of primary caretaker and
secondary caretaker have been established, the courts should make
determinations about child support based on the assumption of
those roles.
In producing a stable financial and legal foundation post-divorce for the children of divorce, courts should allow the
primary caretaker to provide the children with their basic needs
and the secondary caretaker to maintain a close relationship with
the children. For the success of that structure, it makes sense
that the person who has assumed the role of primary caretaker not
be involved in a daily relationship with the secondary caretaker
about the financial needs of the children. Rather, when joint
custody is merely legal in nature, the primary caretaker should
be accorded autonomy over the day-to-day structure of the new
family in which he or she is the primary caretaker. That
structure is established by the courts, not to leave out the
secondary caretaker, but to assure that the child is as
undisturbed as possible in the implementation of the child's
parents' decision to make one parent the child's primary
caretaker. The primary caretaker who makes those day-to-day
decisions needs autonomy over the financial resources drawn from
both parents' salaries to effectuate those decisions without
endless discussion with the secondary caretaker.
F. THE PASCALES' CUSTODY AGREEMENT
James asserts that his "parenting time" with his children
constitutes a "nontraditional" custody arrangement. According to
James's testimony at trial, he cares for the children during the
ten-and-one-half-month school year on two weeknights from
approximately 5:30 p.m. to 8:30 p.m., and on each weekend he
cares for them during one, twenty-four-hour, overnight stay.
During the remaining seven weeks of the year, the children's
summer vacation, he testified that he takes turns with Debra
caring for their children. However, James's assertion that that
arrangement changes a situation of only joint legal custody to
one of a "nontraditional" physical arrangement approximating
joint physical custody is in direct conflict with the governing
law of our state. Supra, at (slip op. at 15). In accord with
the binding legal agreement between the parties that grants James
only joint legal custody, the Pascales' arrangement parallels the
norm in our society of physical custody to the primary, not the
secondary, caretaker.
James has not presented sufficient evidence that the
arrangement at hand is anything other than a "traditional" one.
For example, having the children one day each weekend, rather
than alternate weekends, results in the same amount of time for
him over the course of a year as the prototypical secondary
caretaker. While he shares joint legal custody with Debra, only
Debra has physical custody of the children and only she acts as
their primary caretaker. It is Debra who, more than eighty
percent of the year, wakes the children at 6:00 a.m., assists
them in bathing and dressing, prepares their breakfast and lunch,
and gets them to school, camp, or extracurricular activities.
For the latter task, she works "flex hours" during the workweek,
to enable her to drive the children to school on certain days.
Those tasks that Debra performs for the children are typical of
the tasks performed by a primary caretaker. Supra, at (slip
op. at 17). Thus, based on all the foregoing factors, we reject
James's assertion that his visitation approximates the
"nontraditional" custody defined by this Court in Beck, supra,
and agree with the trial court that the Pascales have a
traditional custody arrangement.
Divorced parents remain fully responsible for their
children, regardless of the custody arrangement that they choose
or the court orders. When divorced parents are unable to agree
on the proper care and level of financial support for their
children, courts must step in and act as an objective arbiter,
always with the best interests of the children in mind. That is
what the trial court did. Because the Pascales' combined income
exceeds $52,000, the trial court based the final child-support
figures on its consideration of the factors set forth in N.J.S.A.
2A:34-23 -- the same factors a court should refer to in
determining child support in a nontraditional custody arrangement
-- as well as the governing Child Support Guidelines of Rule
5:6A.
Nonetheless, the trial court's use of those factors in this
case does not change the Pascales' custody arrangement from
traditional to nontraditional. The trial court's determination
that the Pascale's custody arrangement is traditional rather than
nontraditional is consistent with our view that visitation in
excess of one day per week for the non-custodial parent does not
constitute a nontraditional custody arrangement.
G. THE PASCALES' CHILD-SUPPORT AGREEMENT
In determining the proper amount of child support and
allocation of other expenses between James and Debra, the trial
court took great pains to assure that both parties would have to
pay their fair share of the children's basic needs and that the
parent who assumed the role of primary caretaker, Debra, would be
given autonomy and authority over the disbursal of child support
ordered by the court. The trial court's calculation of the
various expenses of the parties was as meticulous and clear as
its comprehension of what does and does not constitute a
"nontraditional" custody arrangement. In effect, the trial court
found that the children's yearly need exceeded $25,000 and that
James would be responsible for fifty-eight percent and Debra
would be responsible for forty-two percent of their children's
needs, a reflection of the breakdown of their combined income.
