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Benisch v. Benisch

February 06, 2002

JEAN BENISCH, PLAINTIFF-RESPONDENT
v.
STEPHEN B. BENISCH, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-01494-98.

Before Judges Ciancia, Lesemann and Parrillo.

The opinion of the court was delivered by: Lesemann, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 10, 2001

In this bitterly contested matrimonial matter which involved twenty-four days of trial, the defendant husband, appeals from only one aspect of a lengthy, complex judgment: the award of $60 per week child support respecting the parties' sixteen year old son. The parties had stipulated that the court should apply the Child Support Guidelines set forth in Appendix IX of the Court Rules, and defendant does not object to the court's use of those guidelines. Rather, he argues that the court misapplied them and, as properly applied, they should lead to an award of just $13 per week rather than $60 per week. We are not satisfied that defendant's number is correct, but we do believe the matter must be remanded to enable the court to explain its reasoning in applying the guidelines and, if necessary, modifying the award.

The parties were married in 1973. The plaintiff wife's complaint for divorce was filed on April 14, 1998, and the twenty- four day trial referred to began on October 20, 1999, and concluded on January 27, 2000. In a sixty-seven page written opinion, the court made extensive rulings respecting equitable distribution, custody, alimony and child support. The judgment embodying the findings and conclusions in the opinion encompassed nineteen pages and was entered on June 20, 2000.

The parties have two children, Bridget who was twenty at the time of the divorce, and Chip who was sixteen. Bridget was attending college and the court's ruling contained no provision respecting child support for Bridget.

Chip's custody was the subject of lengthy dispute at trial. Ultimately, the court accepted the recommendation of a court appointed psychologist and directed that Chip should live with his mother and his father for an equal number of days each year. During school months, he was to spend one week with one parent and then, on Friday evening, he would move to the other parent and spend the next week with that person. On vacations and during the summer, he would, again, spend the same number of days and nights with each parent.

Defendant is an attorney and his annual income was the subject of dispute at trial. Ultimately, the court concluded that his pre- tax net income was $100,000 per year, and the comparable figure for plaintiff was $60,000 per year. The court awarded plaintiff permanent alimony of $300 per week.

As noted, the parties had stipulated that child support should be computed according to the Child Support Guidelines. In its opinion, the court referred to those Guidelines and set out a summary of its calculations. It also attached to the opinion completed worksheets on which it set out the figures it employed in its calculations, showing how it arrived at its net calculation of $60 per week.

The court employed formulations based on what the Guidelines term "Shared Parenting Arrangements," (see Paragraph 14 to Appendix IX-A), which are designed for application when a child spends different amounts of time with each of his or her parents. They are premised on the fact that, "each parent incurs expenses for the child while the child is with that parent." See Paragraph 14a. In applying the shared parenting formula, however, a critical first step is a designation of each parent as either the Parent of Primary Residence (PPR) or the Parent of Alternate Residence (PAR). As the Guidelines note, "Either the PPR or the PAR may be the obligor of the support order depending on income and the time spent with the child. The designation of PPR and PAR is not related to the gender of either parent or the legal designation of custodial parent." See Paragraph 14b. The guidelines then set out a definition for PPR and PAR:

(1) Parent of Primary Residence (PPR) — The parent with whom the child spends most of his or her overnight time. The primary residence is the home where the child resides for more than 50% of the overnights annually. If the time spent with each parent is equal (50% of overnights each), the PPR is the parent with whom the child resides while attending school. . . .

(2) Parent of Alternate Residence (PAR) — This is the parent with whom the child resides when not living in the primary residence.

Those definitions of PPR and PAR, quite clearly, cannot be applied to this case. The most significant aspect of the court's custody determination was a precise equality of custodial time between plaintiff and defendant. Since the designations of PPR and PAR are premised on one parent having greater custodial time than the other, the normal definition simply does not work here. Even with the alternate, fall back, position set out in the rule — when total time is equal, the PPR is the parent with whom the child ...


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