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Pennell v. Pennell

December 10, 2009

BERNADETTE PENNELL N/K/A SEJECK, PLAINTIFF-APPELLANT,
v.
ALAN PENNELL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-754-06N.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 12, 2009

Before Judges Graves and Newman.

Plaintiff Bernadette Pennell n/k/a Sejeck appeals from a post-judgment order in this matrimonial action. The parties were married on September 23, 1994, and divorced on April 19, 2006. Two children were born of the marriage, a daughter in 1993 and a son in 1995. Their daughter is an athlete who participates in field hockey, lacrosse, and soccer. Their son is also an athlete and participates in lacrosse, football, and other sports as well. The daughter received a $30,000 scholarship to the Peddie School, attributable to her athletic skills. The parents each contributed one-half of the additional tuition costs in the amount of $5,000 each, along with sharing the costs of her books.

The parties entered into a Property Settlement Agreement (PSA), according to which, they share joint legal custody and plaintiff has primary physical custody of the two children. There has been a history of post-judgment motions which have involved aspects of support and the sale of the marital home, among other issues.

The subject of this appeal refers to plaintiff's motion for the following relief: 1) to retroactively increase child support award to April 20, 2007 to account for increased health insurance premium and unexercised parenting time; 2) to review the child support guidelines as child support has not been modified in three years; 3) to request that defendant pay post-judgment interest, $64.10; and 4) to request defendant pay $2,996.76, plus interest for the children's sports activities.

Defendant urged the motion court to deny plaintiff's motion in its entirety and cross-moved to decrease child support, to compel plaintiff to amend her 2007 federal and state tax returns and claim only the daughter as a dependent, and to compel plaintiff to amend her 2008 federal and state tax returns to claim only her son if she had already filed the return and claimed both children. He also sought counsel fees and costs.

In a written post-judgment order, the court addressed each of the issues presented in some detail. Judge Arnold B. Goldman reduced the child support that had been set at $213 per week to $174. He reasoned that the daughter was away at the Peddie School with each of the parties contributing approximately $5,000 plus incidental costs. Taking this into consideration, child support was not found necessary when the daughter was boarding at school for six months of the year.

The court also recognized that there were zero overnight visits for defendant, who had not complied with the visitation schedule. The court pointed out that the wife was receiving $300 per month in limited duration alimony and mentioned the union dues that defendant was required to pay for his full-time position with the post office and the union dues he had to pay at Shop Rite, where he worked a second job to keep up with expenses. In retroactively modifying the child support, the trial court used the motion filing date of December 16, 2008.

The trial court noted that with respect to the issue of claiming dependents, paragraph 23 of the PSA provided that the parties could each claim one of the children as a dependency exemption on federal and state income tax returns. After the first year, the parties agreed to alternate which child was claimed as a dependent. The PSA further stated: "The Husband shall forfeit his right to claim either child as a dependent exemption if he is not current in his child support obligation on January 30 of each year." Defendant proved that he was current with his child support obligation on both January 30, 2007, and January 30, 2008, and the judge so found.

With regard to the issue of the claimed sports arrearage, the PSA set forth in paragraph 8 that: "The parties agree to allocate fifty (50%) percent to the Husband and fifty (50%) percent to the Wife for any and all seasonal sports or sports camp fees, including registration, tournaments and equipment."

Plaintiff sought to be reimbursed $2,996.76 plus interest for various expenses incurred for the sports activities of the children. The trial court agreed that defendant should not be held responsible for the full amount because it included monies expended for gas, hotel, food, and transportation to games and tournaments both within and outside of the State. The court considered the inclusion of all of these charges was "simply over-reaching by plaintiff." The parties agreed to arrears of $726.56 to be paid within sixty days.

In connection with future sports expenses, Judge Goldman considered that the financial burden of the sports activities had become onerous on defendant. It further appeared to the judge that the obligation to obtain defendant's prior consent to engage in new activities was not being strictly adhered to. As a consequence, the court capped defendant's obligation towards sports activities at $1,000 per year with two installments of $500 each payable on January 1, and on July 1.

On appeal, plaintiff raises the following issues for our consideration:

A. THE COURT ERRED BY MODIFYING THE TERMS OF THE PSA LIMITING THE RESPONDENT'S RESPONSIBILITY FOR FUTURE SPORTS EXPENSES TO $1,000.00 PER YEAR.

B. THE TRIAL COURT ERRED IN FAILING TO FULLY ENFORCE THE TERMS OF THE PSA AS IT REDUCED THE AMOUNT THE RESPONDENT WAS REQUIRED TO PAY.

C. THE TRIAL COURT ERRED IN NOT GRANTING RETROACTIVE MODIFICATION TO ACCOUNT FOR THE CREDITS RESPONDENT RECEIVED AS THE PARENT OF ALTERNATE RESIDENCE DURING A TIME IN WHICH HE DID NOT EXERCISE VISITATION BACK TO WHEN HE ...


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