The opinion
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0378-15T3
MICHELE SPANO-TERLIZZI,
Plaintiff-Respondent,
v.
LEE SPANO,
Defendant-Appellant.
_______________________________________
Submitted February 9, 2017 – Decided May 30, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FM-08-0812-13.
Matthew B. Lun, attorney for appellant.
Michele Spano-Terlizzi, respondent pro se
(Rebecca A. Berger, on the brief).
PER CURIAM
Defendant Lee Spano (father) appeals from a provision in an
August 7, 2015 Family Part order obligating him to pay $391 per
week in child support to plaintiff Michele Spano-Terlizzi
(mother), the primary caretaker of the parties' two children.
Following our review of the record and applicable legal
principles, we remand for further proceedings.
I
The parties were married in 1999 and divorced in 2010.
They have two children, presently ages twelve and sixteen. The
mother has remarried, and she and her husband, Michael Terlizzi,
have one child.
In accordance with the parties' marital settlement
agreement, the father provided health insurance for their two
children until December 2013, when he lost his job. At that
job, the father received health insurance benefits for the
children. Terlizzi then put the parties' two children on a
health insurance plan (plan) he had obtained through his
business. Although initially the addition of the two children
on the plan did not increase the premium, on June 1, 2014, the
premium soared to $507.44 per month.
In April 2015, the mother filed a motion seeking, among
other things, that the father pay the cost to maintain the two
children on the plan, as well as reimburse her for premiums on
the children's behalf since June 1, 2014. She also sought an
increase in child support.
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The father filed a cross-motion requesting, in addition to
other relief, the mother's motion be denied. In his
certification, the father challenged whether the mother or,
rather, Terlizzi on her behalf, actually incurred any out-of-
pocket cost for maintaining the children on the plan. The
father pointed out an exhibit the mother attached to her motion
revealed Terlizzi's business, not Terlizzi, was paying the cost
to provide health insurance for the parties' children. The
father did not suggest Terlizzi or his business was responsible
for paying for the children's insurance, but he did posit the
expense of maintaining the children was likely deducted as a
business expense, resulting in the elimination or reduction of
the actual cost of the premium to Terlizzi and, in turn, to the
mother.
In her certification in response to the father's cross-
motion, the mother failed to provide any competent evidence to
refute the father's contention. She merely attached a letter
from the business's insurance agent, who proffered the opinion
the employees of Terlizzi's business are "required to pay 100%
for dependents." However, there was no evidence the insurance
agent was qualified to render this opinion, or had personal
knowledge of how the children's premiums were in fact being
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paid. Moreover, there was no evidence Terlizzi was considered
an employee of his company.
On August 7, 2015, the court entered an order that directed
the father to reimburse the mother for the premiums she paid for
the children's health insurance beginning in June 2014, but
denied her motion to compel the father to pay current premiums.
The court did order the cost of the children's premiums, "after
crediting [the mother] with the amount paid by her current
spouse, . . . be made part of the child support guideline
calculation." The court also recalculated the father's child
support obligation and increased it from $298 to $391 per week.
In its calculation of child support, the court factored into the
equation that the mother was paying $130 per week for both
children's health insurance premiums.1
II
On appeal, the father contends the $391 per week in child
support he was ordered to pay is erroneous because the court
improperly assumed the mother was paying the full cost to
provide health insurance for the parties' children. We agree.
1
The record does not disclose how the court found the cost to
maintain the parties' children on the plan was $130 per week.
It was not disputed the cost to pay for both children's health
insurance increased to $524.04 per month by the return date of
the motion, which made the weekly cost $121.86 and not $130 per
week.
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"The general rule is that findings by the trial court are
binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12
(1998); see also Gnall v. Gnall, 222 N.J. 414, 428 (2015).
"Because of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord
deference to family court fact[-]finding." Cesare, supra, 154
N.J. at 413. It is only "when the trial court's conclusions are
so 'clearly mistaken' or 'wide of the mark'" that we "intervene
and make [our] own findings to ensure that there is not a denial
of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196
N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007)). However, "[a] trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
Here, based upon evidence attached to the mother's
certification, the father legitimately raised the question of
whether Terlizzi's business was contributing toward the cost of
the children's health insurance premiums and, if so, the extent
to which the cost to the mother to maintain this plan for the
children was reduced or even eliminated. The mother did not
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effectively refute the father's contentions, leaving unanswered
this material question of fact.
By our calculations, if the mother is not paying for any
health insurance premiums, the father's child support obligation
would be $316 per week, a savings of $322.50 per month for the
father. Even if the mother were paying only half of the
purported cost of $130 per week for the children's health
insurance, the father's child support would be reduced to $362
per week, a savings to him of $124.70 per month.
Because the question of fact raised by the father's
certification cannot be resolved on the basis of the parties'
conflicting certifications, we are constrained to vacate the
provision in the August 7, 2015 order that directed the father
to pay $391 per week in child support, and remand this matter
for further proceedings. On remand, the court shall determine
the actual cost of the children's health insurance premiums and
recompute child support.
Although, in general, a court must hold a plenary hearing
when confronted with disputed material facts, see Milne v.
Goldenberg, 428 N.J. Super. 184, 201 (App. Div. 2012), we
recognize not every factual dispute requires a hearing.
Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.),
certif. denied, 142 N.J. 455 (1995). Here, discovery may
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unearth evidence dispositive of this issue, rendering a fact-
finding hearing unnecessary. The court shall exercise its
discretion when determining what is required to resolve this
dispute and, if necessary, conduct a plenary hearing if it
perceives there are genuine issues of contested material fact
warranting testimony and credibility findings.
Remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction. Any party aggrieved by
the outcome of the remand seeking appellate review must file a
timely new appeal from that determination.
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