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Sewell v. Holmes

October 14, 2009

LATASHA C. SEWELL, PLAINTIFF-APPELLANT,
v.
MARCUS A. HOLMES, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-004664-02-A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2009

Before Judges Stern and Sabatino.

Plaintiff Latasha C. Sewell appeals an order of the Family Part dated October 16, 2008, fixing the amount of weekly child support payable by defendant Marcus A. Holmes for their minor daughter. Plaintiff contends that the amount of support awarded is insufficient, and that the motion judge failed to consider various income and expense factors. For the reasons that follow, we remand this matter to the Family Part to further develop the record and to reconsider the amount of support based on the additional facts that emerge on the remand.

The pertinent background is as follows. The parties' daughter is presently six years old and resides with plaintiff in Florida. Defendant resides in New Jersey. According to the birth certificates and tax returns supplied in the appellate record, plaintiff has at least three other minor children that are not defendant's children.*fn1 There is no indication that plaintiff is receiving child support for any of her other children. The record does not indicate that defendant has any other minor children or support obligations.

The present appeal arises out of a motion by plaintiff in the Family Part to increase the child support amount for the parties' daughter. Plaintiff and defendant were both self-represented, and various documents were submitted to the court in connection with the motion.*fn2 Plaintiff participated in the motion hearing on October 16, 2008 by telephone, while defendant was present in court.

As of the time of the motion hearing, plaintiff was not working and was receiving $136 in net weekly unemployment benefits. Plaintiff had earned $16,926 in 2005, $13,505 in 2006 and $11,026 in 2007 consisting of $5,741 in wages and $5,285 in unemployment benefits. She had earned the modest sum of $317.32 for a tax services company in the first quarter of 2008. Meanwhile, at the time of the motion hearing, defendant was employed in New Jersey as a wire cutter for LAPP, USA, Inc.

A major point of disagreement in this case is the proper amount to designate as defendant's weekly wages. Unlike plaintiff, defendant did not supply the court with any of his prior tax returns. He did present a pay stub*fn3 dated June 26, 2008, which showed that he earned $532.80 in regular (forty-hour) earnings for that weekly pay period, plus another $59.94 for three hours of overtime, yielding a gross pay for the week of $592.74. The pay stub also showed that defendant had earned $19,453.97 through June 26, 2008 for the 2008 calendar year. Defendant testified that he was earning "about $500 a week" in gross wages. The judge accepted that $500 figure, and incorporated it into the standard worksheet used to calculate support under the Child Support Guidelines. The judge ascribed a $67 weekly credit to defendant for health care insurance that defendant recently started paying to cover his daughter.

With respect to plaintiff's income, the judge imputed to her $286 in weekly income, which was based on the minimum wage, a sum substantially above the weekly sum that plaintiff was receiving in unemployment benefits. The judge did not make any adjustments for other dependents, disagreeing with plaintiff that she had properly identified her other dependents in her motion papers.

Plaintiff also presented to the motion judge what may be characterized as various alleged extraordinary expenses. In particular, plaintiff presented receipts for the daughter's tuition and her extended-day fees at her Catholic school in Florida, the daughter's uniform costs, and other miscellaneous items. None of these charges were expressly included in the court's worksheet calculations.

Plaintiff further sought reimbursement for the costs of transporting the daughter three times per year to visit her father in New Jersey. On this point, the judge made no adjustment, but instead ruled that the transportation costs should be divided equally by the parties, independent of the child support.

Based on these considerations, the judge arrived at a weekly support figure of $73, adopting the figure computed with the Guidelines-based computer software. The judge further ordered defendant to pay an additional sum of $5 weekly in arrears. Plaintiff then moved for reconsideration, which was denied.

In her unopposed pro se brief on appeal, plaintiff contends that the motion judge erred in several respects, yielding what is, in her view, an inadequate support amount. She challenges the court's use of a $500 weekly income figure for defendant, contending that defendant worked an atypically low amount of overtime in the pay period shown on his pay stub. She contends that defendant's customary actual earnings are significantly above $500 per week, that he is hiding income, and that his failure to bring his tax returns to court is telling. She ...


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