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McGlashan v. McGlashan

July 10, 2007

DONNA LEE MCGLASHAN, PLAINTIFF-RESPONDENT,
v.
SCOTT MCGLASHAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-02-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 5, 2007

Before Judges Axelrad and Gilroy.

Defendant Scott McGlashan appeals from the December 21, 2005, order of the Family Part that, among other matters, increased his child support obligation from $120 per week to $138 per week. Defendant also appeals from the order of June 16, 2006, denying his motion for reconsideration. We reverse and remand to the trial court for further proceedings consistent with this opinion.

The parties were divorced on June 8, 1999. One child was born to the parties: Scott Gene McGlashan, Jr., born May 13, 1992. The judgment of divorce incorporated a Marital Settlement Agreement (MSA) dated June 8, 1999, which provided for joint legal custody of the parties' son; named plaintiff as the parent of primary residence; and fixed defendant's initial child support obligation at $44 per week. Paragraph 5 of the MSA required the parties to exchange their financial information within thirty days of execution of the MSA for the prior two years in order to recalculate child support, retroactive to the date of the MSA. Paragraph 5 also provided that child support would be recalculated biannually as of the date of the MSA, by averaging the parties' incomes for the two years preceding each recalculation.

On January 19, 2001, an order was entered on cross-motions pertaining to the initial recalculation of child support that directed the parties to submit a consent order within five days, fixing defendant's child support obligation effective June 8, 1999, and calculating the arrears from that date. A revised order was entered on March 6, 2001, that: 1) fixed defendant's child support obligation at $118 per week, retroactive to June 8, 1999; and 2) fixed the amount of arrears at $3,285.00 for the period from June 8, 1999, to January 16, 2001. The amount of child support and arrearages were determined pursuant to Paragraph 5 of the MSA and in accordance with the average of the Child Support Guidelines (the Guidelines) Shared Parenting Worksheet.*fn1

On September 26, 2003, a consent order was entered, recalculating defendant's child support obligation for the period of June 8, 2001, through June 8, 2003. The order fixed the obligation at $120 per week, retroactive to June 8, 2001, and determined defendant's arrearages at $66 as of September 19, 2003, "without regard to any such increase or decrease in said arrears as may result from the re-computation of [d]efendant's child support obligation as of June 8, 2003, and as provided for in the parties' June 8, 1999 [MSA]." Lastly, the order also directed the parties, upon exchange of tax return information, to recalculate the bi-annual child support obligation, effective June 8, 2003, using factors determined by the court concerning the child's health insurance and daycare costs. Unfortunately, the recalculation was not completed because the parties were unable to agree on all factors required by the Guidelines. On October 28, 2004, the parties entered into a consent order, agreeing that they would continue to work toward resolving the support issue, and that defendant's arrearages did not exceed $571.96. By April 2005, the recalculation for the third biannual recalculation remained unresolved, with the parties not agreeing on the amount of defendant's income.

On April 5, 2005, defendant filed a motion, seeking among other matters, a determination whether certain business deductions for telephone and motor vehicle expenses and mis-reported income of $2,173 should be included as part of his gross 2001 income for the purpose of calculating child support. Plaintiff filed a cross-motion, seeking sole legal custody of their son and requesting the court to fix defendant's child support obligation and arrearages. On May 6, 2005, two orders were entered resolving the parenting issues, but not the issues concerning child support or defendant's business expenses and misreported income. Those issues were denied without prejudice to either party. On August 8, 2005, a consent order was entered, making additional changes to the parenting schedule and agreeing on certain factors in calculating child support from June 8, 2003, through the date of the order as to health insurance costs, childcare costs, and plaintiff's income. The order also provided that "[p]laintiff's income shall be $778.50/week for the years 2001 and 2002 which is the amount to be used in the 2003 computation." Lastly, the order set a discovery schedule in order to determine defendant's income.

On October 12, 2005, defendant filed an order to show cause (OTSC), seeking immediate physical custody of his son. Plaintiff cross-moved to suspend defendant's parenting time because of child support arrearages. In reply to plaintiff's cross-motion, defendant filed a certification that not only included detailed calculations of child support through the anticipated return date of the motion, but also addressed the issues concerning his business expense deductions and the misreported income for the year 2001. According to defendant, the only issues remaining for determination concerned his business expenses and misreported income. Defendant asserted that his motor vehicle expenses, his business telephone expense, and the $2,173 misreported income should not be included in his gross income for purposes of child support. Specifically, defendant certified that: his 1997 Ford pickup truck was used for business; he maintained a telephone line for his business; in 2001 a client had accidentally issued a 1099 statement in the amount of $2,173 to defendant personally, rather than to his landscaping business; and the $2,173 had already been included in his gross business receipts.

On November 7, 2005, a hearing was held on the OTSC and plaintiff's cross-motion. Because defendant withdrew his request for custody, the only issues addressed at the hearing were the amount of defendant's child support obligation and arrearages. Plaintiff testified that in 2001 she earned approximately $38,076 as a building manager at Poulte Homes. Similarly in 2002, she earned $42,157.70. She later quit that position in 2003 because of her long commute and of the job's demanding schedule. In 2003, plaintiff earned $12,532 from unemployment benefits and $18,456 from her job with Poulte Homes for a total income of $30,988. In 2004, plaintiff received $6,266 from unemployment benefits and earned $4,862 as a waitress for a total income of $11,128. Plaintiff currently works as a waitress and as a bus driver. She earns about $17 per hour, or about $500 gross per week as a bus driver. She also earns between $60 to $90 per evening (three times a week) as a waitress, or $195 to $270 per week. Thus, according to plaintiff, her stated income from both jobs is approximately $657 per week.

Defendant testified as follows: He has been a self-employed landscaper for sixteen years and has thirty-six customers to whom he provides regular landscape maintenance and snow plowing services, each paying by check. He denied having income except for the amounts reported in his tax returns, the same tax returns he uses to calculate his child support obligation for his second son from a subsequent marriage. Concerning his driving a new Cadillac Escalade SUV, defendant stated that he had paid $10,000 cash down on the motor vehicle, but other than that amount, his girlfriend had bought him the car as a gift. The Escalade is under his girlfriend's name, and his girlfriend continues to make the monthly payments. He sold his 2002 Ford pickup truck, receiving $16,000, and used a portion of those proceeds as the $10,000 down payment. Defendant testified that in 2001, he earned $27,276 and in 2002, he earned $26,818.

The trial judge found both plaintiff and defendant's testimony regarding their income not credible. Although the judge determined plaintiff's income as a bus driver accurate, he did not believe that plaintiff reported all tip income. As for defendant, the judge neither believed that the Escalade was a gift from his girlfriend, nor that he was accurately reporting all income from his landscaping business. The judge reserved his decision and advised the parties that he would issue a written decision at a later date.

On December 21, 2005, without issuing a written or oral decision, or attaching a statement of reasons, the judge entered an order fixing defendant's child support obligation at $138 per week and arrearages at $1,390 as of the date of the order. The order stated that the child support obligation was based on the Guidelines and the judge's "findings and/or assumptions" that plaintiff's annual income was $19,590 based on the New Jersey Department of Labor Wage survey, and defendant's annual income was $43,680 based upon the same survey. The order had affixed a copy of the Guidelines sole parenting worksheet*fn2 but did not have the referenced survey attached. The $1,390 arrearage amount was allocated in the order: $750 of arrears as of November 7, ...


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