On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1643-02A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Defendant Vincent Giunta appeals from a May 26, 2009 Family Part order requiring him to pay $149 per week in child support and awarding plaintiff Lisbeth A. Giunta other financial relief. Plaintiff cross-appeals as to the court's denial of retroactive child support, her request for attorney's fees, and other aspects of the order. For the reasons that follow, we reverse in part and affirm in part.
The parties married on August 24, 1991, and had one child, a daughter, born in 1996. They divorced on November 12, 2002, and incorporated their October 22, 2002 property settlement agreement (PSA) into the final judgment.
The PSA granted defendant "reasonable and liberal rights of visitation," including two consecutive overnights on alternating weekends, one overnight the week following weekend visitation, as well as an evening dinner visitation during the week. The agreement further provided that any disagreements about visitation were to be addressed through Monmouth County Family Mediation "prior to commencing any court action."
At present, the parties are essentially following the schedule contained in the PSA. Defendant, who maintains a separate bedroom, furniture, and clothing for the child at his home, spends alternating weekends with her from 6:30 a.m. on Friday through 8:00 p.m. Sunday. He also cares for the daughter on alternating Tuesdays from 6:30 a.m. to 8:00 p.m. and alternating Wednesdays from 6:30 a.m. to Thursday at 8:00 p.m.
On the visitation days that commence at 6:30 a.m., defendant picks up the child from plaintiff's home, takes her to his residence and feeds her breakfast. She then showers and dresses for school at his home. He returns her to the bus stop located in her mother's neighborhood.
The PSA provided that plaintiff would be credited $20,020 towards equitable distribution by virtue of her waiver of child support for a term of five years. The agreement states: "This represents the Child Support Guideline payment of $77.00 per week under [s]hared [p]arenting for a period of five years commencing September 13, 2002." Plaintiff was allocated the child as a dependent on her federal and state income tax returns during that five-year term. Thereafter, the parties were to alternate the dependent deduction, defendant being allotted "the even-numbered years commencing [with] 2008" and plaintiff taking "the odd-numbered years." The PSA further provided that each parent was "responsible for all costs of daycare, baby-sitting and school" while the child was in his or her physical custody. The PSA also memorialized the parties' agreement as to essentially every other aspect of the child's care, including medical expenses, health insurance, and education.
The parties' financial information is unclear. Plaintiff is a cardiology nurse and defendant is a respiratory therapist; both work at local private hospitals. On plaintiff's 2007 tax return, she declared an adjusted gross income of $77,439. According to plaintiff's February 2009 case information statement (CIS), her gross income for 2008 was $93,766 and her net income was $73,853. She said her average gross weekly income for 2009 was $1703 and her average net weekly income was $1097. Defendant's earnings, combined with those of his new wife, totaled $121,436 as reported on their joint 2008 tax return.*fn1 On his May 2009 CIS, defendant claimed that his gross earnings for 2008 were $65,443 and that his net income was $57,883. He stated that his average net weekly income for 2009 was $999, but that his gross income for the first twelve weeks of 2009 was $18,107. According to defendant's pay stubs, he netted $1626.58 from March 21 to March 27, 2009, and $1604.48 from February 21 to February 27, 2009. Some of these discrepancies in earnings may be explained by the nature of the parties' shift assignments and the fluctuating rate of compensation for holidays and overtime pay.
Defendant contended that he cares for the child 156 overnights per year, more than fifty percent of a twenty-four-hour period for six out of twelve days. He therefore argues that the shared parenting guidelines, employed when the parties initially agreed upon a figure for child support used to reduce plaintiff's equitable distribution payment to defendant, should continue to be used. Plaintiff, on the other hand, contends that the sole parenting guidelines should be applied and that the days on which the child remains with her father from 6:30 a.m. to 8:00 p.m. should not be counted as an overnight.
The child attends a summer camp school for one month at a cost of approximately $2200.*fn2 Plaintiff's position is that since both parents use the summer camp as daycare, defendant should have to bear a pro rata portion of the expense pursuant to the PSA.
The Family Court's May 26, 2009 order set weekly child support at $149 effective March 12, 2009. Arrears totaled $1490 and were calculated retroactively as of May 21, 2009. Payments towards that sum were to be made at the rate of an additional $50 per week. The court did not order defendant to pay retroactive child support between September 2007 and the date of the filing of the motion, as plaintiff requested, despite the fact he paid no additional child support after the equitable distribution credit was consumed.
The court denied plaintiff's request that she be allocated the tax exemption for the minor child. The motion judge also denied plaintiff's request that defendant be ordered to pay a portion of the summer camp because, in his view, the decision to enroll the child had been made unilaterally by plaintiff and the summer program would not allow for the daughter to be shuttled between her parents while registered. Therefore, the judge reasoned, defendant should not be burdened with the expense. Plaintiff was denied counsel fees.
The court also refused to order the parties to engage in mediation as to parenting issues. Defendant sought to compel mediation because he was concerned about the impact that the very early start to visitation is having on the parties' child. It is not clear from the record if defendant attempted to engage plaintiff in mediation prior to ...