On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-646-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Graves, and Alvarez.
Plaintiff, Maryrose Crist, appeals from a Family Part order issued July 13, 2007, which awarded defendant, David K. Crist, post-judgment relief. Defendant cross-appeals the court's denial of his application for counsel fees and costs. We affirm in part, reverse in part, and remand for a plenary hearing as to the remaining issues.
On April 18, 2000, a final judgment of divorce was entered which incorporated the parties' property settlement agreement (PSA). They share joint legal custody of two teenage daughters, ages seventeen and fifteen, who reside with plaintiff. The PSA allowed defendant 104 overnight visits with the children per year.
On June 15, 2007, defendant filed a notice of motion to enforce litigant's rights and for other relief. He sought the following: (1) enforcement of the parties' agreement for "joint legal custody" and family counseling; (2) recognition of defendant's right to joint parenting time; (3) recalculation of weekly child support; (4) the award of one of the children as an exemption for federal income tax purposes; (5) an order restraining plaintiff from discussing monetary issues with the children; and (6) counsel fees.
Plaintiff filed a notice of cross-motion on June 28, 2007, in which she sought the following: (1) redress for defendant's payment of federal taxes from the children's savings accounts;
(2) to be named a joint custodian of the children's savings accounts; (3) to restrain defendant from removing funds from the children's accounts without her permission; (4) to compel defendant to be responsible for all the tax consequences of his decision to pay the children's 2007 taxes with funds taken from their accounts; (5) to be reimbursed for extraordinary expenses incurred on behalf of the children; (6) to have child support remain at $300 a week; (7) to compel the use of the sole-parenting worksheet if support were recalculated; (8) to continue to be able to declare both children as dependents on her tax return; (9) to be awarded counsel fees; (10) to compel defendant to file an amended case information statement (CIS), on the grounds that his initial filing was fraudulent; (11) to compel defendant to produce proof of life insurance; (12) a plenary hearing; and (13) to obtain reimbursement of $600 from defendant related to a rescheduled vacation.
The PSA required defendant to pay weekly child support of $300, based on calculations made using the sole-parenting worksheet. See Child Support Guidelines (Guidelines), Pressler, Current N.J. Court Rules, Appendix IX-C to R. 5:6A at 2346-48 (2008). The family court judge recalculated child support using the shared-parenting worksheet, and thereby reduced weekly child support to $209 effective June 15, 2007, the filing date of defendant's motion. See Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-D to R. 5:6A at 2349-52 (2008). The figure was based on weekly income of $2525 for defendant, and $1833 for plaintiff. Plaintiff works limited hours in order to be home when the children return from school three days a week. Both parties are employed as engineers. Pursuant to the PSA, the parties share the cost of the children's private schooling equally.
Defendant's father created college savings accounts for the children's education, to which the parties, to their credit, contributed during the marriage. The PSA specified that neither would invade the college accounts without the written consent of the other. Until 2007, each party paid one-half the taxes due on the accounts from their own funds. In 2007, however, defendant unilaterally withdrew $797.52 from the account in order to pay taxes. Plaintiff had sent defendant $380, anticipating that the year's tax liability would be paid in the same manner as in prior years. In the July 13, 2007 order from which this appeal is taken, the judge added plaintiff as a signatory on the account, but did not require defendant to replace the withdrawn funds. She directed defendant to reimburse the $380 plaintiff had sent him.
On June 12, 2007, the parties filed a consent order in which they agreed to select a mutually acceptable family counselor whose services would be covered by their insurance.
Plaintiff contends the need for counseling arose because of conflicts between defendant and the parties' oldest child. Counseling was supposed to have commenced by June 30. Delays occurred in the selection of the counselor, as a result of which the process had not begun as of the July 13 hearing.
The court conducted oral argument on July 13, 2007, having previously issued a tentative decision. R. 5:5-4(e). That same day, the court issued an order granting all of defendant's requests, with the exception of counsel fees. All the relief plaintiff sought was denied, except that the court ordered plaintiff be added as a joint custodian of the children's college accounts, enjoined defendant from removing funds from the children's accounts in the future, and required defendant to produce proof of life insurance. Using the shared-parenting worksheet, ...