On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-6016-03-W.*fn1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Axelrad, Sapp-Peterson and Messano.
Defendant, Richard E. Incremona, appeals from that portion of the May 4, 2007 order directing an accounting and payment to plaintiff of twenty percent of defendant's unearned income.*fn2 We reverse.
The court entered a dual judgment of divorce (JOD) on October 13, 2004. The JOD incorporated a property settlement agreement (PSA) reached between the parties that, among other issues, addressed child support for the two children born of the marriage and alimony. Under the agreement, both parties were awarded joint legal custody of the children, with plaintiff named as the parent of primary residential custody. Of import to our discussion is Paragraph 5 of the agreement captioned "CHILD SUPPORT." The pertinent portions of that section provide:
5.A. Commencing November 1, 2004, the Husband shall pay to the Wife the sum of Two Hundred Sixty-three Dollars ($263.00) per week as and for child support for the Children.
D. In addition to the alimony set forth above the Husband shall pay to the Wife an amount equal to twenty (20%) pe[rc]ent of all income actually distributed to him (i.e., income actually paid to him as opposed to reported on his tax return) from his family trusts and partnerships, not to exceed $25,000.00 per annum. . . . Payment of sums from the Husband to the Wife pursuant to the provisions of this paragraph shall be deemed additional child support and shall not be deducted by the Husband nor included as income by the Wife on Federal or State income tax returns. In the event that Husband loses the ability to deduct a charitable loss carry[-]forward (the parties expect that this deduction will be available to the Husband through 2008, said circumstance shall constitute, prima facie, a change of circumstance entitling the Husband to apply to reduce the alimony and child support provided for in this agreement, but such reduction if granted will not exceed the amount paid as additional child support pursuant to this subparagraph. The obligation to pay such additional child support shall continue for so long as one child remains unemancipated, when the percentage shall reduce to 15% and terminate upon emancipation of both Children.
In November 2005, the Division of Youth and Family Services (DYFS) effectuated an emergency removal of the two children from plaintiff's physical custody and placed them with defendant. It subsequently filed a verified complaint alleging abuse and neglect of the children by plaintiff. A month later, defendant filed a motion to terminate his child support obligation, to compel "plaintiff to reimburse defendant for all child support and additional child support [plaintiff] received since November 15, 2005[,]" and to compel "plaintiff to pay child support to defendant." In his certification in support of the motion, defendant stated, "Pursuant to the terms of the Property Settlement & Support Agreement . . . . I pay child support to her in the amount of $263.00 per week, plus 20% of my monthly unearned income as additional child support."
Prior to the return date of the motion, on January 19, 2006, plaintiff signed legal and physical custody of the children over to defendant. As a consequence, Judge Peer entered an order dismissing the verified complaint.
On February 3, 2006, the court entered an order directing that "[d]efendant's obligation to pay child support and additional child support to the plaintiff is hereby terminated as of [December] 28, 2005." Additionally, the court ordered plaintiff to "reimburse defendant for all child support and additional child support paid since [December] 28, 2005[,]" and directed the parties to exchange Case Information Statements (CIS) in order to determine the extent of plaintiff's child support obligation to defendant. No motion for reconsideration or notice of appeal was thereafter filed.
In August 2006, defendant filed a motion to compel plaintiff to pay child support, to set child support arrears, and to make all payments payable through the New Jersey Family Support Center. According to the certification submitted in support of the motion, over the next several months following the court's February 3 order, the parties' attorneys exchanged correspondence that addressed the court's order, with defendant claiming that he submitted his CIS within thirty days after the order was entered, and plaintiff failing to do so. Further, defendant stated that when plaintiff finally submitted the CIS, she failed to disclose what defendant claimed was a "substantial profit she realized from the sale of the [former marital home,]" and that over the several months following the entry of the court's order, "not once has plaintiff made an effort to negotiate or address her obligation to financially support our children upon receiving [documents submitted by defendant]." On September 13, 2006, the court entered an order transferring the matter to Burlington County.
It was not until early November that plaintiff opposed the motion and cross-moved for attorney's fees. In her certification, plaintiff acknowledged that she received "$600.00 per week in alimony[.]" She disputed defendant's contention that he had acted in good faith to resolve the issues, pointing out that defendant's CIS contained errors which her attorney identified, including the omission of his "nearly $50,000 in unearned income received by him[,]" his failure to discuss the children with her, and his interference with her relationship with the children. Plaintiff concluded her certification by stating:
Under all of the circumstances in this matter I respectfully suggest to the Court that there is no obligation, and there should be no obligation upon me to provide support directly to the defendant for our children. I do spend money for them when they are with me. More importantly, I am providing for their future by maintaining a home, and by obtaining an education and a skill that will translate into higher earning power for me so that I can provide for my children in the future. Accordingly, I respectfully ...