On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1678-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
Plaintiff Denise Spiegler appeals from the order of March 13, 2008, reducing defendant Philip Spiegler's child support payments from $447 per week to $206 per week for the parties' two children. This substantial reduction is due to a number of significant changed circumstances, including the birth of defendant's third child and a substantial increase in plaintiff's income. While we conclude that the trial court correctly relied on the Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2315 (2009) (guidelines) in fixing the child support award, we reverse and remand in order that one correction be made in the calculation.
The parties were married in 1989, and had two children, one born in 1991 and the second born in 1993. The parties divorced in 1997. Although plaintiff was represented by counsel in the divorce proceedings and Property Settlement Agreement (PSA) negotiations, defendant was not. The PSA, incorporated into the Final Judgment of Divorce dated August 19, 1997, gave plaintiff the marital home while the other marital assets were divided between the parties. Plaintiff retained monies she had inherited. The PSA gave plaintiff custody of the children and required defendant to pay $490 per week in child support. It provided that "[s]aid sum has been negotiated by the parties taking into consideration respective earnings of each party and the New Jersey Child Support Guidelines." The PSA also required defendant to pay for the children's medical copayments, deductibles for dental coverage, and all prescription copayments. The PSA further provided that the child support payments would be renegotiated every three years and that "[t]he expiration of three years shall be prima facie proof of changed circumstances thereby triggering the renegotiation of the child support obligation."
At the time of the divorce, defendant was earning $48,802 annually, and plaintiff was working part-time and earning $21,000 annually. Defendant's child support payments under the PSA totaled $25,500 annually, excluding medical costs. This sum exceeded half of his gross income. After deductions were made from his paycheck for taxes, insurance payments, a 401K loan repayment, his disposable annual income was $35,908, leaving him with slightly more than $10,000 on which to live. He indicates that at that time he lived in a small apartment with a roommate due to these financial constraints.
Defendant's child support payments were reduced by consent order to $375 per week, effective January 1, 2001, because plaintiff had obtained full-time employment. Cost of living adjustments pursuant to Rule 5:6B thereafter increased defendant's child support award, so that by 2007 his child support payments were $447 per week.
Upon the birth of a child with his second wife, defendant brought an application in 2007 for the modification of his child support payments. Plaintiff filed a cross-motion opposing that application and seeking to enforce the PSA regarding dental coverage and payment of unreimbursed medical costs for the children, and seeking to require defendant to pay his share of extracurricular and extraordinary expenses for the children, and to be responsible for his share of the children's future college expenses. Defendant expressed his willingness to pay a proportionate share of the children's college expenses, but indicated that he wanted to be consulted on the selection of a college, that various financial aid should be sought, and that child support should be renegotiated at that time.
The trial court fixed defendant's child support payments pursuant to the guidelines, which the court calculated to be $206 per week. In making this calculation, the court accorded to plaintiff income of $67,787. This income was substantially larger than plaintiff's income from the previous year, when she had earned $44,553. The court attributed to defendant income totaling $80,979, consisting of his base salary of $65,000, a $400 monthly car allowance, and interest on an inheritance. When calculating defendant's deduction for his child from his second marriage, the court attributed to defendant's second wife income of $79,113, representing her earnings from her last W-2 statement. However, these earnings were unusually low because she had been on maternity leave that year. Defendant acknowledged that his second wife was expected to earn $120,000 the next year when employed full-time, and presented proofs in support of that position.
The trial court also ordered that plaintiff be responsible for the first $250 of unreimbursed medical expenses, including orthodontic care, eyeglasses, and ophthalmology care for each child and that the parties share the balance of the unreimbursed medical expenses equally. The order denied plaintiff's requests for extraordinary and extracurricular expenses and counsel fees. The court denied plaintiff's request that defendant be compelled to contribute to the children's anticipated college expenses as premature.
On appeal, plaintiff maintains that she should receive more support than the guidelines allow because the PSA had awarded her child support in excess of the guidelines and because defendant's financial circumstances with his new wife are better than hers. Plaintiff argues that the trial court should have imputed income to defendant, that the income of defendant's ...