On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-95-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
In this post-judgment matrimonial matter, plaintiff appeals from various provisions of the July 1, 2008 order of the Family Part related to the proper calculation of defendant's child support obligation for the parties' children, fraternal twins who are presently nineteen years old; she further challenges the provisions denying her request to prevent defendant from seeking reimbursements from a medical fund, and limiting her counsel fee award to $1000. For the reasons that follow, we reverse and remand for further proceedings on plaintiff's request for a retroactive increase in child support based upon her claim that defendant has not exercised overnight parenting time, and to recalculate child support to include the 14.6% adjustment based on the ages of the children; we affirm on the remaining issues.
We briefly summarize the pertinent factual background. The parties were married in 1989; the twins were born in July 1991. The parties were divorced by a final judgment entered on October 15, 2004, which incorporated their property settlement agreement (PSA). The PSA provided that defendant's child support obligation was $195 per week "so long as COBRA coverage lasts. When [plaintiff] is no longer paying this coverage, [defendant] shall pay $132/wk per the Guidelines." On October 17, 2007, an order was entered setting defendant's child support obligation at $132 per week, pursuant to the PSA.
On May 19, 2008, plaintiff filed a motion seeking the following relief relevant to this decision: (1) to bar defendant from applying to a medical fund for reimbursement of the children's medical expenses; (2) for a retroactive increase in child support based upon defendant's failure to exercise overnight parenting time, and to add a cost of living adjustment (COLA); (3) to impute income to defendant based upon his failure to provide accurate income information; (4) to compel defendant to pay child support arrears; and (5) for counsel fees and costs. Plaintiff requested oral argument on her motion.
Regarding child support, plaintiff certified that the obligation established in the PSA was based upon defendant exercising overnight parenting time with the twins; plaintiff asserted that "[s]hortly after" the divorce, defendant stopped exercising "overnight visitation, or any other parenting time" with the children, and "[d]espite his failure to exercise overnight visitation,... has refused to modify the existing support order to eliminate his overnight visitation credit." Plaintiff therefore sought both to eliminate his twenty-two dollar credit for parenting time prospectively, and to be reimbursed the amount of $4224, representing the amount of the credit multiplied by the 192 weeks in which, she asserted, defendant had exercised no parenting time.
Regarding the COLA, plaintiff asserted that in August 2006, defendant received notice from the Morris County Probation Department that his support obligation would be increased by a 7.9% COLA; defendant communicated with the Probation Department without notice to plaintiff, and purportedly presented information regarding his earnings that ultimately resulted in Probation's denial of the COLA.
Plaintiff asserted further that the judge should impute $110,000 annual income to defendant for child support purposes, stating that defendant "is a construction project manager who has consistently lied to and defrauded the [c]court and [P]robation as to the quantum of his earnings." Plaintiff attached defendant's 2006 Form 1099, reflecting gross business income of $87,500, which she asserted was "25% more income than the $70,000 that was attributed to him in the child support guideline calculations." Plaintiff also appended two residential loan applications, one dated November 19, 2004 and signed by defendant indicating gross annual income of $96,000, and a second unsigned and undated application setting forth defendant's gross annual income at $126,000.
Plaintiff provided calculations showing that defendant's then-current child support and alimony arrears amounted to $2,183.34; she requested immediate payment of that amount. Plaintiff did not address the medical fund reimbursement issue in her certification.
In opposition, defendant certified that plaintiff "refused to communicate, has totally blocked [his] visitation and communications to [his] children, and consistently violated [his] parental rights." Defendant claimed that he was "not delinquent on [his] support," claiming further that the Probation Department informed him that he had "[never] been delinquent...." Defendant further asserted that he has "repeatedly provided [his] financial information and tax returns," including "1099's, which show the gross income for [his] business prior to [his] business and healthcare expenses...."
Defendant appended voluminous documents to his certification, including correspondence between the parties purporting to support his claims regarding parenting time. He also submitted a notice from the Probation Department, dated October 13, 2006, stating, "[b]ased upon the information provided, no [COLA] will be made at this time."
Plaintiff filed a reply certification, claiming that the Probation Department was "simply erroneous" in its arrears calculations. Regarding parenting time, plaintiff claimed that "[d]efendant currently has no visitation because the [c]court terminated his visitation rights and he refused to attend reunification therapy as ...