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Smith v. Smith

June 23, 2008

BETH SMITH, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
KEVIN SMITH, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FD-16-129-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2008

Before Judges Grall and Chambers.

Plaintiff Beth Smith appeals from a post-judgment order of the Family Part modifying child support, and defendant Kevin Smith cross appeals from the award of counsel fees in plaintiff's favor. The post-judgment order was entered following a plenary hearing on plaintiff's motion for modification of child support, allocation of responsibility for college expenses and other relief not at issue on appeal. The judge's determinations are supported by substantial credible evidence in the record and consistent with controlling legal principles. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Accordingly, we affirm substantially for the reasons stated by Judge Mizzone in his oral decision of July 24, 2007.

The parties were married on July 30, 1983. There were three children born of their marriage; the first was born in 1988, the second in 1989 and the third in 1993. The parties were divorced in the State of Maryland in November 1995. The final judgment incorporates a separation agreement executed in 1992 and an addendum executed in 1993 (collectively the PSA). The PSA provides for annual review of child support on May 1 of each year after 1993. The PSA also includes an agreement to "share the costs of tuition, room, board, laboratory and other fees, and necessary transportation associated with" college or other post-secondary education.

Although the parties were divorced in Maryland, plaintiff filed a post-judgment motion in this State in October 2001. In 2002, the court determined that this State had jurisdiction and entered a consent order declaring that it would "hear all issues regarding custody, child support and post-judgment issues." By order of March 14, 2002, the court applied New Jersey's child support guidelines and fixed support in the amount of $599 per week. In accordance with Rule 5:6B, the child support was increased to $630 per week by order of November 24, 2003, and to $679 per week by order of November 28, 2005.

Plaintiff filed the motion at issue here on January 19, 2006. On September 1, 2006, while the motion was pending, the parties' oldest child entered college as a resident student. This change in circumstance warranted modification of child support for the two younger children and a determination of the parties' respective income that would permit allocation of responsibility for college expenses in accordance with their PSA. In addition, the May 1 date for annual reconsideration of child support in accordance with the PSA arrived while the motion was pending. Accordingly, the trial court calculated two separate support awards -- one for the period between September 1, 2006, and April 30, 2007, and one for the period beginning May 1, 2007.

In calculating child support based on evidence presented at the hearing, the trial court applied New Jersey's child support guidelines. The court determined defendant's actual income during the relevant periods. The court imputed income for full-time employment to plaintiff, who was working part-time as a registered nurse. The trial judge fixed the amount of imputed income based on plaintiff's actual hourly wages for part-time work during the relevant periods. The parties' combined net income was $3303 per week for the period between September 1, 2006, and April 30, 2007, and $3477 per week for the period beginning May 1, 2007. During both periods, defendant earned seventy-five percent and plaintiff earned twenty-five percent of the total net income. On that basis, the court fixed child support for the two children who remained in plaintiff's home at $468 per week for the period beginning on September 1, 2006, and ending on April 30, 2007, and $495 per week for the period beginning on May 1, 2007.

The trial court allocated responsibility for college expenses listed in the parties' PSA in proportion to the parties' respective income and imputed income during the relevant periods. The court did not award additional support for that child.

The court awarded plaintiff counsel fees in the amount of $20,000.

Plaintiff presents the following issues on her appeal:*fn1

I. THE CHILD SUPPORT AWARDED WAS UNREASONABLE, WAS CONTRARY TO THE EVIDENCE AND WAS INCONSISTENT ...


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