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Machulsky v. Machulsky

November 8, 2007

MARY R. MACHULSKY, PLAINTIFF-APPELLANT,
v.
JOSEPH M. MACHULSKY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-269-97.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2007

Before Judges Skillman and Yannotti.

Plaintiff Mary R. Machulsky appeals from certain provisions of orders entered in this matrimonial action on June 30, 2006, and July 28, 2006. For the reasons that follow, we affirm in part and reverse in part.

I.

The parties were married on May 23, 1987, and two children were born of the marriage, A.M. and C.M. The marriage was dissolved by a judgment of divorce entered on April 15, 1998, which incorporated the parties' property settlement agreement (PSA). The parties agreed to joint legal custody of the children, with plaintiff as the parent of primary residence. In addition, plaintiff agreed to accept $50 per week in child support, provided she could petition the court for modification if her income fell below $30,000 per year.

On April 4, 2003, Judge Lee Laskin entered an order which provided that defendant shall pay plaintiff $222 per week in child support.*fn1 The judge applied the child support guidelines in making that determination. Judge Laskin imputed annual income of $30,000 to plaintiff and $60,000 to defendant. The order was entered "without prejudice" to an application by either party for a change of child support based on the parties' actual respective incomes.

In September 2003, after a dispute between plaintiff and A.M., the police brought A.M. to defendant's home and he moved for custody of the child. On October 17, 2003, Judge Louis R. Meloni entered an order transferring custody of A.M. to defendant. Judge Meloni entered another order on October 29, 2003, reducing defendant's child support based on the change in custody. Plaintiff appealed from both orders.

In addition, on November 7, 2003, Judge Stephen M. Holden entered an order awarding plaintiff $2,854.12 on a claim against defendant for wrongful retention of a security deposit related to the former marital home. Defendant appealed from that order.

We thereafter entered an opinion addressing both appeals. Machulsky v. Machulsky, Nos. A-1778-03T2 and A-1929-03T2 (App. Div. January 31, 2005). We affirmed the orders granting custody of A.M. and reducing defendant's child support obligation but remanded for a plenary hearing on the custody and support issues. In addition, we reversed the judgment entered for plaintiff on the security deposit claim because the judge had erroneously calculated the amount due to plaintiff. We remanded the matter for entry of a judgment for plaintiff in the amount for $990.84.

After our decision in these appeals, defendant sought the return of $2,065.31, which was the difference between the amount he had paid when plaintiff executed her judgment and the $990.84 that we found she was entitled to receive on the claim. Defendant also sought an award of attorney's fees and costs. On October 17, 2005, Judge Holden entered an order requiring plaintiff to pay defendant $2,065.31.

Plaintiff filed a motion for reconsideration and defendant filed a cross-motion seeking entry of a judgment for $2,065.31, plus an award of attorney's fees related to the reconsideration motion. Judge Holden filed an order on January 19, 2006, which denied plaintiff's motion, entered judgment for defendant, and awarded defendant $250 in counsel fees. Plaintiff appealed and we affirmed the order. Machulsky v. Machulsky, No. A-3336-05T1 (App. Div. May 22, 2007).

In accordance with our decision in A-1929-03T2, Judge Meloni conducted hearings on the custody and support issues. The judge filed a letter opinion dated October 6, 2005, in which he determined that defendant would have sole custody of A.M., and the parties would share joint custody of C.M. Judge Meloni denied defendant's motion to allow C.M. to reside with him when plaintiff is out of town. The judge applied the child support guidelines and required defendant to pay $75 per week in child support. That was the net amount resulting from the judge's finding that defendant was obligated to pay plaintiff $190 per week for the support of C.M., and plaintiff was obligated to pay defendant $115 for the support of A.M. With respect to child support for C.M., the court determined that plaintiff's share of the support obligation was 35.56% and defendant's share was 64.44%.

In this matter, plaintiff appeals from an order entered by another judge on June 30, 2006, which denied plaintiff's motion for reconsideration of an order entered on April 21, 2006, requiring the parties to share on an equal basis the costs of C.M.'s attendance at a summer program for talented youth at Johns Hopkins University; awarded defendant $350 in attorney's fees for plaintiff's reconsideration motion; and granted defendant's application to permit C.M. to stay with him when defendant is out of town.

Plaintiff also appeals from provisions of an order entered by the judge on July 28, 2006, which denied plaintiff's motion to divide the cost of C.M.'s braces in accordance with the parties' relative incomes; granted defendant's motion for reimbursement of overpayments of child support; and found that plaintiff violated defendant's rights as a litigant by failing to pay counsel fees previously awarded and refusing to allow the county sheriff to execute on a writ of execution issued by the court.

II.

We turn first to plaintiff's appeal from the provisions of the June 30, 2006 order, which denied plaintiff's motion for reconsideration of the court's earlier determination requiring the parties to share on an equal basis the cost of C.M.'s attendance at the Johns Hopkins program and awarded defendant attorney's fees for the time devoted by counsel to responding to that motion.

We briefly summarize the facts relevant to our consideration of plaintiff's arguments. In October 2005, C.M.'s school informed plaintiff that C.M. was eligible for the summer program. At the time, C.M. was in seventh grade. However, to be admitted to the ...


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