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Smith v. Smith

July 13, 2010

DEBORAH SMITH, PLAINTIFF-RESPONDENT,
v.
DEAN SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1678-05C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2010

Before Judges Lisa, Baxter and Alvarez.

Defendant Dean Smith appeals the June 5, 2009 order awarding child support and other financial relief, including counsel fees, to plaintiff Deborah Smith. For the reasons that follow, we remand the matter for a plenary hearing as to child support, reverse as to the effective date of the child support order, and affirm the award of counsel fees.

Plaintiff and defendant, who signed a property settlement agreement (PSA) and divorced on December 21, 2005, have two children, ages twelve and nine. Their divorce judgment incorporated the PSA.

The PSA designated plaintiff as the primary residential parent, although both parents shared legal custody of the children. The PSA called for defendant to pay $10,000 per year in child support, broken down into monthly installments of $833.33, beginning on the effective date of the PSA. Additionally, the PSA obligated defendant to pay seventy-five percent of the children's extracurricular expenses. Defendant was to provide the children's health insurance except if plaintiff was able to secure coverage either incidental to employment or at a lower cost than defendant's policy. Defendant agreed to pay seventy-five percent of unreimbursed medical expenses; plaintiff to pay the balance. Plaintiff was allocated both children as tax exemptions in 2005 and until a new child support amount was either agreed upon or was ordered.

The PSA also required defendant to pay plaintiff $54,250 per year term alimony in installments of $4520.87 on the first of each month. The final alimony payment was due on October 1, 2008.

The parties agreed that child support would be renegotiated after the thirty-six-month term of alimony ended; they were to exchange case information statements (CIS) four months prior to the end of the alimony term. The PSA specifically stated that "the allocation between alimony and child support... was selected, in part, for tax considerations." It was agreed that "[n]o payment or installment of this order for child support, or those portions that are allocated for child support, can be retroactively modified... except for the period during which the party seeking relief has pending an application for modification...." If either party defaulted "in the performance of any provision[]" of the PSA and the default resulted in the initiation of enforcement proceedings, the defaulting party would be responsible for "reasonable [c]court costs and attorney's fees...."

The motion judge conducted oral argument on plaintiff's application for child support and other relief on June 5, 2009, and entered the order from which this appeal is taken that same day. Defendant was ordered to pay $379 weekly based on his representation that he made $4181*fn1 per week, and plaintiff's representation that she earned approximately $2000 per month from her home-operated business. Because the judge credited defendant's assertion that plaintiff had an extensive prior employment history, he imputed $40,000 per year income to her based on her earnings potential, or the approximate $769 weekly figure he used in calculating support. He also imputed $25,000 in additional income to defendant, over and above his salary, because of certain benefits available through his businesses, including auto insurance, medical coverage, and income that he defers to his mother.

The motion judge made the child support order retroactive to November 1, 2008, because defendant's alimony obligations ended as of October 2008 and defendant paid nothing at all, neither child support nor alimony, after November 1, 2008. He further determined that commencing in 2009, each party was entitled to claim one child as a tax exemption. Once the older child became emancipated, the motion judge directed that the parties would alternate years claiming the younger child as an exemption. Because of the significant difference between defendant's annual income of approximately $192,400 per year, exclusive of "perks," and plaintiff's imputed income of $40,000 per year, the motion judge awarded plaintiff $2000 for counsel fees and $30 in court costs.

Defendant raises the following points on appeal:

POINT I

THE TRIAL COURT ERRED IN IMPUTING INCOME OF ...


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