On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-96-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2008
Before Judges Parker, Yannotti and LeWinn.
In this post-judgment matrimonial matter, defendant Lawrence S. Newman appeals from two orders of the Family Part entered on January 25, 2008; the first order denied his motion to vacate his alimony obligation to plaintiff, Debra Newman; the second order granted plaintiff's cross-motion to compel defendant to pay fifty percent of the parties' children's after school care, summer camp and unreimbursed medical expenses.*fn1 For the reasons that follow, we affirm.
The parties were married on September 2, 1995, and have two daughters who were eleven and nine years old at the time defendant brought the motion which is the subject of this appeal. The parties were divorced by a judgment entered on April 27, 2005, which incorporated their property settlement agreement (PSA); neither party was represented by counsel at the divorce hearing.
The parties' PSA provides, in pertinent part:
Husband shall pay $370.00 per week as and for spousal support to be paid through the Morris County Probation Department by the 1st of each month. Alimony will be based on Husband[']s income according to the matrimonial guidelines set fourth [sic] by the Superior Court of New Jersey.
Husband shall pay child support for the minor children of the marriage in the amount of $214.00 per week, with all payments made through Morris County Probation on the first day of each month. Husband shall contribute 50/50 to before and after school care and summer camp. Child support will be based on Husband[']s income according to the matrimonial guidelines set fourth [sic] by the Superior Court of New Jersey.
On December 1, 2005, pursuant to a motion brought by defendant, the trial court entered an order reducing his alimony obligation to $330 per week and his child support to $150 per week, effective November 18, 2005. The court provided the following statement of reasons for this order:
The Court is satisfied that the [defendant's] appropriate income for calculation of child support and alimony is $1,200.00 per week. This amount is his current income based upon new employment. The Court is satisfied that he lost his employment some time ago and has made all reasonable good faith efforts to obtain new employment and has done so at the rate of $1,200.00 per week. This affects the alimony award and the child support award. Based upon the information available, the Court concludes that [defendant] has the ability to pay $330.00 per week alimony rather than $370.00 as agreed to in the [PSA]. The Court concludes that his unemployment and new position constitute[ a] sufficient change in circumstances to warrant this review. The sole basis upon which the Court reduces the alimony from $370.00 per week to $330.00 is his lessened ability to pay.
Having determined the alimony amount, the Court then calculated the child support in accordance with the Child Support Guidelines and concluded that $150.00 per week is the appropriate amount.
The court appended a Child Support Guidelines worksheet to its order reflecting an "other dependent deduction" in the amount of $206.00, granted to defendant for his child from an earlier marriage. Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2323 (2009).
On December 19, 2007, defendant filed a motion to correct "clerical errors in the calculation of defendant's child support obligation[,]" and to "[v]acat[e] the alimony provision of the parties' [PSA] together with accrued arrears . . . as being ab initio not fair and equitable and setting the matter down for a determination of the defendant's alimony obligation." In support of this motion, defendant's attorney submitted a certification setting forth the grounds for the relief sought.
Defendant did not file a certification.
Counsel asserted that the first "clerical error" in the worksheet appended to the December 1, 2005 order, was the insertion of defendant's child support obligation for his other child at line 2d of the worksheet ("other dependent deduction"), rather than at line 2b ("prior child support order"). Counsel asserted that defendant was "not in an [o]ther [d]ependent [d]eduction situation. He has one child from a prior marriage and pays child support to his former wife in the amount of $206 per week." Counsel attached a supporting exhibit in the form of a letter from a Family Part judge, dated May 20, 2004, stating that the calculation for defendant's other child "should be $206.00 per week." No order for such child support was appended. Counsel argued that the insertion of defendant's other dependent deduction on line 2d "resulted in a higher child support award."*fn2 Counsel appended no child support worksheets to demonstrate the difference in the child support amount resulting from the alleged "clerical errors."
Counsel further stated that defendant received no "adjustment" for parenting time expenses on line 19 of the worksheet and that defendant had been seeing the children overnight each Saturday since approximately July 2005. Again, counsel provided no supporting documentation for this assertion.
Regarding the request to vacate the alimony provision in the PSA, counsel argued that the $370 alimony amount in the agreement was calculated in error, and was based upon imputed income ...