On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1216-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
In this matrimonial matter, plaintiff Denise M. Mason appeals from a post-judgment Family Part order reducing defendant Richard G. Paulus's obligation to pay child support, which was computed using a level of income based upon limited employment while he attended a full-time nursing program, rather than the level of earnings received while employed in the information technology field.
Based on our review of the arguments presented, in light of the record and applicable law, we conclude the trial court erred in failing to make factual findings and, as necessary, conduct a plenary hearing to determine whether defendant was voluntarily underemployed and, if so, whether a higher level of income should be imputed when calculating his child support obligation. These and other errors in the court's order mandate that we reverse and remand for additional proceedings.
The parties separated in 2003 after a fifteen-year marriage. Plaintiff is the residential parent of the three unemancipated children. While the divorce was pending, the parties amicably resolved collateral issues relating to child support and equitable distribution. A comprehensive Property Settlement Agreement (PSA) was incorporated in the July 5, 2005 Final Judgment of Divorce.
Since the divorce, as required by the PSA, several modifications of defendant's child support obligation have occurred based on changes in his employment or the custodial status of the children. Prior to defendant's current application, a July 3, 2008 consent order fixing child support was in place. When that order was entered, the oldest child, who had spent the prior year residing with defendant, was attending college and returned to reside with plaintiff during the school breaks and summer.
The terms of the order included that effective November 30, 2008, defendant would pay $61 per week in support for the oldest child and $348 per week for the other two children. The amounts were calculated by the parties based upon the older child's needs and "a compromise figure reached between the parties and their respective Child Support Guidelines [CSG] calculations[.]" See R. 5:6A; Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2010). The CSG worksheet attached to the order, reports plaintiff's gross weekly income as $913 and defendant's as $3,173.
In September 2008, defendant lost his job due to a reduction in force. His salary continued pursuant to a severance agreement. He then underwent previously scheduled hip replacement surgery. Defendant continued making child support payments pursuant to the consent order. Defendant's severance benefits ended in December 2009. He then unilaterally began paying only $69 per week and moved for reductions in child support and a related life insurance obligation.
In support of his motion, defendant explained his decision to change careers and enroll in a full-time accelerated R.N. program at Drexel University. Defendant claimed his attempts at reemployment in information technology proved unsuccessful and believed he would become more marketable as a nurse. While in school, he began working nights and weekends for Virtua Hospital, providing in-patient transportation services, for $443 per week.
Plaintiff objected to defendant's request for reduction. She also filed a cross-motion for enforcement of the terms of the consent order.
The Family Part judge entered an interim order on April 9, 2009, that required the submission of additional documentation and encouraged the parties to attempt a negotiated resolution. Their efforts proved unsuccessful. The court scheduled a second hearing, held on August 26, 2009. Following oral argument, but without benefit of a plenary hearing, the judge reserved decision. The final order was entered on November 16, 2009.*fn1
The court concluded defendant's child support obligation should be modified and ordered he pay $68 per week for the younger two children from January 1, 2009 to September 1, 2009, reduced to $48 per week when the middle child commenced college. No support was ordered for either college student. In determining the level of support, the motion judge apparently accepted defendant's representation that he had commenced employment as a hospital courier earning an ...