November 19, 2010
KENNETH BOLDEN, PLAINTIFF-RESPONDENT,
JANELL BOLDEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1329-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 10, 2010
Before Judges Axelrad and Lihotz.
In this post-judgment matrimonial matter, defendant Janell (mother) appeals from portions of the Family Part's June 23, 2009 order entered following a hearing. We affirm in part, exercise original jurisdiction to conform the order to the record in part, and remand solely for the court's preparation of an amended order in accordance with this opinion.
We recite only the facts adduced at the June 3 and 4, 2009 hearings relevant to this appeal. The parties' 2001 property settlement agreement (PSA), incorporated into a divorce decree, provided for joint custody of their three children aged ten, eight and two, with mother as the parent of primary residence, and father obligated to pay $497 per month in child support. The PSA was silent as to income tax exemption for the children.
In June 2008, father sought a thirty-one month child support credit from November 2002 to June 2003, and from September 2003 to September 2005.*fn1 Father and his current wife both testified the children continuously resided with them during that time, with the exception of the three months in the summer of 2003, when the children returned to mother's residence for a summer program. They also acknowledged the children resided with mother after September 2005.*fn2 Father also sought entitlement to income tax exemptions for the children.*fn3
Mother sought support arrears from September 2005 through June 2008, and testified the children continuously resided with her since September 2005. Mother's attorney claimed the children only lived with father from November 2002 to January 2003, and from January 2004 to September 2005. Mother's testimony was too vague to pinpoint her position as to the dates the children resided with father. Mother testified that, pursuant to their PSA, father always had visitation with the children every other weekend from Friday through Sunday, although "sometimes" their sixteen-year old son did not go. She also acknowledged taking the dependency tax exemption from 2002 through 2005.
The judge credited the testimony of father and his current wife, and did not find credible the testimony of mother, regarding the period the children resided with father. Accordingly, the judge found father was entitled to a credit of thirty-one months of child support at $497 per month. She also found father was responsible for child support from September 2005 through the June 2008 filing date. The judge calculated father's child support obligation as of July 1, 2008 under the guidelines based on father having parenting time of 78 days pursuant to the PSA, arriving at a figure of $81 per week, excluding arrearages. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A (13) to R. 5:6A at 2439-40 (2010). The judge further ordered the children to live with father for the three weeks following the hearing while mother was completing an out-of-state work assignment, but he was not to receive a child support credit, elaborating:
[S]o the parties will not come back, there is not going to be a credit for child support. I find that that's all a part of being a parent. That you have situations like this, where father will have... to jump in and intervene.
In addition, the judge found father should receive the dependency exemptions for the children in 2010-11 because the children had lived with him for two years, yet mother claimed the tax exemption. Beginning in 2012, the parties would alternate the annual exemption.
The order, prepared by the court, provided, in pertinent part:
2. The Court finds that Plaintiff, Kenneth Bolden, maintained Primary Residential Custody of the Parties' minor children from November, 2002 until the end of August, 2005, a total of 34 months.
a. The Court finds that Plaintiff should receive a credit on his child support for a total of 34 months at the rate of $497.00 per month.
i. Plaintiff is entitled to a child support credit in the amount of $16,898.00.
3. Defendant's Motion for child support arrears is hereby GRANTED.
a. The Court finds that Defendant, Janell Bolden, maintained Primary Residential Custody of the Parties' minor children from September, 2005 until present. However, the first arrears calculation will be from September, 2005 to June, 2008, the filing month of the Parties' initial pleadings.
b. Plaintiff's Motion for a child support credit for the months of February 2008 to June 2008 is hereby DENIED.
c. Defendant was owed child support arrears, in the amount of $497.00 per month, for the months of September 2005 to June, 2008, a total of 34 months.
i. Defendant was owed $16,898.00 in child support arrears for that 34 month period.
l. However, this amount owed is canceled out by the credit that Plaintiff is entitled.
4. In conclusion, neither Party is owed any child support monies from the time period of November, 2002 to June, 2008.
5. Defendant's Motion to enforce child support payments is hereby GRANTED, effective from July l, 2008.
b. Per the New Jersey Child Support Guidelines, Plaintiff shall pay $8l.00 per week in satisfaction of his child support obligation for [the three children] and $20 per week towards any arrears, for a total of $l0l.00 per month (emphasis added).*fn4
c. The following numbers were utilized in the Guideline calculation:
1. Credited overnights [to plaintiff] - 78 per year
e. In accordance with the Court's Preliminary Order dated June 5, 2009, Plaintiff's child support account shall be credited $250.00, representing time that Plaintiff was Ordered to care for the children on a temporary basis.
