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Gallucci v. Gallucci

July 7, 2010

MARIO GALLUCCI, PLAINTIFF-APPELLANT,
v.
TONI M. GALLUCCI, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1202-03C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 9, 2010

Before Judges Sabatino and J. N. Harris.

Plaintiff appeals from an order of August 5, 2009, which retroactively increased his monthly child support obligations through the operation of Rule 5:6B's cost of living adjustments (COLAs). After a thorough review of the record and the Family Part's findings, we affirm the entirety of the motion judge's determinations except that part which addresses the implementation of the COLAs and consequential arrearages. As to those specific issues only, we reverse and remand for recalculations.

I.

Plaintiff Mario Gallucci and defendant Toni Gallucci were married on April 20, 1991. Two children were born of the marriage, which was ultimately terminated on January 17, 2003, upon the entry of a final judgment of divorce.

The final judgment of divorce incorporated the parties' negotiated property settlement agreement (PSA), dated November 4, 2002. This PSA provided that the parties would share joint legal custody of the two children; defendant would maintain primary residential custody, while plaintiff was to enjoy parenting time on alternate weekends, Tuesday evenings, and every other major holiday.

Critical to this appeal is the inclusion of Article 6 of the PSA, which addressed child support. As specifically outlined in paragraphs 6.1, 6.3, and 6.5 of the Article, plaintiff agreed to pay defendant directly--not as is more frequently done through the Probation Division, Rule 5:7-4(b)--the sum of $1,170*fn1 per month for the support of the two children, commencing on November 1, 2002. This amount was to be "adjusted on a bi-annual basis pursuant to Rule 5:6B," which specifically provides for COLAs. The amount of child support was also agreed to be reviewed on a tri-annual basis, beginning "on or about November 1, 2005." This review was not for a COLA, but for any changes due to the potentially altered economic circumstances of the parties.

On March 17, 2009, more than six years after the judgment of divorce was entered, defendant filed a notice of motion seeking to enforce litigant's rights by compelling plaintiff to pay additional child support pursuant to the terms of the PSA-- specifically through the Probation Division by means of a wage garnishment--as she never received her three anticipated biannual COLAs as she believed were clearly required by the parties' agreement. In her motion certification, defendant claimed that she contacted plaintiff regarding the COLA issue several times but to no avail; he allegedly failed to respond to her requests to pay increased monthly child support.

Based upon her interpretation of the then applicable Consumer Price Index (CPI), defendant calculated that as of July 10, 2008, plaintiff should have been paying defendant $1,228.50 per month starting on January 1, 2004; $1,309.58 per month starting on January 1, 2006; and $1,365.89 per month starting on January 1, 2008, continuing through the commencement of the Family Part motion practice.

Plaintiff responded to the motion with his own certification, in which he claimed to have made regular and timely payments pursuant to the original PSA, at the same time rejecting claims that he acted in bad faith.

The parties continued to dispute the applicable CPI, as well as the start date for COLA incremental increases. Plaintiff believed that COLAs were to be implemented through the Probation Division only, and because defendant did not specifically request such adjustments, increases should be retroactive only back to July 10, 2008, "which is the first time she asked for an increase in child support."

Plaintiff argued that defendant most likely failed to ask for these increases in a timely fashion because she recognized that he was paying above and beyond his required support obligation, additionally contributing a greater percentage to extracurricular activities for the children,*fn2 and allegedly having the two children for 187 overnights in 2007 along with 172 overnights in 2008. Conversely, he asserted that if he sought a ...


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