On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FM-21-312-00.
The opinion of the court was delivered by: Seltzer, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2006
Before Judges Lintner, S.L. Reisner and Seltzer.
Plaintiff, Lydia Forrestall, appeals from a December 14, 2005, order denying her motion for reconsideration of an October 28, 2005, order that modified the child support obligation of defendant, Michael S. Forrestall. We affirm.
The parties were married on November 14, 1992, and divorced on March 27, 2001. The Dual Judgment of Divorce incorporated a Property Settlement Agreement requiring defendant to pay $555 monthly to plaintiff for support of the two children born of the marriage. The agreement also required that, on April 15 of each year, the parties would "exchange evidence of their income including their updated W-2 as well as evidence of their bonus income." Child support would then "be modified pursuant to the child support guidelines based upon the then current income of the parties."
On September 23, 2005, plaintiff moved for a modification of the child support and for fees. On October 28, 2005, support was modified for the period beginning May 1, 2004 through April 30, 2005, and from May 1, 2005, forward. The court computed defendant's support obligation for the period starting May 1, 2004, after considering his income for 2003 as revealed by the exchange of income information on April 15, 2004; and for the period beginning May 1, 2005, after considering his income for 2004 as revealed by the exchange of income information on April 15, 2005.
The judge excluded from the computation of defendant's income, used to determine his support obligation, both the contribution of defendant's employer to defendant's voluntary 401(k) plan and any income generated by that plan. The judge also excluded a bonus that was declared in 2004, but not paid to defendant until some time in 2005, from the computation of defendant's 2005 support obligation. Plaintiff sought reconsideration, which was denied on December 14, 2005.
Plaintiff appeals from the order denying reconsideration, asserting that the trial court failed to consider, as untimely filed, submissions made by her on the original motion; failed to include the bonus received by defendant in 2005 in computing his 2005 income for support purposes; and failed to include either the increase in the corpus of defendant's retirement plan or his employer's contribution to that plan in computing defendant's income for support purposes.*fn1
The first and second arguments raised by plaintiff have insufficient merit to justify discussion in a written opinion.
R. 2:11-3(e)(1)(A) and (E). As to the first argument, we add only that the motion judge ultimately agreed that any relevant arguments raised in the untimely filed papers would be considered on the motion for reconsideration. Any prejudice that might have been occasioned was thereby cured.
As to the second argument, we agree with the judge's determination that the Property Settlement Agreement provided for the recalculation of child support each year based upon the income from the preceding year as disclosed on April 15. There is no authority for, or logic in, utilizing a bonus declared, but not received, in 2004 to compute child support for the period commencing May 1, 2005. Rather, the income received in 2005, including the bonus, would be used to compute support for the period commencing May 1, 2006. The judge's treatment of this issue was correct.
We turn then to consider plaintiff's claim that employer contributions to defendant's 401(k) plan and the income generated by that plan, although not distributed to defendant, should have been included in defendant's income for child support purposes. We take the question of whether such income may be included for computing support to be a purely legal one. Therefore, we decide the question de novo without according any deference to the motion judge's decision. Balsamides v. Protameen ...