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Heldmann v. Pescatore

October 25, 2007

ROSEMARIE HELDMANN, F/K/A ROSEMARIE PESCATORE, PLAINTIFF-APPELLANT,
v.
KENNETH PESCATORE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. FM-14-1523-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 3, 2007

Before Judges Wefing and Lyons.

Plaintiff Rosemarie Heldmann appeals from three post-judgment matrimonial orders which modify defendant Kenneth Pescatore's child support obligation by reducing it to $452 per week; deny plaintiff's request for contribution from defendant for child care expenses; and deny plaintiff's counsel fee application. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiff and defendant were married on June 21, 1987, and had four children: E.P., now eighteen years old, P.P., now sixteen years old, O.P., now ten years old, and S.P., now eight years old. On June 29, 2004, a dual final judgment of divorce (Divorce Judgment) was entered that incorporated a settlement agreement (Agreement) drafted by the parties. The trial court that entered the Divorce Judgment heard no testimony and made no judgment as to the merits of the Agreement because the parties settled their dispute prior to the conclusion of their divorce trial. Trial had commenced before a judge other than the post-judgment motion judge, and settlement was reached in the middle of the trial, after testimony from the joint forensic accountant as to defendant's income. The trial court noted in entering the Divorce Judgment, however, that the parties "freely and voluntarily" entered into the Agreement making it "binding and enforceable."

The parties agreed to share joint legal custody of the four minor children, with plaintiff designated as the "parent of primary residence," and defendant as the "parent of alternate residence." The Agreement between the parties regarding child support payments provides:

The Husband shall pay child support in the sum of $40,000.00 per year.*fn1 Husband shall make the payments in the sum of $3,333.33 on the first of every month through the Morris County Probation Department. The first payment shall be made July 1, 2004. The foregoing child support shall not be subject to modification, either upward or downward, for a period of two years at which time it is subject to review by either party regardless of any change in circumstances.*fn2 (emphasis added).

On May 3, 2006, slightly less than two years after the Agreement was incorporated into the Divorce Judgment, defendant filed a motion seeking, among other things, modification of child support payments. He based his request on the portion of the Agreement that stated "child support shall not be subject to modification, either upward or downward, for a period of two years at which time it is subject to review by either party regardless of any change in circumstances." In defendant's certification, he alleged that the original child support payment was beyond his means. Furthermore, defendant claimed that his business income had decreased while plaintiff's income had increased since entering the Agreement two years ago.

On May 24, 2006, plaintiff filed a cross-motion asking the court to: (1) deny defendant's motion; (2) grant decision-making authority to the parent coordinator; (3) modify the parenting-time schedule; (4) require defendant to contribute to the full-time child caretaker expense; and (5) compel defendant to pay counsel fees and costs. Plaintiff asserted that defendant's income amount on his Case Information Statement (CIS), which he submitted to the motion judge, was "seriously underestimated." Plaintiff suggested that the defendant was "running a significant amount of [personal living] expenses through his business . . . ." Both parties disagreed with the other's assertion of facts concerning income, expenses, and standards of living. This is consistent with the parties' positions during the trial at which allegations and disputes regarding significant unreported income were exchanged.

On June 12, 2006, without having oral argument or a plenary hearing, the motion judge entered an order as to both parties' motions in which defendant's child support payment was reduced to $498 per week, or approximately $25,896 a year, and all other relief was denied. The motion judge did not render a written opinion, but provided a "statement of reasons" on the order itself. The court found "that the [parties'] Judgment of Divorce provides for a review of the child support obligation. The Court has calculated the obligation pursuant to the parties' Case Information Statements and in accordance with the Child Support Guidelines."

The motion court attached to the order a "sole parenting worksheet" on which the revised child support was calculated. The court apparently used the incomes supplied by the parties on their respective CIS forms. The court calculated defendant's obligation to be $498 per month, based on defendant contributing approximately 70% of the parties' total income. In the order, the motion court also denied plaintiff's request to compel defendant to contribute to the "costs of a nanny" because the Divorce Judgment did not provide for it.

On June 28, 2006, plaintiff filed a motion for reconsideration of the June 12 order, asking the court to: (1) maintain the original child support amount, with the exception of additionally compelling defendant to make a 60% contribution toward the child care costs; (2) compel defendant to pay plaintiff's counsel fees and costs; (3) schedule a plenary hearing to establish current child support and permit discovery should the court determine modification is appropriate; and (4) permit the parenting coordinator to revise the parenting time schedule. In support of her motion, plaintiff suggested that the motion judge erred in fixing defendant's income amount because the 2005 income amount stated in defendant's CIS was exactly the same income amount he reported in 2004. Therefore, modification was not warranted. Plaintiff argued that since the trial court did not accept defendant's 2004 income representation, neither should the motion judge.*fn3

On July 5, 2006, defendant filed a cross-motion asking the court to deny plaintiff's application for reconsideration, to award defendant counsel fees, and to eliminate, pursuant to Rule 4:50-1, a clerical error in computing the child support guidelines. The purported clerical error was the omission of a parenting-time credit for sixty-four overnights defendant had with his two younger children. On July 17, 2006, the court entered an amended order correcting defendant's child support ...


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