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Szabo v. Szabo


April 30, 2010


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

Per curiam.


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 a restraining order that he had against her and that he was not called to take custody of the parties' daughter on that occasion.

On the return date of his motion, January 9, 2009, defendant did not appear; plaintiff was present.

The judge addressed defendant's overnight parenting time issue as follows:

He contends that since he has Friday to Sunday he should have three separate days and that should count as three days. That is not accurate. He has Friday to Saturday and Saturday to Sunday. That is two days.

It does not count as three separate days.... [H]is computation is not accurate. Friday to Saturday and Saturday to Sunday is two overnights as I compute it.... You don't get credit for three separate days if you have Friday after school to Sunday at 5 or 6 or 7:00.

The judge denied defendant's request for entry of a judgment against plaintiff for the full balance of the alimony overpayments, stating: "As to the alimony that was provided for and taken care of in the order of June 15th '07. It stopped. The credits were appropriately given and... he's only obligated to pay $170 out of the [$]187 because the $17 is being taken from the overpayment."

The judge did not address defendant's requests regarding his "right of first refusal" and make-up parenting time on the record. However, in his order of January 9, 2009, the judge denied "defendant's application for make[-]up parenting days from 2008...."

We turn first to defendant's contention that the basic child support amount entered on the child support guidelines worksheet appended to the June 15, 2007 order is erroneous. Defendant is correct that the "schedule of child support awards" contained in the child support guidelines lists $285 as the basic child support amount where, as here, the parties' combined net weekly income is $1603. Child Support Guidelines, Pressler Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2460 (2010). However, the guidelines also mandate a 14.6 percent increase in the basic child support amount for children over the age of twelve. Pressler, supra, Appendix IX-A to R. 5:6A at 2401. The child support amounts listed in Appendix IX-F do not reflect that adjustment. A 14.6 percent increase in the $285 basic child support amount results in an adjusted weekly amount of $327.

Child support was first established by the order of February 2, 2007, at which time the parties' daughter was twelve years old. The guidelines provide that "if the initial child support order is entered when a child is 12 years of age or older, that order and all subsequent orders shall be adjusted upward by 14.6 [percent]." Ibid. The guidelines provide further that when that adjustment is made, "it should be noted in the guidelines worksheet or in the support order." Ibid. We note that neither worksheet contains such a notation. Nonetheless, the fact remains that the resulting child support award was properly adjusted according to this guidelines provision.

Regarding defendant's overnight parenting time, we concur with the trial judge that he is not entitled to three overnights per weekend. Defendant premises this claim upon language which appears in the guidelines introduction, captioned "Considerations in Use of Child Support Guidelines," defining "overnight" as "the majority of a 24-hour day (i.e., more than 12 hours)." Pressler, supra, Appendix IX-A to R. 5:6A at 2393.

Defendant receives the full benefit of his overnight parenting time by virtue of the fact that Friday night is credited as an overnight notwithstanding that his parenting time commences at 5:00 p.m. on Friday; his weekend parenting time ends at 8:00 p.m. on Sunday. Therefore, defendant's weekend parenting time consists of fifty-one hours (two twenty-four-hour periods from 5:00 p.m. Friday to 5:00 p.m. Sunday, plus three additional hours on Sunday). Since defendant does not have parenting time for "the majority" of a third "24-hour day[,]" ibid., crediting him with two overnights per weekend is proper and conforms to the guidelines.

We turn to defendant's make-up parenting time issues. Defendant filed his motion on December 8, 2008. The allegedly missed parenting time addressed in that motion occurred on dates between January and November, 2007. Defendant submitted no evidence of missed parenting time in 2008.

Defendant's parenting time schedule is set forth in the PSA and in the order of February 2, 2007. When defendant filed his prior motion to terminate his alimony obligation to plaintiff, it does not appear that he raised any complaints about parenting time as evidenced by the order of June 15, 2007, which makes no mention of parenting time issues. Since defendant did not appear on the return date of his motion which is the subject of this appeal, the record is devoid of any meaningful evidence to support this claim.

Plaintiff is free to file a new motion to enforce his parenting time rights, accompanied by appropriate supporting documentation. Based upon this record, however, we are unable to determine with any degree of certainty the merits of his claims.

Regarding defendant's request to enter a judgment against plaintiff for approximately $7000 in alimony overpayments, we find no reason to disturb the trial judge's decision that the reduction in defendant's weekly child support payments provides adequate relief. Defendant's claim that his child support obligation will terminate before the full amount is repaid is speculative. In the event that should occur, defendant has the right to file an appropriate motion at such time to secure payment of any outstanding balance.


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