8. With regard to the federal income tax exemptions of the children, the Court Orders as follows:
a. Plaintiff shall be entitled to the tax exemptions in 2010 and 2011.
b. The Parties shall then alternate the tax exemptions, beginning with Defendant in 2012.
On appeal, mother argues the trial court erred in: (1) allowing father a child support credit for three months, June through August 2003, when the children undisputedly resided with her; (2) using a set number of overnights with father (78) to calculate child support from July l, 2008, when all three children did not exercise regular and consistent overnight parenting time with father; (3) awarding father a $250 credit for temporary child care directly contradicting the court's rulings and reasons set forth on the record; and (4) awarding father the tax dependency exemption for 2010 and 201l, and then alternating it annually between the parties.
It is clear from the record father only sought a child support credit for the thirty-one months the children continuously resided with him, from November 2002 through May 2003, and from September 2003 through the end of August 2005. It is undisputed the children did not reside with him for three months during the summer of 2003 (June, July and August). The judge made credibility findings in father's favor that the children consistently resided with him during the time he proffered and thus found he was entitled to a thirty-one month credit on his child support obligation. The transcript also reflects the court's finding that mother was owed thirty-four months of child support from September 2005 through June 2008, totaling $16,898. Paragraphs 2(a) and 3(c)(l) of the order are inconsistent with the court's findings, because the provisions do not exclude the three summer months the children resided with mother, incorrectly affording father a thirty-four month credit and offsetting that amount against the thirty-four month support obligation due mother. In the interests of judicial economy and to avoid unnecessary expense to the parties, we exercise original jurisdiction, R. 2:10-5. We determine from a review of the transcript that the order does not accurately reflect the judge's ruling on the support credit and arrearage issues. We thus direct the judge on remand to correct this paragraph to reflect a thirty-one month child support credit to father at $497 per month, totaling $15,407, resulting in a net amount of child support due mother of $1491 through June 2008, the date of filing of the motions.*fn5
It appears a similar inaccurate memorialization occurred with regard to the $250 credit for the temporary period following the hearing in which father was ordered to care for the children. We assume the figure was based loosely on father's recalculated child support obligation of $8l per week for three weeks. In her ruling from the bench, the judge expressly denied father a credit for that period, explaining he had to "jump in and intervene" as part of his parental responsibilities. Paragraph 5(e) of the order, however, reflects the direct opposite. Although it references "the Court's Preliminary Order dated June 5, 2009," no such order was contained in mother's appendix and there is no other language in the June 23, 2009 order that would suggest there had a been a prior order. There is also nothing in the record to indicate the judge changed her ruling on this point the day after the hearing concluded. For the reasons stated above, we exercise original jurisdiction and direct the judge on remand to correct this paragraph to reflect that father's request for the $250 credit was denied.
We turn now to mother's challenge to the judge's finding that father was entitled to seventy-eight days of credited parenting overnights in calculating his child support obligation from July l, 2008. The figure was based on the overnight parenting schedule contained in the PSA. The record is devoid of specific detail to support mother's generalized assertion that two of the children had not exercised "regular and consistent overnight parenting time" with father in accordance with the PSA. We, therefore, discern no abuse of discretion by the judge in this ruling, which is consistent with the "Considerations in Use of Child Support Guidelines." See Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 2439-40; see also Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (holding that "[a]n award of support is within the discretion of the trial court [and] will not be disturbed unless it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice'" (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976))).
We also discern no abuse of discretion by the judge in her ruling regarding the dependency exemptions. The Family Part has "the power to exercise authority to effectively allocate exemptions through use of its equitable power." Gwodz v. Gwodz, 234 N.J. Super. 56, 62 (App. Div. l989). The parties' PSA was silent on this issue. The fact mother apparently unilaterally took the exemptions since the parties' divorce does not render her entitled to continue doing so. Recognizing mother took the exemptions for the extended period while the children resided with and were totally supported by father, the judge appropriately provided father some relief by permitting him to take the exemptions for the two subsequent years. The judge also acted equitably in thereafter alternating the exemptions between the parties.
Affirmed as to the overnight credits and tax dependency exemption. Remanded for preparation of an amended order consistent with this opinion, to be completed within thirty days.*fn6 We do not retain jurisdiction.