On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-1115-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Plaintiff Robert Coles appeals from a May 10, 2007 order that increased his child support obligation retroactively back to August 2005. The retroactive modification created an arrearage amount of $7,938, which the judge ordered be paid at the rate of $30 per week. We affirm.
In February 2007, defendant filed a motion for a retroactive increase in the amount of child support she was receiving. In particular, she maintained that an August 2005 child support order had been calculated using the shared parenting guidelines, anticipating that plaintiff would have exercised his overnight parenting time with their son. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2307 (2008). She alleged in her February 2007 motion that despite the provisions of the August 2005 order that entitled plaintiff to spend two overnights per week with his son, he had never availed himself of any overnight parenting time in the eighteen months between August 2005 and February 2007. She argued that she was entitled to a retroactive modification of child support based upon the sole parenting situation that had actually existed after August 2005.
These are the pertinent facts. The parties were never married. They have one son who was born on August 28, 1990, and was nearly seventeen years old at the time the hearing in question took place in April 2007. Defendant has been the primary residential parent ever since the parties' son was a few months old. On February 10, 2005, plaintiff filed a motion to reduce child support because child support had been calculated in 2004 by a hearing officer using the sole parenting worksheet instead of the shared parenting worksheet. As a result of that motion, a judge granted plaintiff's motion to reduce child support and recalculated child support using the shared parenting guidelines. As a result, plaintiff's weekly child support obligation was reduced to $128. The judge also ordered the parties to attend and participate in the Custody/Visitation Awareness Seminar and the Case-Specific Mediation program that was available in the Family Part. The parties completed that program in January 2006. The judge also granted defendant's motion to require the plaintiff to contribute to parochial school tuition as an extraordinary expense. The judge did not, however, require a lump-sum payment for the tuition, and instead chose to spread out the costs of that tuition over the entire school year.
Two years later, on February 15, 2007, defendant filed the motion that is the subject of this appeal, in which she sought to retroactively modify child support back to August 2005 due to plaintiff's non-compliance with the shared parenting plan that was adopted in August 2005. She also sought to modify joint legal custody to sole custody. On March 15, 2007, plaintiff filed a cross-motion to enforce his parenting time. He asserted that defendant's malicious interference with his exercise of parenting rights had resulted in Parental Alienation Syndrome.
The judge set the matter down for a plenary hearing, which began on April 30, 2007. The hearing lasted the entire day and resumed on May 10, 2007. During that hearing, both parties testified, as did plaintiff's new wife and his brother, both of whom attested to plaintiff's recent efforts to see his son. The judge also interviewed the parties' son and summarized the results of that interview on the record.
The undisputed testimony from the parties established that between the time the shared parenting support order was entered in August 2005 and the time the motion was filed by defendant for a retroactive increase in her child support in February 2007, the parties' son had not spent even one overnight with his father. Although plaintiff blamed defendant for alienating his son, the testimony established that defendant never filed a visitation motion to enforce his parenting time, never once went to any of his son's football games, and never once sent his son a birthday card, a Christmas card or a Christmas present during that entire eighteen-month period. The judge observed that plaintiff had done none "of the little things that let a child know you still care."
The judge made detailed and comprehensive credibility findings. The judge found that plaintiff had attempted to mislead the court both by making an unsubstantiated allegation that defendant had falsified her paystubs and by minimizing his own wife's income. Similarly, the judge rejected as false plaintiff's explanation for why he had failed to come to the front door of his home to open it when his son came there to apologize for his disrespectful remarks over the telephone. Accordingly, the court did not find plaintiff credible. As the judge commented, "I saw his tone, his demeanor, his evasiveness, [and] his equivocation . . . on cross-examination." In contrast, he observed that defendant was "credible and sincere."
Ultimately, the judge determined that although each side bore some responsibility for the rupture of the son's relationship with his father, the blame for the eighteen-month lapse lay with plaintiff because he had made little effort to see his son. The judge cogently explained the resulting financial consequences:
The reality is that none of the expenses of raising [the parties' son] between August 16, 2005 and today, have been borne appropriately by dad because that child has not been spending [the] 130 days [contemplated by the August 2005 order] with dad under his roof with dad feeding and clothing and sheltering and recreating and doing all the things a father does with his son and incurring the costs of those things and thereby reducing the cost to the custodial parent mom for 130 days. In ...