Following Walton v. Visgil,
248 N.J. Super. 642, 649 (App.
Div. 1991), the trial court below correctly stated that when a
family's combined income is above $1,000 per week, "it is
appropriate that one must add on, one must not subtract" from the
amount of money expected to be spent by parents of three children
with that income level. In accord with Lepis and Guglielmo,
supra, the trial court determined that the parties had chosen an
above average, but appropriate, standard of living for their
children.
Given that standard, however, the Pascales could not
maintain two large and equal houses for both the children's daily
living with Debra and their visitation with James. Splitting a
once-joint income is inevitable in divorce. Confronting that
dilemma, the trial court reasoned correctly that the parties'
choice to live separately -- yet maintain the children at the
same level -- dictated that the ex-spouses could not live
equally: Individually, they cannot maintain the standard that
they achieved as a married couple. Accordingly, the children
were to remain in the larger house with the primary caretaker who
cares for them on a daily basis.
The court found Debra's concession to sell the marital home
in five years, when the oldest child was to begin high school, to
be reasonable and in the best interests of the children. The
court also found it indicative that she was willing to accept a
decrease in her children's standard of living -- including a move
to a smaller house to be purchased in late 1997 -- as a necessary
result of divorce and the splitting of the Pascales' formerly
combined income. The trial court, however, found that James had
not demonstrated why he needed a house of equal size when he was
not the primary caretaker of the children, and lived in a fully
furnished, three-bedroom house in Lawrence Township. Instead,
the court reasoned that Debra's claims, not James's claims,
corresponded with the financial reality of maintaining three
children at a living standard comparable to that enjoyed pre-divorce as well as maintaining two adults in separate households
on the same combined income, post-divorce. On this record, we
are satisfied that the trial court properly balanced the housing
interests of Debra and James in the context of the children's
reasonable needs. Nevertheless, in analogous situations, we
would deem it appropriate for trial courts, in structuring child-support awards, to take into account the interests of both
parents in maintaining housing accommodations suitable for their
custodial role, emphasizing the needs of the primary caretaker
but simultaneously attempting to reflect the reasonable needs of
the secondary caretaker.
In deciding the percentage of that total amount to be
allocated to each parent, the trial court considered James's
income to be $790 less annually than what he had presented
throughout trial and Debra's income to be $500 more annually than
what she had presented at trial, $72,500 and $52,500,
respectively. The court then determined the breakdown of those
figures into percentages of responsibility for the children's
needs, fifty-eight percent to James and forty-two percent to
Debra. Invoking Rule 5:6A, the trial court then calculated the
baseline child support for a couple earning $52,000 or more and
applied those percentages in the following manner. Using the
figures found in Appendix IX-C of Rule 5:6A, the court chose to
use a median guideline figure for weekly support of a family with
three children and an income of $1,000 per week -- $386. With
that median figure, the baseline need for the Pascale children
would be $20,072, per year.
Applying Walton, supra, 248 N.J. Super. at 649-51, the court
then added to, rather than subtracted from, that baseline. After
listening to five days of the parties' testimony and their almost
unanimous agreement on the needs of their children, the trial
court relied on Debra's detailed estimates for the representative
amounts needed to maintain the children. Referring to the
factors found in N.J.S.A. 2A:34-23a, the trial court found that
the actual need was greater than $25,000 per year. In so doing,
the court focused on the fact that both James and Debra Pascale
wanted to maintain comfortable lifestyles for their children,
particularly high quality, year-round child care, which as
working parents they both wanted, and various enrichment
programs. For example, the court accepted that that type of
child care cost at least $618 per month, consisting of daily
child care for the twins and $4,000 for summer day camp for all
three children. The court acknowledged that part of Debra's
gross income would automatically be spent to pay for summer day
camp and that Debra would also pay for daily child care. Thus,
relying on many such examples, the court valued at over $25,000,
the children's basic, year-round needs.
Finding that the children's needs and the parent's choices
for education and extracurricular activities were "substantial,"
the trial court then divided that need by the percentage of
income attributed to each parent, taking into account Debra's
constant responsibility as the children's primary caretaker to
pay for child care during the school year and the summer. Based
on that calculation, the court found that James's fifty-eight
percent and Debra's forty-two percent contributions to their
children's yearly needs would equal approximately $1,230 per
month and $890 per month, respectively.
After providing for large and constant expenses of the
children via child-support contributions between the Pascales,
the trial court then ordered the allocation of other expenses for
the children, specifying either the primary or secondary
caretaker as responsible for particular expenses. For example,
after listening to voluminous testimony about the child care that
both parties agreed was necessary for their children, the court
found that James's child-support payments were to be inclusive of
any contribution to child care and babysitting expenses for the
children. For medical care, orthodontia, and religious training,
Debra assumed a greater burden than James. Making Debra
responsible for health insurance coverage for the children, the
trial court ordered the parties to share any medical expenses for
the children not reimbursed by Debra's health insurance, finding
that James would pay the first $500 per year toward the aggregate
unreimbursed medical expenses for the children, followed by a
sixty-to-forty-percent split between James and Debra thereafter.
