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Winterberg v. Lupo

April 24, 1997


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County.

Approved for Publication April 24, 1997. As Corrected May 12, 1997.

Before Judges Michels, *fn1 Muir, Jr. and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by


Defendant, Jay Lupo, appeals from an order entered in the Family Part on March 11, 1996. Defendant contends that the motion Judge erred in: (1) setting child support at $60 per week; (2) failing to apply the support order retroactively; (3) failing to order plaintiff to pay one-half of certain unreimbursed medical and dental expenses incurred by defendant on the children's behalf; and (4) failing to recognize that a prior child support order was a pendente lite order.

We find that the motion Judge failed to articulate his findings and also failed to explain why he deviated from the Child Support Guidelines. Ordinarily, a remand to the Family Part would be warranted; however, the motion Judge is now disqualified from presiding in this litigation.

For the reasons more fully explained in this opinion, we must reverse and remand for further proceedings consistent with this opinion.


Defendant and his former wife, plaintiff Joan M. Winterberg, formerly Joan M. Lupo, were married on September 6, 1980. They entered into a separation agreement on May 5, 1992. The parties are the parents of two sons: Brian, born March 29, 1981; and Christopher, born October 19, 1984. Upon separating, the parties agreed to "joint custody" but agreed that plaintiff would have "primary physical custody." Defendant, a career officer in the National Guard, agreed to pay $600 per month in child support, $300 per month per child. Defendant was granted undefined, but liberal, visitation with the children. A judgment of divorce was entered on June 17, 1992.

Shortly thereafter, the two children visited defendant for the entire summer. The parties intended that both sons would return to and reside with their mother during the 1992-1993 school year. Despite those plans, by the end of the summer of 1992, both sons expressed a desire to remain with their father. Although plaintiff contends that the arrangement was only for the 1992-1993 school year, defendant contends that the children expressed a desire to remain with him permanently and that plaintiff ultimately acquiesced to this.


On June 18, 1993, defendant filed a motion requesting a change of physical and residential custody, child support, and reimbursement of medical and dental expenses that he had incurred during the preceding year. That motion was repeatedly postponed but was ultimately argued on February 18 and March 18, 1994, before a Judge who has since left the bench.

While that motion was pending, defendant's National Guard base in New Jersey was "downsized," and defendant was advised that his military career could continue only if he accepted a transfer to Chambersburg, Pennsylvania before September 1, 1993.

Defendant contends that he discussed this prospective move with his counsel and with plaintiff's former counsel, and an agreement was reached whereby defendant and the children would relocate and plaintiff would be afforded visitation with the two children. Based on that alleged agreement, defendant did, in fact, relocate. No judicial approval was sought. See generally N.J.S.A. 9:2-2; Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988); Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984); Levine v. Bacon, 297 N.J. Super. 224, 687 A.2d 1057 (App. Div. 1997); Cerminara v. Cerminara, 286 N.J. Super. 448, 669 A.2d 837 (App. Div.), certif. denied, 144 N.J. 376 (1996).

Plaintiff's certifications, filed in response to defendant's initial motion, dispute defendant's contention that a final agreement was reached; however, a plenary hearing to resolve that dispute was never scheduled. The first motion Judge's order fails to resolve that dispute. Implicit in the order is the Judge's apparent Conclusion that defendant's contentions were true. We infer this because temporary custody was awarded to defendant pending completion of evaluations. The passage of time, plaintiff's failure to request a Holder hearing, and her apparent acquiescence to the visitation schedule established by agreement and given judicial sanction by paragraph 4 of the March 21, 1994, order lends further support to ...

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