On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-367-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued October 30, 2007
Before Judges Gilroy and Baxter.
In this post-judgment matrimonial matter, defendant Michele Mauchet appeals from orders entered on August 29 and September 15, 2005, that established the amount of child support she was obliged to pay; granted her only a partial retroactive modification of child support arrearages; and denied her motion for increased parenting time. In a cross-appeal, plaintiff Harry Mauchet seeks reversal of orders entered on August 29 and September 13, 2005, which denied his motions for counsel fees. Because the issues in the two appeals are intertwined, we resolve the two appeals in this single opinion. We affirm on defendant's appeal, and reverse and remand on plaintiff's cross-appeal.
The parties were married on October 11, 1980. Two children were born of the marriage, J.M., born April 2, 1985, and A.M., born March 8, 1997. The parties separated in December 2000 and plaintiff filed a complaint for divorce on April 20, 2001. After an eight-day trial, the judge on July 29, 2003, issued a written decision and a confirming order, which in relevant part, awarded joint legal custody of A.M. to the parties, with plaintiff serving as the primary residential parent; imputed income to defendant in the amount of $100,000 per year; and directed defendant to pay $178 per week child support for A.M.
In October 2003, defendant filed a motion to alter or amend the judgment of divorce, and plaintiff filed a cross-motion to enforce litigant's rights. On October 31, 2003, the judge denied defendant's motion and granted plaintiff's. In relevant part, the order entered on October 31, 2003: (1) required defendant to pay plaintiff $4,606 in child support arrears, the amount that she owed as of October 31, 2003; (2) authorized a bench warrant to issue for defendant's arrest if she failed to pay that amount within ten days; (3) increased defendant's child support obligation for A.M. to $325 per week effective September 1, 2003; and (4) required defendant to pay plaintiff's counsel fees for the motion.
At the time the October 31, 2003 order was filed, the judge was unaware that the $325 per week for child support had been erroneously calculated. In her July 29, 2003 written opinion, the judge had directed the parties to provide the court with recent pay stubs and a proposed recalculation of the child support payments. Only plaintiff provided the child support worksheet. Although the worksheet submitted by plaintiff specified gross incomes for the parties and daycare amounts that were accurate, neither defendant nor the judge realized that plaintiff had directed the computer software contained in Appendix IX-F in the court rules to calculate child support for two children, rather than one.*fn1
On December 11, 2003, defendant appealed that October 31, 2003 order. In April 2004, attorneys for both parties participated in a civil appeals settlement conference (CASP). As a result of the CASP conference, the parties entered into a consent order, which was filed with the trial court on August 25, 2004. The consent order was prepared by defendant's counsel, and after it was filed, defendant voluntarily dismissed her appeal.
A portion of the August 25, 2004 consent order provided that defendant's child support obligations were reduced to $100 per week for the period of August 11, 2003 to August 17, 2004, and then to $150 per week from August 17, 2004 and thereafter. The consent order, however, contained a significant proviso: if defendant did not pay off her arrears within ninety days, by November 25, 2004, her child support obligation would revert back to the amount originally ordered by the amended judgment of divorce, which was $325 per week. Because defendant did not pay off her arrears by November 25, 2004, the date specified in the consent order, her support obligation reverted back to $325 per week effective November 25, 2004.
Defendant filed an application for modification of child support on January 14, 2005, claiming that she was unable to make the payments of $325 per week because she could not find employment. Plaintiff cross-moved to enforce the provisions in the August 25, 2004 consent order and obtain counsel fees and costs. On August 29, 2005, the court issued the order that is the subject of this appeal.
In that order, the trial court discovered its calculation error in the October 31, 2003 order--that defendant only owed $235 per week instead of $325 because the parties only had one minor child to support. Thus, the court found that defendant had been ordered to pay $90 more than she should have been. The court concluded, however, that pursuant to N.J.S.A. 2A:17-56.23a and Linek v. Korbeil, 333 N.J. Super. 464, 473-474 (App. Div.), certif. denied, 165 N.J. 676 (2000), it could not retroactively modify the child support. The court remedied the problem by ordering that for each week that a $90 overpayment had been made, a credit would be applied to defendant's arrears, and then, after the arrears were satisfied, to defendant's share of Jackie's college education.
The August 29, 2005 order also reduced defendant's child support payments because defendant was earning less than the $100,000 that had been imputed to her, and she had made a good faith effort to obtain employment. The court concluded that even though defendant may not have earned $100,000 per year from October 31, 2003 to January 14, 2005, the court could not retroactively modify the child support payment in light of the provisions of N.J.S.A. 2A:17-56.23a.*fn2 The court further concluded that it could only reduce the payments after January 14, 2005, the date when the application was filed. Thus, the court reduced defendant's weekly payments from $325 to (1) $45 per week for the period of January 14, 2005, the date the application was filed, to February 20, 2005 because of ...