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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...