On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-808-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011 - Decided Before Judges Espinosa and Skillman.
The parties had a several-year relationship that resulted in the birth of two children, the first on August 8, 2001, and the second on October 22, 2002.
The parties' relationship was tumultuous, and on September 24, 2001, plaintiff filed a domestic violence action against defendant, which resulted in entry of a final domestic violence restraining order on November 15, 2001. That order required defendant to pay plaintiff $174 per week in child support for the parties' first child.
On December 11, 2002, after the birth of the parties' second child, another order was entered that continued defendant's child support obligation at $174 per week.
On March 13, 2003, another order was entered that increased defendant's child support obligation to $371 per week, retroactive to November 14, 2002. The order stated that this obligation "represents $209 for child support and $162 for child care."
On March 25, 2004, another order was entered that increased defendant's child support to $444 per week. There was no breakdown in this order of separate awards for regular child support and child care. As a result of cost of living adjustments, defendant's child support was subsequently increased to $551 per week. No further orders relating to defendant's child support obligation were entered until the end of 2009.
In 2004, defendant moved to Japan to take a new job that resulted in a substantial increase in his salary. In 2008, defendant's salary was approximately $130,000. However, approximately $25,000 of that salary represented a special "ex pat" award defendant's employer paid for defendant's first five years in Japan, which was terminated at the beginning of 2009. As a result, defendant's gross salary in 2009 was reduced to approximately $106,000 per year, which after taxes equals approximately $85,000 per year.
In 2004, plaintiff sent the oldest of the parties' two children to a Montessori preschool and in 2005 she sent the younger child to the same school. Both children have remained in that same private school up to the present day. At the time of the hearing before the trial court, the older child was in third grade and the younger child was in first grade. From 2004 until 2009, plaintiff failed to inform defendant that she was sending the children to the Montessori school and did not seek any contribution from him for the costs of tuition.
On June 25, 2009, defendant filed a motion with the trial court that sought various relief including a recalculation of his child support obligation. Plaintiff responded by filing a cross-motion that sought, among other things, an order requiring defendant "to pay fifty percent of the children's monthly private school costs."
The trial court conducted a two-day evidentiary hearing on the cross-motions at which plaintiff and defendant were the only witnesses. Based on the evidence presented at that hearing, the court entered an order on April 25, 2005, accompanied by a written opinion, which established defendant's child support obligation at $417 per week and also required defendant "to pay fifty-five percent (55%) of the children's private school tuition," effective June 25, 2009. Although the order does not so state, it appears from the court's opinion that its intent also was to impose upon defendant the obligation for paying 55% of the cost of his children's attendance at summer camp. The order also denied both parties' applications for counsel fees.
Defendant has appealed solely from the part of the order that requires him to pay 55% of the cost of his children's tuition at the Montessori school. Plaintiff has not filed an answering brief. The trial court has stayed ...