On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1571-93C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2011 -- Decided Before Judges Lisa, Reisner and Sabatino.
Plaintiff, Jeffrey Menaged, appeals from portions of an October 30, 2009 post-judgment order that (1) denied his motion for reconsideration of a provision in a prior order that increased his weekly child support arrears obligation from $50 to $150, and (2) set his child support obligation at $102 per week. Defendant, Jacqueline Kushner, formerly known as Jacqueline Menaged, cross-appeals from a provision in the October 30, 2009 order that denied her motion for reconsideration of a provision in a prior order that awarded plaintiff an $1100 counsel fee.*fn1 Our review of the record persuades us that the trial court's determinations on the discrete issues before us were not in accordance with the controlling legal principles and were internally inconsistent. Accordingly, we vacate the portions of the October 30, 2009 order that are before us and remand for reconsideration of those issues.
This is the pertinent background of the parties. They were married in 1987. They had four children, who are now twenty- three, twenty-two, twenty-one and nineteen years of age. The parties divorced in 1996.
Plaintiff left the country for a time, apparently for several years, and it is believed that he lived in Israel and Mexico during his absence. Substantial child support arrears accumulated while he was absent and, perhaps, at other times. It is undisputed that the arrears are currently about $120,000. Plaintiff has remarried and had an additional child. Defendant has also remarried. Although the particulars are unclear from the record, she has nine children with her current husband.
The parties both live in Long Branch. Plaintiff owns and operates a small business, a franchise known as Pressed4Time. This is a service by which plaintiff picks up clothing from his customers for dry cleaning, delivers them to the company designated by the franchisor for cleaning, and then returns them to the customer. He operates the business out of a van. Ninety-five percent of his customers pay by credit card. Plaintiff's wife is a school music teacher, earning about $44,000 per year.
Defendant is not employed outside the home. In addition to their home in Long Branch, defendant and her husband own a home in Florida, where they vacation periodically. According to plaintiff, defendant drives an expensive car, has housekeepers, makes (along with her husband) generous charitable contributions, and generally lives a rather lavish lifestyle.
A child support order was set in 2000, obligating plaintiff to pay $150 per week, plus $50 per week toward arrears. That was apparently based on income (actual or imputed) to plaintiff of $400 per week (or $20,800 per year). Defendant was not employed outside the home at that time. With periodic cost of living adjustments, by 2009, when the proceedings that are now before us occurred, the weekly support obligation had increased to $190 (plus the $50 toward arrears).
Plaintiff has long been estranged from his children. At the time of the motions that are the subject of this appeal, all four children were over the age of eighteen and had graduated from high school. The oldest was attending college in New York, where she was living with her grandmother. The second child had attended a one-year program in Israel after graduating from high school, and intended to enroll in college in New York, and possibly also live with her grandmother. The third child had also attended the post-high school program in Israel for a year, and was either going to return to that program or attend college in New York the following year. The fourth child had recently graduated high school and intended to attend the Israel program.*fn2
Plaintiff has had no input into the choice of colleges or other educational programs for any of the children. Other than his child support payments, he has not contributed to any college education expenses. In one of the motions contained in the record, we note that defendant sought an order compelling plaintiff to contribute to college education expenses. Applying the factors in Newburgh v. Arrigo, 88 N.J. 529 (1982), the court denied the relief and ordered that plaintiff would not be obligated in that regard unless he was fully informed of the children's plans and intentions and permitted to participate in the decision-making process. That order is not before us, but we mention it to provide further context to the orders that are before us.
The October 30, 2009 order that is before us was the third in a trilogy that included prior orders of May 27, 2009 and August 31, 2009. We now set forth the relevant aspects of the motions leading up to each of the orders and the relevant provisions of the orders.
On February 18, 2009, plaintiff moved to emancipate the three oldest children and to decrease his child support obligation, which was then $190 per week. Defendant opposed the motion and cross-moved for various items of relief. These included requests to increase the child support, to compel plaintiff to contribute to college expenses, and to require plaintiff to carry certain life insurance. She also sought an order to require plaintiff to transfer his home to her in partial satisfaction of the outstanding child support arrears and to provide an accounting of the settlement proceeds paid on behalf of the oldest child when she was much younger in settlement of a claim.
On May 27, 2009, the court denied all of the relief requested by both parties. The order included a provision granting plaintiff a period of six months to track the accounts in which the ...