In addition, the trial court ordered Debra to be responsible for
all orthodontia. Also, the trial judge ordered the parties to
divide the costs of religious training for their children, but
made Debra responsible for all summer day camp expenses.
However, the total amount to be spent by each parent per month
equalled their children's basic needs, given their parents'
choice of lifestyles for them.
The trial court did not allow Debra the $l,500 per month
child support that she had requested that the court order from
James. After recognizing that the Pascales' income exceeded the
amount found in the guidelines, the court stated:
[L]ooking at the parties' level of expenses,
[and] recognizing that the plaintiff's demand
in this case is $l,500 per month, I have
concluded that the order of the Court will be
that the defendant will pay the monthly sum
of $l,250 per month starting August l, l992
and extending until August l, l993;
thereafter, it will be reduced to $l,l50 per
month which will remain as it is until the
emancipation of the children.
While the Appellate Division found that the trial court
should have more carefully set forth its findings of how it
arrived at the specific amount(s), $1,250 reduced to $1,150, of
child support that James must pay, we infer that in its
discretion, the trial court lowered James's amount of child
support due to James's assumption of the role of secondary
caretaker of his children. In that role, James frequently sees
his children, provides them with some dinners, takes them to
their activities, and keeps them overnight in accordance with the
schedule set out in the custody order. Through that role, James
plays an integral and on-going part in his children's lives, but
he is not their primary caretaker.
Based on the trial court's meticulous and detailed analysis
of the children's expenses and its careful and just determination
of which parent should pay for particular expenses, we find that
the trial court properly calculated the child-support
contributions of each parent according to the governing
procedure. When the combined income of the divorced parents
exceeds $52,000, the Child Support Guidelines provide that a
trial court may, in its discretion, consider the factors
enumerated at N.J.S.A. 2A:34-23, to add to the baseline figure of
child support. The trial court took careful measures to assure
that both parties pay their fair share of the children's basic
needs, that the primary caretaker be given autonomy and authority
over the disbursal of child support ordered by the court, and
that the secondary caretaker retain a small portion of the amount
of total need for parenting time. We, therefore, affirm the
trial court's award and find no need for remand in this matter.
One court recently reasoned:
[R]egardless of the words used to describe
the custodial relationship, the residential
custodial parent has been afforded somewhat
more authority to decide issues in the event
of a disagreement. The rationale for this,
as expressed in Boerger v. Boerger, [26 N.J.
Super 90, 104 (Ch. Div. 1953)] is that the
parent with whom the child resides most of
the time probably knows that child best,
because of day-to-day exposure to the child
and to the child's problems.
. . . It is fully consistent with the reasonable
expectations of the parties, . . . that that
parent given the responsibility for the day-to-day rearing of the children should be able
to discharge that responsibility (subject, as
always, to notification to, and dialogue
with, the joint custodial parent).
The contrary holding will produce
applications, emergent and otherwise, to the
court whenever the parties cannot reach
agreement.
We agree with the Brzozowski court. To provide for the children
of divorce, finalize living structures, and relieve stress from
the child's life and the lives of both parents, grants of
authority to the primary caretaker are necessary. This "child-centered view" of the problems associated with child support is
neither pro-father nor pro-mother, but pro-child. Ira C. Lupu,
The Separation of Powers and the Protection of Children,
61 U.
Chi. L. Rev. 1317, 1337 (1994). Such a grant of authority
observes the guiding principle that child support runs between
parent and child, rather than parent and parent.
When Debra began her employment with Liposome Company on April l4, l987, she was immediately granted the option to purchase 5,000 shares of stock in Liposome. As of the date of trial, Debra owned the following options:
Date Granted Number of Shares
April l4, l987 5,000
June 7, l989 650
November 30, l989 5,650
January 4, l990 l,469
November 7, l990 4,000
November 7, l990 l,800
November l5, l99l l,500
Debra filed for divorce on October 28, 1990. Neither party disputed that the stock-option grants awarded prior to the filing of Debra's divorce complaint are subject to equitable
distribution, and that the stock-option grant awarded on November
l5, l99l, was not subject to equitable distribution. However,
Debra has argued that the stock-option grants awarded to her on
November 7, 1990, approximately ten days after she filed for
divorce, were not subject to equitable distribution. Based on
language in the accompanying transmittal letters, she asserts
that the option for 1,800 shares was issued in recognition of
past performance and that the option for 4,000 shares was awarded
in recognition of a job promotion that imposed increased
responsibility on her in the future.
