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Shubrick v. Phillips

August 27, 2010

YOLANDA SHUBRICK, PLAINTIFF-APPELLANT,
v.
THURMAN E. PHILLIPS, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-5244-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2010

Before Judges Carchman and Parrillo.

Plaintiff Yolanda Shubrick appeals from a May 27, 2009 order of the Family Part requiring plaintiff to pay child support of $25 per week together with arrearages of $5 per week, as well as an August 11, 2008 order awarding custody of plaintiff's then sixteen year-old daughter*fn1 to defendant Thurman Phillips, the child's father.*fn2 We affirm the denial of a change in custody and reverse the award of child support.

These are the relevant facts. As we have noted, the parties are the parents of a daughter, sixteen years of age at the time of the original custody order. By order of August 11, 2008, defendant was awarded primary residential custody of the child and plaintiff was granted visitation from 12:00 noon to 6:00 p.m. every other Saturday and Sunday.

Although the record is sparse as to the factual background of the original custody award, what prompted this application was plaintiff's belief that she was entitled to more time with her daughter. Specifically, between March 23 and April 30, 2009, the daughter packed all of her clothes and went to plaintiff's house. This conduct occurred on three separate occasions. Plaintiff contacted the daughter's law guardian and attempted to return her to defendant's house each time the daughter appeared at times inconsistent with scheduled visitation. On May 1 and May 8, 2009, the daughter was locked out of defendant's house and had to wait on the porch until after 8:30 p.m. for defendant to return home.

In addition, according to plaintiff, the child was obligated to attend counseling, but plaintiff claimed that defendant did not make the proper arrangements; moreover, plaintiff alleged that defendant was not feeding the child and treated her worse than his other two children who lived with him.

Defendant contended that plaintiff did not comply with the custody arrangements. He alleged that plaintiff would allow the daughter to stay with her beyond her visitation time, not answer the phone when defendant called and became belligerent when she spoke to defendant. "On two or three different occasions," plaintiff would not relinquish custody of the child until defendant brought police with him to retrieve her. Plaintiff cursed and yelled at a detective when he called her to insist that she obey the custody arrangements. On another occasion when defendant went to pick up the child, plaintiff's boyfriend threatened to shoot defendant. Also plaintiff did not prepare the child to leave on time on plaintiff's scheduled visitation days. Also, she missed school on two days and stayed at plaintiff's house. Defendant explained that the child did not have house keys because she had lost two sets previously, and because he did not want her missing school and staying at his house. In response to plaintiff's allegation that the child was not attending counseling, defendant claimed that the child was receiving counseling from a licensed therapist-mentor three times per week.

In urging that she should spend more time with plaintiff, the child allegedly wrote a letter to the law guardian and the motion judge requesting more time with her mother. Defendant challenged the bona fides of the letter claiming that the child stated that she told him that she did not write the letter. The judge agreed, concluding that the writing style was different from the child's speaking style.

The judge determined that there was no basis to alter the custody or visitation arrangement and denied plaintiff's application for that specific relief.

Relevant to the calculation of child support, the record shows plaintiff was unemployed, on welfare and received food stamps. In addition, she received child support for her two other children and had no other source of income. The judge imputed minimum wage income to plaintiff of $286 per week. Based on the New Jersey Child Support Guidelines (the Guidelines), Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2010), calculation, plaintiff owed $0 in child support, but the judge ordered plaintiff to pay $25 per month in child support. Her sole reason for deviating from the Guidelines was because "money is needed to raise a child[.]" This appeal followed.

On appeal, plaintiff urges that the judge erred in awarding child support to defendant because she failed to make factual findings to support her decision to deviate from the Guidelines and because the judge did not make factual findings to support the decision to impute income to plaintiff. We agree.

"A court may deviate from the Guidelines only when good cause demonstrates that application of the Guidelines would be inappropriate." Lozner v. Lozner, 388 N.J. Super. 471, 480 (App. Div. 2006). We will reverse a motion judge's deviation from the Guidelines if we find that the judge abused her ...


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