On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM 12-1252-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and LeWinn.
Plaintiff Sabatino A. Russo appeals from various provisions of the Family Part order entered on July 29, 2007, recalculating his child support obligation.
The parties were married on September 29, 1990. They have one child, a son born July 18, 1993. The parties were divorced by judgment entered on March 10, 1998, incorporating their property settlement agreement (PSA).
Paragraphs (6)(A) and (B) of the PSA set forth plaintiff's child support obligation:
(A) Effective upon the execution of this Agreement, the Husband shall pay the Wife as and for child support the sum of $1,500.00 Dollars per month. Said child support shall be payable directly to the Wife on or before the first day of each month. The parties agree and acknowledge that this monthly child support is based upon the Husband earning approximately $200,000.00 Dollars per year in gross income. Should the Husband's actual annual gross income exceed $200,000.00, then the Husband shall pay the Wife Fifteen point Six Percent (15.6%) of his gross earnings in excess of $200,000.00 as additional child support. This additional child support shall be paid to the Wife in a lump sum payment on or before February 15th of the following year. To verify the Husband's annual earnings, he shall provide the Wife with a copy of his W-2 and 1099 forms on or before February 1st of each year and a copy of Federal tax return by April 15th of each year.
(B) The parties shall pay the cost of the Wife's work related child care expenses in proportion to their respective incomes. The Husband agrees to pay Seventy-Five Percent (75%) of the child's summer camps, extracurricular lessons, sports, recreational programs and other activities.
Following the divorce, plaintiff remarried and became the father of twins on November 21, 2000. At the time plaintiff filed his motion to recalculate child support, on May 9, 2007, the twins were six and a half years old.
In his motion, plaintiff stated that his child support obligation had not been reviewed in the nine years since entry of the final judgment of divorce. He alleged "a change in circumstance warranting a recalculation of child support[,]" namely, the birth of his two other children. Plaintiff sought an "other dependent deduction" pursuant to the New Jersey Child Support Guidelines. Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2290-91 (2008). Plaintiff also noted the fluctuations in his income over the preceding six years, and sought to have the court use his three-year average income when calculating child support. Id. at 2309.
The record reveals that plaintiff's gross annual income for the years 2001 through 2006 was as follows: