On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1758-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Wefing, Baxter and Koblitz.
In this post-judgment matrimonial dispute, defendant Gregory Bitsko moved to reduce his alimony obligation. His ex-wife responded by asking for increased alimony and reimbursement for payments she made for their children's medical care and daycare over the past ten years pursuant to an order requiring them to divide such costs. The trial court declined to modify alimony, but on the basis of the papers submitted, ordered defendant to reimburse plaintiff $10,488 for the children's expenses. Defendant appealed only the portion of the order requiring him to reimburse plaintiff for the children's expenses and plaintiff cross-appealed only the denial of her request for defendant to pay her counsel fees. After considering the contentions of the parties in light of our review of the facts and the law, we reverse and remand for a plenary hearing.
The parties were married in 1985 and divorced in 2000 after having three children, B.B., E.B. and M.B. The judgment of divorce (JOD) called for the parties to share legal custody of the children, with plaintiff having primary physical custody. The JOD required defendant to make weekly payments of $375 in alimony and $250 in child support. These amounts were based on plaintiff being able to earn $15,000 and defendant actually earning $85,000 annually. The JOD also called for the unreimbursed medical and health-related expenses of the children to be split evenly.
In 2005, plaintiff moved to modify child support, requesting an increase to cover daycare and summer camp for M.B. and asking that medical bills, including orthodontia, be split between the parties with plaintiff paying thirty percent and defendant seventy percent. On August 11, 2005, the trial court entered an order requiring defendant to pay for the children's daycare and medical expenses. The order reads as follows:
1. Defendant's child support obligation be and is hereby increased to $342.00 per week effective 9/1/05, which is to be payable through Probation, wage garnished, with a two week bench warrant provision.
1A. Upon verification that B.B. commenced residing with defendant, child support for plaintiff shall be reduced to $266 per week. In addition, the allocation of unreimbursed expenses shall readjust to 70% defendant and 30% plaintiff. This computation assumes work related child care remains at $195 per month.
2. Defendant is to pay sixty-five percent (65%) of any and all work related daycare expenses within 60 days of receipt of said bill.* * Covers only day care costs preceding the 9/1/05 effective date of this support adjustment as the order herein includes an adjustment for work-related child care through the YMCA program. Future summer work-related child care not covered by the YMCA program shall be divided proportionately as noted herein, but a necessary prerequisite is use of the least expensive, qualified child care alternative available. Plaintiff shall provide reasonable advance notice*[*] of the alternatives available and defendant's failure to respond with a viable alternative within 14 days thereafter shall constitute an authorization for same. Contribution shall be reduced/offset by the $195 per month already included in the guidelines calculation. *[*]at least 30 days.
On February 24, 2006, defendant was granted primary physical custody of B.B., triggering the seventy percent reimbursement of "expenses." M.B. stopped attending daycare in June of 2007.
On March 12, 2009, defendant filed a motion seeking to eliminate his wage garnishment for after-school care for M.B. of $195 per month because the child had not been attending since June 2007, obtain reimbursement for after-school care payments made since the child stopped attending, and decrease alimony. Plaintiff filed a cross-motion seeking an increase in alimony, reimbursement for improvements to the marital home, payment by defendant of his share of medical bills and summer child care, and counsel fees.
After hearing oral argument, on May 27, 2009, the trial court entered an order: (1) denying defendant's request for a reduction in alimony; (2) granting defendant's request for reimbursement of the $3900 garnished after M.B. stopped receiving after-school care, to be offset against other payments due plaintiff; (3) granting defendant's request to eliminate wage garnishment for after-school expenses; (4) denying defendant's request to offset the amount he owed by the expenses he incurred; (5) denying plaintiff's requests for increased alimony and reimbursement for home ...