On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-22-08G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2009
Before Judges Gilroy and Simonelli.
Plaintiff Susan B. McCrea appeals from that portion of the November 21, 2008 Family Part order denying her request for retroactive child support to May 29, 2007, and her request for reimbursement of her share of the fees of a court-appointed guardian ad litem. We reverse and remand for further proceedings.
The parties were married on April 23, 1985. Five children were born of the marriage, two girls and three boys. Pursuant to a September 21, 1999 final judgment of divorce, plaintiff and defendant Michael McCrea shared joint custody of and parenting time with the children, with plaintiff having primary residential custody. The judgment required defendant to pay $100 weekly child support.
On May 3, 2002, defendant filed a motion, seeking to modify custody. On May 30, 2002, the court ordered that the daughters would reside with plaintiff, and that the parties would share parenting time with their sons.*fn1 The order also required defendant to pay $147 weekly child support. By order of June 5, 2003, the court vacated all child support arrears retroactive to May 2, 2002, and suspended future child support payments pending further agreement by the parties or court order.
On May 29, 2007, plaintiff filed a pro se motion seeking, in part, to modify the May 30, 2002 order to reflect that her sons resided primarily with her and would have parenting time with defendant, and to compel defendant to immediately pay child support in accordance with the child support guidelines.
Plaintiff alleged that the children primarily resided with her. Defendant alleged that from 1999 to 2002, his sons spent more time with him on a daily basis than with plaintiff, and that the eldest daughter began living with him shortly after entry of the May 30, 2002 order. Defendant claims that this change in residential custody resulted in the entry of the June 5, 2003 order.
Plaintiff is an attorney licensed to practice law in New Jersey. She specializes in matrimonial matters and regularly appears in Union County, where she filed her motion. As a result, the matter was transferred to Middlesex County. Pursuant to a January 9, 2008 consent order, plaintiff withdrew her motion "subject to re-filing in Middlesex County and without prejudice as to either parties' claim for relief based upon the original filing date of May 29, 2007."
Plaintiff re-filed her motion in Middlesex County on March 25, 2008. By order of May 23, 2008, the court found that the parties' sons lived with plaintiff and had parenting time with defendant.*fn2 However, the court did not order retroactive child support because it was "unable to determine the amount of [p]arenting time exercised by [d]efendant, as the conflicting affidavits of the parties raise a number of fact questions which can arguably only be resolved at a plenary hearing (which is not ordered at this point)." The court appointed a guardian ad litem to aid in resolving the child support issue and ordered each party to pay fifty percent of her $5000 retainer "subject to reallocation/reimbursement."
Defendant filed a motion to reconsider the May 23, 2008 order. On August 12, 2008, plaintiff filed a cross-motion, seeking various relief, including compelling defendant to pay child support retroactive to May 29, 2007. By order of August 28, 2008, the court denied defendant's motion and ordered, in part, that defendant pay child support retroactive to August 12, 2008. However, the court permitted plaintiff to seek an earlier date after receipt of the guardian ad litem's report. The court denied without prejudice plaintiff's request for reimbursement of her portion of the guardian ad litem's retainer.
The guardian ad litem then issued her report, finding that the parties' oldest son*fn3 had not exercised any parenting time with defendant since he was in the ninth grade, that the second oldest son had not spent any overnights with defendant since September 2007, that the youngest son "only went occasionally since May 2007 (with more regular time during January 2008)[,]" and that none of the children had spent any overnights with defendant since March 2008.
Plaintiff then filed a motion, seeking, in part, child support of $27,235 retroactive to May 29, 2007. She also sought reimbursement of her share of the guardian ad litem's fee based upon defendant's alleged false representations to the court about his parenting time, and attorney's fees ...