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Narvae v. Freestone

January 26, 1995


Conforti, J.s.c.

The opinion of the court was delivered by: Conforti


Conforti, J.S.C.

In this post-judgment divorce motion, defendant, Matthew Freestone, appearing pro se, seeks to modify his child support obligation based upon changed circumstances and the non-traditional custody-visitation arrangement between the parties. Plaintiff, Darlene Narvae (formerly Darlene Freestone) appearing pro se, filed answering papers opposing defendant's motion and also a cross-motion seeking an increase in child support from defendant. The court grants defendant's motion and denies plaintiff's cross-motion. In calculating defendant's modified support obligation, the court has applied the rationale of Pascale v. Pascale, 274 N.J. Super. 429, 440-45, 644 A.2d 638 (App. Div. 1994). To date there are no reported decisions addressing this calculation.

The court finds the following facts. Plaintiff and defendant were married on February 19, 1977, and two children were subsequently born of this marriage: L.F. - born April 20, 1983 and D.F. - born September 5, 1984.

The parties are the subject of a Judgment of Divorce filed September 2, 1992, which included the following determination concerning custody and vacations:

The parties shall have the joint, legal custody of the parties' minor children. The parties shall share the custodial time each is entitled to as follows:

a. The Defendant shall have the children in alternate weeks commencing Wednesday immediately after school (approximately 3:00 or 3:30 PM) through Monday at 8:00 AM. The Defendant shall drop the children off directly at school. The Defendant shall also have the children the following week from Friday after school (approximately 3:00 PM) until Saturday at 10:00 AM.

b. In the event any Monday is a holiday and the Plaintiff does not work, then the children shall be returned at 8:00 AM to the Plaintiff. In the event the Plaintiff has to work on a holiday and the Defendant does not work, then the Defendant may keep the children until 5:00 PM Monday evening. In the further event that both parties do not work on that Monday, then the parties shall alternate that Monday holiday. (If either party picks up or drops off the children more than 30 minutes late [except in case of an emergency], he or she shall lose double that amount of time during the next custodial visitation.

SUMMER VACATIONS: The parties shall be entitled to have the children in their physical custody three, uninterrupted weeks each summer. Said period may be continuous or broken up into 3 one week periods or two weeks and one week. Each party shall notify the other party by May 1st as to which three weeks they will desire to spend with the children. The Defendant, however, shall be entitled each year to have the children for two weeks (being 2 of his 3 weeks) during the time that his employer closes the company. The remaining 4 weeks the children are out of school each summer, the Plaintiff shall have the children in alternate weeks commencing on Wednesday at 3:30 PM through Monday at 8:00 AM and the following week on Friday at 3:30 PM until Saturday at 10:00 AM. The Plaintiff, however, shall be entitled to have the children in her company the first two weeks (being 2 of her 3 weeks) following the close of school each summer (June of each year).

SCHOOL VACATIONS OTHER THAN SUMMER VACATIONS: The parties shall alternate all school vacations during the year, such as Christmas break, winter and spring breaks (except summer).

This custody-visitation arrangement remains in place and there has not been any substantial variation of this arrangement.

In a letter opinion of March 30, 1992, deciding outstanding issues between the parties, the divorce trial Judge found with respect to child support:

There is an issue with respect to the applicability of the child support guidelines in this case. First, there is the issue whether the guidelines apply at all because the custody arrangement that has been worked out between the parties provides for a nearly equal custody - sharing arrangement. Defendant argues that the child support guidelines should not apply to a situation such as this, the guidelines being applicable only in the more usual custody arrangement where the custodial parent has the children for most of the time, and the non-custodial parent has limited visitation. There is an additional issue with respect to the fact that the parties combined net income exceeds the guideline's figure. However, this court believes that in a case such as this where the excess over the guidelines figure is relatively small, that it is appropriate to extrapolate the guideline's figures. This court is satisfied that the guidelines do apply to this situation. The guidelines apply because it is necessary for the custodial parent to have housing available, have utilities in place, provide most of the clothing, school needs and the like. In fact, the only tangible benefit that a relatively equally shared custody arrangement will provide to the custodial parent is a reduced expense for food for the children, and perhaps some incidental expenses for entertainment and the like. In this case, there is ample reason to simply apply the guidelines based upon the net weekly income of the parties. This will tend to balance out two factors which probably should be considered by the court; the first being that the defendant has earned a bonus every year for the last 5 or 6 years, and can probably rely upon the bonus as part of his pay. *fn1 The bonus may be offset against the reduced ...

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