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Warmke v. Warmke

January 26, 2009

JEFFREY WARMKE, PLAINTIFF-APPELLANT,
v.
STEPHANIE SMITH WARMKE, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-22-07M.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2008

Before Judges Collester and C.L. Miniman.

Jeffrey Warmke, former husband of defendant Stephanie Smith Warmke, appeals from a February 22, 2007, application in aid of litigant's rights filed by defendant and a cross-motion filed thereafter by plaintiff father. Defendant sought an order fixing the amount of childcare arrears due from plaintiff; modification and enforcement of child support; modification to parenting time; modification of the life insurance required by the May 21, 1996 property settlement agreement (PSA); and an award of counsel fees. Plaintiff opposed all of the relief sought by defendant and filed a cross-motion for an order compelling contribution to summer camp expenses, a hearing aid for the older son and medical expenses. Plaintiff also sought an order compelling defendant to share the transportation reimbursement from the public school with plaintiff, who also provided transportation, and an award of counsel fees.

The Family Part judge required additional information to recalculate child support and denied defendant's request for reimbursement for childcare for the period from 1997 through February 1999, without prejudice to allow for production of documentation proving the expenses for that period. The judge granted defendant's request for reimbursement of childcare expenses from February 1999 through June 1999 and determined she was entitled to an additional $450 from plaintiff for childcare. The judge then denied defendant's request for reimbursement of childcare expenses from June 1999 through September 2003 without prejudice to allow for presentation of additional proofs. With respect to childcare expenses from September 10, 2003 through June 16, 2005, the judge found that defendant was entitled to reimbursement in the amount of seventy-five percent of $35,675.

As to plaintiff's cross-motion for sharing transportation costs, the judge denied relief without prejudice to submission of additional proofs by way of certifications because there was insufficient evidence to determine the percentage of transportation provided by each party and, additionally, the issue was significantly disputed. She did determine that any credit due plaintiff for transportation was to be applied to childcare arrears. The judge denied defendant's request for additional life insurance, but required plaintiff to submit proofs demonstrating that the life insurance he carried was equivalent to that required by the PSA. She also denied plaintiff's request for summer camp expenses.

On appeal, plaintiff asserts that the trial court erred by

(1) failing to evaluate the reasonableness of the childcare expenses, (2) impermissibly amending the parties' 1999 settlement agreement, (3) relying upon hearsay evidence contained in defendant's certification, (4) failing to bar defendant's claims under the equitable doctrines of laches and estoppel, (5) failing to hold a plenary hearing to determine issues of disputed fact, and (6) denying plaintiff's request for reimbursement of summer camp costs. We reverse and remand for a plenary hearing.

The parties were married on June 16, 1984. Two children were born during the marriage: one son born September 16, 1991, and a second son born January 4, 1994. The older son suffers from Down Syndrome, Pervasive Developmental Disorder, anxiety disorder and seizures, as well as hearing and vision impairments.

The parties divorced on May 21, 1996. They share joint legal custody of the children. Defendant has primary physical custody, and plaintiff receives liberal parenting time. Pursuant to the PSA, plaintiff had parenting time with the boys on alternating weekends, from Friday night through Monday morning, and every Wednesday evening. Since 1999, the parties have reversed their parenting time arrangement during the school summer holiday, with plaintiff having primary physical custody and defendant visitation. Both boys attended camp during the summer months. Defendant contributed twenty-five percent to the cost of camp during the summers of 1999 and 2000.

At the time of the divorce, both parties worked outside of the home, and the children were cared for by a Ms. Maytidu at a cost of $250 per week. Pursuant to the PSA, plaintiff paid $175 of that amount. The cost of childcare subsequently increased to $300 per week, or $1200 monthly.

In 1999, the younger child began attending school full-time, and the parties agreed that the full-day care provided by Ms. Maytidu was no longer necessary. They entered into a written stipulation of settlement on February 25, 1999, that specifically provided that these childcare expenses were no longer warranted and would not continue after the end of the 1998-1999 school year. The stipulation stated: "Appropriate after-school childcare agreements will be identified by both parties for the 1999-2000 school year."

Plaintiff remarried in September 1999. At or about the same time, defendant hired a college student studying special education to care for the boys at a cost of $150 per week. Plaintiff contributed $225 per month toward those expenses. However, the student was unable to control the older son, and defendant was required to make other childcare arrangements. In early 2000, she rehired Ms. Maytidu at a cost of $300 per ...


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