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Szabo v. Szabo

April 30, 2010

NANCY SZABO, PLAINTIFF-RESPONDENT,
v.
JAMES SZABO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1008-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2009

Before Judges Messano and LeWinn.

In this post-judgment matrimonial matter, defendant appeals from two provisions of the January 9, 2009 order of the Family Part that denied his applications (1) "to modify the Child Support Guidelines calculated" in a prior order of June 13, 2007; and (2) "for make[-]up parenting days from 2008...." He also appeals from the trial judge's denial of his request to enter a judgment against plaintiff for "illegally collected alimony" after she remarried.*fn1 We affirm.

The parties were divorced by final judgment entered on October 24, 2006. They are the parents of an autistic and developmentally delayed daughter who is now fifteen years old. An order entered on February 2, 2007, set defendant's alimony obligation to plaintiff at $315 per week and his child support obligation at $123 per week.

Plaintiff remarried on February 27, 2007, and pursuant to a motion brought by defendant, her alimony was terminated effective as of that date in an order entered on June 15, 2007. Defendant's child support obligation was recalculated to reflect the termination of his alimony; the new amount was $187 per week. The order provided that defendant's overpayments of alimony would be "repaid" by reducing his weekly child support obligation to $170 "until the overpayments are satisfied."

Regarding the parenting time issue, the Property Settlement Agreement (PSA) appended to the parties' divorce judgment provided for defendant to have parenting time with his daughter "every other weekend from Friday at 5:00 p.m. to Sunday at 8:00 p.m. and two overnights per week." The PSA further provided that "[i]f for any reason [defendant] cannot have [the daughter] for his overnight, then that overnight will be made up an extra night as soon as is reasonable."

It appears the parties have a history of difficulty with parenting time issues. The February 2, 2007 order required the parties "to attend the High Conflict Choices for Children Program" and to attend "follow up mediation or family therapy." That order further provided that there were to be "no derogatory remarks made to the child or in the presence of the child regarding the other parent; this includes remarks made by a party's significant other."

On December 8, 2008, defendant filed a motion seeking to reduce his weekly child support obligation from $187 to $151 per week "in accordance with child support guidelines"; to enter judgment against plaintiff in the amount of $7123 representing the balance due on the alimony he had overpaid "to be taken from the proceeds of [his] 401k that she will be receiving"; enforcing his "right of first refusal" when plaintiff was unavailable to care for their daughter; and to "[g]rant 8 makeup days to [him]."

Respecting child support, defendant contended that because he has parenting time for the "majority of [the] 24-hour day" on Sunday, that "Sunday should be considered an overnight."

Defendant further contended that the basic child support amount should be $285 and not $327 as set forth on the worksheet appended to the June 15, 2007 order.

Defendant's certification did not address parenting time issues; however, he appended a page captioned "days which [plaintiff] refused to give custody to [defendant]," setting forth various dates between January 1 and July 26, 2007. He also appended three police incident reports from June, July and November 2007, in which he filed complaints against plaintiff for interference with custody. Defendant submitted an unsworn statement asserting that on August 14, 2008, plaintiff had been arrested for violating ...


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