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Rod v. Gidley

October 28, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1019-96C.

Per curiam.


Submitted: August 25, 2009

Before Judges C.L. Miniman and Simonelli.

Plaintiff David M. Rod appeals from a final order entered on September 19, 2008, reconsidering and reinstating all provisions except ¶ 4 of an order entered on August 1, 2008; awarding defendant Donna M. Gidley, formerly known as Donna M. Rod, $500 in counsel fees; and denying plaintiff's request for a plenary hearing. The reinstated provisions of the earlier order set child-support arrears at $18,660 through July 28, 2008; directed the Probation Department to establish an account and collect the arrearages as well as weekly child support in the amount of $240 per week; required plaintiff to pay fifty percent of the eldest child's college expenses and related costs; reimburse $1,216.50 to defendant, which was one-half of the initial deposit paid to the college; reimburse defendant for his share ($438.60) of uncovered medical expenses; maintain life insurance; and reimburse defendant for $2,000 of counsel fees and costs in connection with her enforcement action. Plaintiff contends the Family Part judge erred in denying his post-decision request on September 19, 2008, for a plenary hearing and in requiring him to pay one-half of his daughter's college expenses. We affirm.

The parties were married on May 6, 1988, and divorced on April 15, 1996. There were two children born of the marriage, a daughter born in 1990, and a son born in 1992. The parties share joint custody with defendant as the parent of primary residence. The Inter-spousal Agreement executed on October 1, 1995, provided for child support as follows:

The husband shall pay to the wife the sum of $160.00 per month as and for child support, up until October of 1995, at which time this figure shall be increased to $180.00 per month. Payments shall be made directly from the Husband to the Wife. The husband shall also pay work related child care costs, until the children enter school.

As the children enter school, the saving resulting from the decrease in childcare costs shall be divided equally between the parties. This arrangement is made based on weekly net incomes of $363.50 for the Wife and $665.32 for the Husband. (Emphasis added.)

It is undisputed that plaintiff made weekly child support payments at a rate of $160 initially, then $180 as of October 1995, plus one-half of childcare expenses. When the children were both in school by September 2002, plaintiff was paying $240 each and every week through May 7, 2005. It is also undisputed that at that time plaintiff contacted defendant and advised her that he would not be able to make child support payments because he was unemployed.

Defendant agreed to suspend child support temporarily on condition that accumulating arrearages would be paid. Later, defendant agreed to permit plaintiff to make partial payments of $140 per week commencing July 31, 2005. Arrearages up to that time totaled $2,640. With the exception of August 14 and 21, 2005, plaintiff made weekly child support payments of $140 until May 19, 2008, with two payments in 2007 and the last six payments in 2008 being made late. Arrearages for the weeks of July 31, 2005, through May 19, 2008, totaled $14,880 for an outstanding total of $17,520.

Defendant made multiple informal efforts during this period to secure full payment of child support. On February 21, 2006, plaintiff wrote, "My full intention is to make sure [my son and daughter] have their support every week[,]" and reminded defendant that he had paid child support on time and in the full amount from the time of the divorce until May 2005. He promised to make payment when he could "afford to without losing my home." Defendant pressed for payment again on May 4, 2006, stating that plaintiff "owe[d] $6,820 in back CS."

On December 28, 2006, defendant wrote to plaintiff saying they had to talk about "getting back on track with your child support" and college for their daughter. She pointed out that he was $9,220 in arrears and she felt he was taking advantage of her. She threatened legal action if he did not get back on track in sixty days. She also stated that their daughter had begun her search for a college and liked Johnson and Wales University. She asked if he was prepared to pay his share and stated that their daughter would apply for every possible grant and loan, but it might not be enough. "According to our divorce agreement, you are responsible to pay 1/2."

The Inter-spousal Agreement actually provided:

It is specifically understood and agreed by and between the Husband and the Wife that both parties have an obligation to provide for the post secondary education of their children, taking into consideration the respective income and assets of the parties at the time the children [sic] attains sufficient age. The parties agree to consult with a view toward adopting a harmonious policy concerning the post secondary education of the child. Accordingly, when the child is prepared to enroll in post secondary school, the non-custodial parent shall have the right to approve, in advance, an educational institution consistent with ...

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