On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FM-05-269-06D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Wefing and LeWinn.
The parties were divorced by a Dual Final Judgment of Divorce entered on January 29, 2007, which incorporated the settlement agreement set forth in their Dual Final Judgment of Divorce from Bed and Board of November 3, 2006. Plaintiff appeals from three orders stemming from post-judgment proceedings modifying defendant's child support obligation for the parties' daughter in the wake of plaintiff's cohabitation and subsequent remarriage. Specifically, plaintiff appeals from the order of September 12, 2008, setting defendant's child support obligation at $185.00 per week and granting defendant's request for counsel fees pending submission of appropriate documentation; the order of October 14, 2008, ordering plaintiff to pay defendant counsel fees and costs of $3630; and the November 14, 2008 order denying plaintiff's motion for reconsideration. We affirm.
The pertinent factual background may be summarized as follows. The parties were married on January 9, 1995, and have one daughter born in 1997. On October 23, 2006, they entered into a settlement agreement, which provided that defendant would pay limited duration alimony of $350 per week for a period of six years. This alimony amount was "based upon defendant's 2005 income of approximately $80,000/year and imputed income to plaintiff of $21,000/year." Pursuant to a Child Support Guidelines Worksheet appended to the agreement, defendant's child support obligation was set at $130 per week.
Shortly after the judgment of divorce was entered in January 2007, defendant filed a motion to terminate alimony based upon plaintiff's cohabitation with an unrelated male. The parties reached an agreement on modification of the amount and term of alimony, but submitted the resolution of a revised child support amount to the court.
Plaintiff's attorney filed a "position paper for calculation of child support," in which she claimed that defendant's income should be increased by the amount of certain "in kind benefits" he received from his parents, who are also his employers. Counsel claimed that review of defendant's "computerized list of . . . expenses and income" covering the period from January 2001 through July 2007 demonstrated that defendant's parents "contributed to the mortgage and mortgage principal payments" on the marital residence and "always paid all [d]efendant's property tax obligation[s]. This is a practice they started during the marriage . . . ." Counsel also asserted that an annual bonus of $3000 and an annual pay raise of four percent should be imputed to defendant as that reflected his parents' practices during the marriage. Counsel further asserted that defendant exercised fewer overnights per year with the parties' child than their agreement provides.
Defendant's attorney also filed a letter stating that defendant's annual bonus is "already included in his gross pay." Counsel denied that defendant's parents pay his mortgage expenses. Regarding the issue of overnights, counsel stated that there had been no modification of the parenting plan in the agreement.
On December 21, 2007, the trial judge entered an order reflecting plaintiff's modified alimony of $130 per week and setting defendant's revised child support obligation at $161 per week. A letter from the judge to counsel accompanied the order, stating:
I have reviewed the supplemental submissions with regard to the issue of child support. Based upon that review, I believe that [defendant's attorney's] exhibit F is the most accurate representation of the current circumstances and accordingly the $161 figure will be the order of the court.
I have reviewed and considered [plaintiff's attorney's] submission. I also note that at no time was there an application to modify child support based upon a change in circumstances in either [defendant's] income or the number of overnights. Accordingly, in my view the only change in circumstances is the change in alimony . . . . I also note that each of the plaintiff's argument[s] with regard to income and overnights . . . concerns circumstances which existed prior to the entry of the Final Judgment of Divorce. Put otherwise, they do not constitute a real change in circumstances since the Final Judgment of Divorce. In my view the only true change in circumstance warranting the modification of child support is the change in alimony. Accordingly, [e]xhibit F is the best calculation. It carryovers [sic] the assumptions made in the Final Judgment of Divorce with the exception of a change in alimony.
Defendant's exhibit F was a Child Support Guidelines Worksheet indicating that that the parties' respective gross weekly incomes were $404 for plaintiff and $1589 for defendant.
On August 12, 2008, defendant moved to terminate alimony based upon plaintiff's remarriage and to recalculate child support; defendant also sought counsel fees based upon the alleged "lack of reasonableness and lack of good faith positions advanced by the plaintiff as well as her counsel[.]" Specifically, defendant certified that plaintiff unreasonably raised claims regarding defendant's income which had previously been submitted to the trial judge and rejected, as evidenced by the judge's order and letter of December 21, 2007.
Defendant cited plaintiff's claims that he earned more income than he had reported; that his parents paid his mortgage and property tax expenses; and that he had fewer overnights with the parties' daughter than the number set forth in the agreement. Defendant asserted that these contentions were false, had already been considered and rejected by the judge, and, therefore, evidenced plaintiff's ...