The trial court found that neither of the two stock options
granted on November 7, 1990, could be excluded from equitable
distribution. That court found that those two stock options from
the Liposome Company that were issued immediately after the
divorce complaint had been filed were to be divided equally among
the parties. Finding "that the case law supports a flexible
approach in determining which assets are includable and which
assets are not includable for equitable distribution," the trial
court opined that it would be unfair to permit Debra "to retain
fruits derived during marriage simply because of a technical
determination regarding her choice of a filing date."
However, the Appellate Division found that only one of the
two options awarded on November 7, l990, approximately ten days
after the filing of the divorce complaint, should have been
included in the marital estate, while the other should have been
excluded. 274 N.J. Super. at 437-40. The Appellate Division
based that decision on its interpretation of the facts, finding
that the option for 4,000 shares of stock was granted in
recognition of a promotion in job responsibility and an increase
in salary; therefore, that option was "more appropriately . . .
designed to enhance future employment efforts" and should not
have been included in the marital estate. Id. at 439. However,
as to the other option for l,800 shares of stock, the Appellate
Division found that that option was granted in recognition of
past employment performance. Id. at 440. That option,
therefore, was properly includable in the marital estate
notwithstanding the date-of-complaint rule based on equitable
considerations, as discussed in Kikkert v. Kikkert, l
77 N.J.
Super. 47l (App. Div.), aff'd o.b.,
88 N.J. 4 (l98l). 274 N.J.
Super. at 440.
In his cross-petition for certification, James urged this
Court to find that the Appellate Division had exceeded its scope
of review in substituting its own findings of fact for those of
the trial court because the record contained adequate and
substantial evidence to support the trial court's conclusions.
Although the Legislature has amended the governing statute,
N.J.S.A. 2A:34-23, several times since Painter v. Painter,
65 N.J. 196 (1974), the guiding principle of Painter remains:
Property "clearly qualifies for distribution" when it is
"attributable to the expenditure of effort by either spouse"
during marriage. Id. at 214. On many occasions, this Court has
declared that marriage is viewed as "'a shared enterprise, a
joint undertaking, that in many ways -- is akin to a
partnership.' Therefore, marital assets acquired in the course
of that joint undertaking fairly should be included in the estate
subject to equitable distribution." Portner v. Portner,
93 N.J. 215, 219 (1983) (quoting Rothman v. Rothman,
65 N.J. 219, 229
(1974)). The asset in dispute falls into that category.
The brightline rule of Painter is that the date on which a
divorce complaint was filed fixes the marital termination date
for equitable distribution purposes. 65 N.J. at 218. The
exceptions to the Painter rule have usually followed the
pinpointing of a timeline for "irretrievable breakdown" of a
marriage. See, e.g., Brandenburg v. Brandenburg,
83 N.J. 198,
205-06 (1980). Those cases are factually specific with focus on
the timing of marital breakdown.
This case, however, is not concerned with whether the
marriage ended prior to the date of complaint, but whether
certain assets distributed after that date were acquired during
the marriage, and consequently are subject to equitable
distribution. The focus thus becomes whether the nature of the
asset is one that is the result of efforts put forth "during the
marriage" by the spouses jointly, making it subject to equitable
distribution.
To refute such a presumption, the party seeking exclusion of
the asset must bear "'the burden of establishing such immunity
[from equitable distribution] as to any particular asset.'"
Landwehr v. Landwehr,
111 N.J. 491, 504 (1988) (quoting Painter,
supra, 65 N.J. at 214). In Kikkert, supra, this Court approved
of the Appellate Division's characterization of a pension benefit
as "the result of direct or indirect efforts expended by one or
both parties to the marriage -- it is additional compensation for
services rendered for the employer and a right acquired during
the marriage." l77 N.J. Super. at 476. Consequently, in that
case, the court remanded the matter to the trial court for a
determination of the present value of the non-pensioned spouse's
interest in the pension as part of the marital estate subject to
equitable distribution. Id. at 477-78.
In a similar manner, stock options awarded after the
marriage has terminated but obtained as a result of efforts
expended during the marriage should be subject to equitable
distribution. The inequity that would result from applying
inflexibly the date of complaint rule is obvious. James would be
denied the benefit of stock options that were earned by Debra
during the marriage, but were not awarded to her until slightly
after the marriage terminated. Serious mischief could arise
under such a hard-and-fast rule. For example, a spouse
considering divorce might file her complaint just before she
expects to receive a large bonus or commission, simply to deny
her spouse the benefit of that asset when the court determines
the value of the marital estate.
Although we understand both Debra and the Appellate
Division's distinctions between the two stock options, we are
unconvinced that one is subject to equitable distribution and
the other is not. Despite the award of the option for 4,000
shares of stock in recognition of Debra's promotion, the trial
court made a cr