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Brush v. Brush

January 22, 2008

TINA BRUSH, PLAINTIFF-RESPONDENT,
v.
RICHARD BRUSH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-11-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008*fn1

Before Judges Gilroy and Baxter.

Defendant Richard Brush appeals from post-judgment matrimonial orders that were entered on October 3 and December 1, 2006.*fn2 We reverse.

I.

The parties were married on October 30, 1988. Three daughters were born of the marriage in 1990, 1992 and 1999. The parties were divorced on January 29, 2002. At the time of the divorce, defendant-husband was earning $115,000 per year, and plaintiff-wife was earning $42,000 per year. Based upon the parties' combined income and defendant's seventy-eight overnight visits with the children per year, his child support obligation was set at $493 per week.

Sixteen months after the divorce was granted, defendant lost his job and was unemployed for a period of ten months. When defendant regained employment, he was no longer required to travel and consequently sought increased parenting time and a modification of his child support obligation. Ultimately, on June 24, 2004, the parties entered into a consent order that increased defendant's parenting time from seventy-eight overnight visits per year to 148. The consent order did not modify defendant's child support obligation. Consequently, on August 19, 2004, defendant filed a motion to reduce his child support obligation based upon his increased parenting time. On September 29, 2004, the court denied that motion.

In November 2004, defendant was again laid off as a result of down-sizing by his employer. After an extensive job search, he found employment that paid him $30,000 less per year than he was earning at the time of the parties' divorce. In February 2005, defendant filed a motion for a reduction in his child support obligation based upon the significant reduction in his annual income and his increased parenting time. On May 2, 2005, the judge denied defendant's motion, and explained that it is "too early to determine whether there has been a change in circumstances." At the same time, the judge granted plaintiff's cross-motion for counsel fees and ordered defendant to pay plaintiff's attorney $900.

Defendant appealed from the May 2, 2005 denial of his motion for reduction in child support and also appealed the order directing him to pay plaintiff's counsel fees. We reversed and remanded for a hearing at which both sides were to present updated financial information. Brush v. Brush, No. A-5022-04 (App. Div. June 30, 2006) (slip op. at 4). We did not specifically address defendant's arguments respecting the award of counsel fees to plaintiff.

Following the remand, the parties submitted updated financial information and on October 3, 2006, the court entered an order establishing defendant's child support obligation at $309 per week, as compared to the $493 per week that defendant was ordered to pay prior to filing the appeal. The Child Support Guidelines worksheet that was attached to the October 3, 2006 order gave defendant credit for zero overnights per year with the children, even though the children were spending 148 overnights with him. That same Child Support Guidelines worksheet also included an "other dependent deduction" credit for plaintiff in the amount of $130 per week, which was based upon plaintiff having given birth to a child when she remarried following the parties' divorce. The guidelines worksheet also included a $46 per week childcare component for plaintiff.

Because the October 3, 2006 order reduced defendant's child support obligation, the judge recognized that defendant was entitled to a retroactive modification of his child support back to the date of February 1, 2005, which is when he filed his original motion for a reduction of child support. Accordingly, the judge's October 3, 2006 order specified that defendant should pay a reduced weekly child support payment to plaintiff in the amount of $294 per week until defendant had been compensated in full for the overpayment, at which time defendant should resume his child support obligation in the adjusted amount of $309 per week. At the rate of $15 per week, it would take 16.47 years before defendant would be able to recoup the entire overpayment of $12,849.

Defendant filed a motion for reconsideration of the October 3, 2006 order, in which he argued that the judge erred when he: disregarded defendant's 148 overnights with his children; included a childcare component in the Child Support Guidelines worksheet because defendant had no obligation to contribute to childcare for a child that was not his; and allowed defendant to recoup his overpayment of child support at the rate of only $15 per week.

On December 1, 2006, the judge denied defendant's motion for reconsideration. Nonetheless, on December 19, 2006, the judge sua sponte issued an amended order that reduced defendant's child support obligation to $273 per week. The Child Support Guidelines worksheet that the judge attached to that order credited defendant with seventy-eight overnight visits with the children. The worksheet also continued to include the $130 per week "other dependent deduction" for plaintiff's new child and the $46 per week childcare component for that child. As a result of the December 19, 2006 reduction of defendant's child support obligation, the ...


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