On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1952-98A.
New Jersey Court of Appeals a0980_09.pdf
NOT FOR PUBLICATION WITHOUT
THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010
Before Judges Ashrafi and Nugent.
Plaintiff Kenneth Mullarney appeals from the Family Part's order of September 25, 2009, pertaining to physical custody of the parties' then fifteen-year-old daughter and payment of child support. We affirm in part and reverse in part.
The parties were married in 1993. Their only child was born in 1994. They divorced in 1999. After the divorce, their daughter lived primarily with Ms. Williams and spent alternate weekends with Mr. Mullarney. The judgment of divorce required that Mr. Mullarney pay child support of $280 per week, which consisted of $112 in child care expenses of Ms. Williams and $168 in general support.
In the spring of 2009, the parties communicated by email and telephone about making a change in their daughter's residential status in an effort to address difficulties she was experiencing with her school work. They agreed to a trial period for their daughter to live with Mr. Mullarney and his wife. On May 5, 2009, the daughter moved to Mr. Mullarney's residence. Child support, however, continued to be deducted from Mr. Mullarney's paychecks at the rate of $436 every two weeks.*fn1
The parties continued to communicate by email about the change in residential custody and the payment of child support. In July 2009, they agreed by their emails that their daughter would continue to live with Mr. Mullarney for the coming school year and attend the public high school in his municipality.
They appear to have agreed to consider her progress and her personal preferences at the end of the school year and determine at that time whether to continue with Mr. Mullarney as the parent of primary residence or return their daughter to Ms. Williams's residence. Ms. Williams expressly stated that she was not agreeing to a permanent change of custody.
In her emails, Ms. Williams also acknowledged that she was not entitled to receive child support while the daughter was living with Mr. Mullarney, and that she would reimburse to Mr. Mullarney the payments she was receiving through the probation department beginning on August 1, 2009. Ms. Williams also acknowledged that she should pay child support to Mr. Mullarney. The parties were generally cooperative and seeking to aid their daughter in overcoming her problems in school and otherwise.
Mr. Mullarney consulted an attorney. In July 2009, the attorney sent a proposed consent order to Ms. Williams to effectuate the change in residential custody and child support. Ms. Williams found the order objectionable and did not sign it. She also did not reimburse any child support payments to Mr. Mullarney. ...