On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-330-03C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Graves and Newman.
Defendant Claudia Campbell appeals from an order of January 23, 2009, which terminated plaintiff Michael Campbell's child support obligation for his two daughters effective August 6, 2008, and also directed that probation recalculate any arrears on this account, suspending, at the same time, any enforcement action on the arrears until further order of the court. In the body of the order, the court had granted plaintiff a $4,500 credit against his child support arrears in compliance with an earlier court order of August 6, 2008.
By way of background, defendant appealed an August 6, 2008 order which had given full legal and physical custody of the parties' two daughters, M.C. and G.C., to plaintiff. This order was affirmed in an opinion by this court on August 11, 2009. Campbell v. Campbell, No. A-0393-08 (App. Div. Aug. 11, 2009). We held that the New Jersey courts had subject matter jurisdiction over the child custody dispute and that the children still had a significant connection to this State, despite the fact that defendant had taken them to Germany for the purpose of having surgery performed on G.C. for her club foot. Id. at 10-13. That surgery had finally taken place and G.C. was receiving therapy. However, defendant remained in Europe well beyond any order provided by the courts of this State. Indeed, there was no intention for defendant "to keep the children overseas for years under the auspices of G.C.'s recovery." Id. at 17.
According to plaintiff's brief filed on August 3, 2009, defendant still has not complied with the court order of August 6, 2008, which required defendant to return to this country with the two children. Notwithstanding, defendant contends on this appeal that plaintiff should not have received a credit of $4,500 toward any child support arrearages. This $4,500 credit was in connection with the August 6, 2008 order which was properly the subject of the prior appeal. It is not part of what has been expressly ordered on January 23, 2009, as previously recited. Nonetheless, we see no merit in defendant's claim that plaintiff is being "rewarded for his deleterious lack of payments with further credits to his arrears and the cessation of enforcement action against him." The arrears to which plaintiff received credit were proper. One thousand dollars represented less than one-half of the $2,082.38 nonrefundable plane fare he paid for his children's tickets to return to New Jersey for the court hearing of August 5, 2008, and defendant precluded the children from using those tickets. The $3,500 was also a proper credit for plaintiff's share of part of the cost for Dr. Weistuch's services on the custody issue and was substantially less than what plaintiff had paid to the doctor.
Judge LeWinn's earlier order of May 30, 2007, holding plaintiff responsible for Dr. Weistuch's fee in reviewing documents furnished to the court and rendering the doctor's written opinion was "without prejudice." It is clear that the order of August 6, 2008, properly granted credit to plaintiff for payment of this report because of defendant's continuing refusal to comply with the orders of this State's courts. We further note that the hearing of August 5, 2008, had been adjourned on two prior occasions at defendant's request. On August 5, 2008, she responded telephonically. After being afforded an opportunity to discuss with her attorney in Germany whether she would continue to participate in the hearing telephonically, she decided not to continue, concerned that it would subject her to the jurisdiction of the courts of this State. While this action was pending, she filed a custody complaint in Germany. We held in this court's prior opinion that we had subject matter jurisdiction. Id. at 8-13. We can well understand why the court was inclined to provide plaintiff with certain credits against any child support arrearages. Defendant must comply with the prior order of this court resulting in the change of custody to plaintiff and return the children, as ordered, to New Jersey and the physical and legal custody of plaintiff.
The order of January 23, 2009, is affirmed.
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