On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2494-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 10, 2008
Before Judges Parrillo and Lihotz.
Defendant Eric C. Schwartz appeals from a December 12, 2007 Family Part matrimonial order, which modified his alimony and child support obligations. Defendant argues the order is against the weight of the evidence in the motion record. We agree. Accordingly, we reverse the December 12, 2007 order and remand for further proceedings.
The parties were divorced on July 23, 2003. Incorporated into the final judgment of divorce (FJOD) was a negotiated property settlement agreement (PSA) resolving the collateral issues arising in the matrimonial matter. Defendant, who earned $250,000 annually as a National Vice President of Sales for Ferragamo, agreed to pay $2500 per month for the children's support, and $5000 per month alimony to plaintiff, Christina M. Schwartz.
The terms of the PSA provided the parties would share joint legal custody of the two children, born April 12, 1993 and June 2, 1997. Plaintiff was designated the parent of primary residence and defendant the parent of alternant residence. At the time, both parents resided in Englewood Cliffs and they stated, the children would remain "domiciled in the State of New Jersey[.]"
In the summer of 2004, defendant's employment with Ferragamo ended. He received twelve months' severance. Defendant obtained a job with a new company. However, his base compensation was set at $150,000. Defendant could earn an additional bonus based on the company's profitability.
In 2006, plaintiff requested to relocate to Florida. The parties discussed the proposed move, along with defendant's request for a reduction in the previously designated support obligations due to his changed employment. The framework for an agreement was reached. The comprehensive modifications of the PSA were placed in a proposed consent order. First, plaintiff and the children would relocate to Florida and defendant's parenting time would be modified. The actual schedule of parenting time needed to be finalized. However, defendant requested the children spend one weekend each month, half of the summer, and school breaks in New Jersey. He also agreed to visit with the children in Florida. Additionally, defendant's monthly support obligations were reduced to $3350 for alimony and $1650 for child support. This reduction was contingent upon defendant's verification of his change in income. Finally, defendant assumed the obligation to pay "all costs associated with his parenting time with the children in Florida and/or New Jersey," which included transportation costs and any expenses related to the exercise of parenting time for defendant or the children.
The parties agreed on a parenting time schedule. On July 1, 2006, plaintiff and the children moved to Florida. Defendant commenced making the reduced support payments. However, defendant neither executed the proposed consent order memorializing the agreement terms, nor provided documentation supporting his claims of reduced income.
Plaintiff filed a motion to enforce the support provisions of the PSA or, in the alternative, to modify support based upon defendant's income. She also sought payment of counsel fees and costs incurred to present the motion.
Defendant responded. He attached his 2006 W-2 from his new employer, Rafe Studios, LTD, reflecting annual wages of $164,139.64, and a pay stub, which stated defendant's year-to-date income as of October 31, 2007, was $144,045.77. Defendant noted he had paid the combined alimony and child support of $5000 since the move. Also, he paid the children's travel costs incurred during parenting time. Although the costs were not quantified, the children had traveled to New Jersey four times during the prior year and spent eight weeks with defendant during the summer.
Plaintiff argued the parties calculated alimony and child support applying a "formula" of forty per cent of defendant's gross income. Since defendant misstated his income as $150,000, she proposed the court order alimony and child support of forty percent of defendant's actual ...