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K.M.T v. J.L.T

December 2, 2010

K.M.T., PLAINTIFF-RESPONDENT,
v.
J.L.T., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-89-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

K.M.T. has not filed a brief.

In this case arising from post-divorce litigation involving the parties' three children, the father, J.L.T., appeals from several orders of the Family Part denying without prejudice his motion for change of custody of the children, retroactively increasing his child support obligation, and requiring that he reimburse the mother, K.M.T., for two items of expense. We affirm in part and reverse in part. We remand to the Family Part to hold a plenary hearing, if father is still pursuing his motion for change of custody, and to reduce by $375 his obligation to reimburse mother for expenses of the children.*fn1

I.

The parties were married in 1992. They were divorced in 2001. Their children are now eighteen, fifteen, and fourteen years old. They agreed to joint custody and equal parenting time through a marital settlement agreement incorporated into their judgment of divorce. The parties have lived in the same municipality since their divorce, and the children were to spend fifty percent of the time in each parent's home.

After their divorce, the parents have returned to court frequently to litigate their disputes. From 2002 until 2009, the Family Part issued at least ten orders addressing custody and financial disputes involving the children, and we have twice previously issued short unpublished opinions on father's appeals from child support orders. After the second of those appeals, father was ordered to pay mother $119 per week for child support.

In May 2006, the parties agreed to a change in residential custody of the oldest child. She began to live only in mother's home, although there was one period of about two months when she stayed at father's house. The two younger children continued to split time equally between the two homes.

In the summer of 2006, mother filed a motion to adjust child support because of the change in the residential status of the oldest child. In calculating child support, the Family Part used only sole parenting worksheets. See Child Support Guidelines, Pressler Current N.J. Court Rules, Appendix IX-C to Rule 5:6A (2006). In one worksheet for the oldest child, the court designated mother as the custodial parent and determined that father's child support obligation for the oldest child would be $217 per week. In a second worksheet for the other two children, the court designated father as the custodial parent and determined that mother's child support obligation would be $70 per week. Subtracting mother's obligation from father's, the court ordered father to pay $147 per week to mother by order dated August 23, 2006.

Mother moved for reconsideration, arguing that the court erred in using sole parenting worksheets. She argued that the proper method of calculating child support was to designate each parent as the parent of primary residence for the two younger children, using two separate shared parenting worksheets and then taking the average of the two results. That number would then be added to the child support figure for the oldest child. By order dated October 3, 2006, the Family Part denied mother's motion for reconsideration.

In 2007, father moved for a change of custody of the children and mother cross-moved again for adjustment of the child support calculation. Each party also moved for other relief involving the children and the responsibilities of each parent for their expenses. By order dated October 4, 2007, the Family Part denied father's motion for a change of custody and also denied mother's motion to adjust child support, stating that the latter denial was "with prejudice."

In September 2008, mother was arrested and charged with driving while intoxicated (DWI). According to father, she crashed into two parked cars in a bank parking lot at 8:30 a.m., and the police found in her possession an empty prescription bottle for a narcotic painkiller. Father moved for evaluation of mother as a risk to the children's safety and for a change of custody, but his motion was denied without prejudice by order dated October 24, 2008. The court stated that father's motion should be considered on its merits after disposition of the DWI charge in municipal court.

In January 2009, mother pleaded guilty to the DWI charge. In early April 2009, she was hospitalized after one of the children found her unconscious on the floor in her house. Father immediately renewed his motion for a change of custody. He alleged that mother had a history of personal problems and that the recent incidents were evidence that the children were at risk while in mother's care. The Division of Youth and Family Services (DYFS) also initiated an investigation of potential risk to the children. Mother opposed the motion for change of custody and cross-moved yet again for adjustment of the child support calculation. Both parties also made numerous other claims for reimbursement of expenses of the children.

On the return date of the motions, May 14, 2009, the court made rulings from the bench on the multitude of issues presented. The court denied without prejudice father's motion for change of custody, stating that it had received and reviewed files from DYFS concerning mother's April 2009 illness. The court stated that the information it had received was insufficient to order a change in custody, and it would await completion of the DYFS review, since DYFS was still seeking mother's hospital records.

As to the DWI conviction, the court commented that, although mother had pleaded guilty to the charge, "people sometimes enter pleas for reasons that are not necessarily related to their agreement that they actually did it." The court acknowledged that a hearing was probably necessary to resolve the motion for change of custody. The court said it would set a discovery schedule in its order disposing of the motions. It also said it would decide what doctors' reports and hospital records could be disclosed to father once they were received by DYFS and provided to the court for in camera review.

As to recalculation of child support, mother had failed to support her request with a current case information statement, as required by Rule 5:5-4(a). The court said it would allow her to correct that deficiency and to re-apply for modification of child support.

At the motion hearing on May 14, 2009, the court devoted substantial time to ruling upon many individual items of reimbursement for the ...


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