On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-638-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
Plaintiff Carolyn Mertz and defendant Larry R. Mertz were divorced in December 1994. Plaintiff appeals from a post-judgment order entered on her motion to modify her obligations to pay child support and transport the children for parenting time, to enforce a prior order requiring defendant to contribute to the children's medical costs, and to recover counsel fees for the motion.
The parties married on April 6, 1989. They have two sons. The first was born in September 1991, and the second was born in October 1992. Pursuant to the parties' agreement, which was incorporated in their final judgment of divorce, their sons reside primarily with defendant and the parents share legal custody. Recognizing that plaintiff's employment as a registered nurse required her to work irregular hours, they agreed to a flexible schedule for parenting time.
Defendant waived child support for five years and plaintiff waived a cause of action pursuant to Tevis v. Tevis, 79 N.J. 422 (1979). She also agreed to provide health insurance for the children, pay for one-half of their medical expenses not covered by insurance, contribute $50 per week for services of a nanny and purchase their clothing.
In July 2000 the child support provisions of the final judgment were modified. Plaintiff was required to pay child support in the amount of $150 per week. Child support was calculated pursuant to the Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2217-40 (2007). The calculation was based on the following: defendant's reported gross income of $335 per week, $17,240 per year, and plaintiff's gross income of $998 per week, $51,896 per year; twenty-six overnights per year for plaintiff; $35 per week for the children's health insurance premium, and $26 per week for work-related child care.
Plaintiff's share of the total child support amount was $252 per week, but defendant agreed to accept child support in the amount of $150 per week. The order requires plaintiff to secure the health insurance for the children, the cost of which was included in the guideline's amount so as to increase plaintiff's support obligation by $16 per week, or $69 per month.
That child support order also required the parties to divide medical expenses not covered by insurance, seventy-one percent to be paid by plaintiff and twenty-nine percent to be paid by defendant. That order consists of hand-written entries on a pre-printed form child support order. In the margin, just above the entry for the parties' respective share of actual medical expenses, there is a handwritten notation. That notation states, "$250 per yr. per child." It does not indicate whether the responsibility to pay "$250 per yr. per child" is allocated to plaintiff or defendant. The only box checked in that portion of the form is "obligor." Although plaintiff is the obligor, she contends that, consistent with the child support guidelines, defendant, as the custodial parent, had the obligation to pay the first $250 per year per child. See Pressler, supra, Appendix IX-A to R. 5:6A, "Considerations in the Use of Child Support Guidelines," ¶ 8 at 2223.
Subsequent to entry of that order, pursuant to N.J.S.A. 2A:17-56.9a and Rule 5:6-6, plaintiff's $150 per week child support obligation was adjusted in accordance with the cost of living and set at $167 per week.
Plaintiff filed her motion for modification of child support in March 2006. Defendant filed a cross-motion seeking an increase in child support.
The following facts are drawn from the certifications and documents submitted on the motion and cross-motion. In 2004 and 2005 the children spent more time with plaintiff than they had in the past. In 2004 they spent 119 nights in her home, and in 2005 they were with her 120 nights. Her gross earnings in 2005 were $71,026. Plaintiff asserted that defendant, who owns his own business and installs vinyl siding, earns more than he reported at the child support hearing in July 2000, which was $17,420 per year. She submitted wage statistics reported by the New Jersey Department of Labor and Workforce Development that reflected higher earnings for workers in her husband's field. She also contended that defendant's lifestyle and assets, as reflected on his case information statement and 2005 tax return, were indicative on earnings higher than his earning in 2000.
Defendant owns his own home and a $37,000 truck, which he uses in his business. There is no mortgage on his home, and he has no debt.*fn1 In 2005 his business income was $12,765 and his interest income was $2219. In ...