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Berry v. Davenport


December 10, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-661-09.

Per curiam.


Submitted: November 18, 2009

Before Judges Axelrad and Sapp-Peterson.

In this post-judgment matrimonial action, plaintiff appeals from the Family Part's December 22, 2008 order establishing his child support obligation for his then one-and-one-half-year-old daughter at $217 per week and directing him to pay an additional $25 per week towards his arrears. Plaintiff challenges the support order as not based on accurate or current documentation. We affirm.

The parties had joint legal custody of their infant daughter, with defendant as the parent of primary residence. The parties first appeared before a hearing officer, after which defendant elected to have the matter reviewed by a judge. The child support award was admittedly based on a sparse record, which plaintiff, at the time, did not dispute.*fn1 Plaintiff told the judge that according to his 2007 tax returns, he earned $38,000. He stated that he was a fashion designer by trade and worked part-time in a restaurant, which is what he was currently doing. Plaintiff also indicated that his income was "probably going to be less this year." Defendant testified that plaintiff had other sources of income from apartments that he sublet. She also testified that the restaurant where plaintiff worked was family-owned and that plaintiff controlled the books. Plaintiff denied the additional income and the court found his testimony credible.

Defendant testified that she earned $30,000 as a part-time dental hygienist. When the court inquired of plaintiff whether he had any reason to believe that defendant did not earn that amount, plaintiff responded that he knew she worked two to three days a week and believed she was telling the truth "in a roundabout way." Defendant also testified about what she paid for medical insurance for the child and work-related child care and the parties testified about plaintiff's parenting time.

The court used the computer-generated program to calculate child support under the guidelines using the sole parenting worksheet based on plaintiff's 2007 tax return income of $38,000 and defendant's represented income of $30,000, adding in the net work-related child care and child's share of health insurance premiums, and allowing defendant an adjustment for parenting time expenses. The court arrived at plaintiff's child support obligation of $217 per week. The court made clear to the parties that that this figure could be modified if additional information were presented to the court.

On appeal, plaintiff claims he only earned $24,000 in 2008 and asserts a belief that defendant earned substantially more money than she represented to the court. Defendant disputes that fact and contends that plaintiff failed to pay any child support and failed to appear at a subsequent enforcement hearing.

We discern no error by the court. We are satisfied there is substantial credible evidence in the record to support the gross income figures relied on by the court for each of the parties, additional child-related expenses paid by defendant, and parenting time expenses credited to plaintiff, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), and child support was appropriately calculated in accordance with the guidelines. Moreover, as the trial judge clearly stated, plaintiff could have moved for reconsideration of his child support obligation upon submission of his 2008 tax return and/or any other pertinent financial information that was not available at the time of the hearing. Plaintiff, however, chose not to provide additional information to the trial court and, instead, filed this appeal.


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