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Mark J. Difilippo v. Kristie M. Difilippo

March 14, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-665-06.

Per curiam.


Submitted March 2, 2011

Before Judges Lihotz and J. N. Harris.

Defendant appeals from the February 19 (filed February 25) and March 18, 2010 orders of the Family Part in this post-judgment matrimonial proceeding. These orders addressed the calculation of child support, the admeasurement of child support arrearages, and the reallocation of counsel fees. Because we find that the Family Part neither abused its discretion nor misapplied the applicable law, we affirm, except for one issue that requires further development in the Family Part.


The parties were married in March 2001, and their only child was born in August of that year. After enduring marital difficulties that ultimately led to their separation, the parties proceeded to obtain a divorce that was entered on August 15, 2006. The parties proceeded pro se, and the Family Part prepared and entered the final judgment of divorce, which expressly addressed only the economic issue of child support. By the parties' mutual agreement, the court set plaintiff's monthly child support obligation at $500, and provided that such payments were to be made by plaintiff to defendant directly.

Thirty months later, plaintiff filed a motion seeking: (1) a declaration of joint custody, with plaintiff seeking the designation as parent of primary residence; (2) a parenting time schedule; (3) a determination of child support according to the child support guidelines; and (4) the allowance for plaintiff to claim the minor child as a dependent for income tax purposes in even-numbered years, commencing in 2008. Defendant responded with her own motion seeking: (1) enforcement of litigant's rights due to plaintiff's failure to pay $500 per month child support; (2) a declaration that plaintiff become current in his child support obligation; (3) the entry of a wage execution for future child support payments; and (4) an order compelling plaintiff to pay defendant's counsel fees. Defendant also opposed plaintiff's effort to be designated the parent of primary residence.

Virtually all of the contested issues were resolved in the summer of 2009 through court-sponsored mediation. The parties' agreement was memorialized in an order of the Family Part dated July 31, 2009,*fn1 which ordered that the parties would share joint custody of their child, delineated a parenting time schedule, alternated the income tax child-dependency status between the parties, and delegated to the parties' attorneys the obligation to "run the Child Support Guidelines to determine the new child support amount based upon the [agreed-upon] parenting plan."

Unfortunately, several months passed without a successful resolution of the "new child support amount." Frustrated by the delays, plaintiff filed a new motion in February 2010 asking the court to determine child support and award him counsel fees. In his certification in support of this motion, plaintiff emphatically indicated, "my request to be designated as the Parent of Primary Residence is WITHDRAWN . . . . Thus, the only issues remaining for the Court to dispose of are the amount of child support and the amount of arrears." Defendant responded with a cross-motion seeking enforcement of litigant's rights by:

(1) "compelling the [p]laintiff to pay arrears from direct pay prior to probation account," (2) "compelling the [p]laintiff to pay bank records costs," and (3) "compelling the [p]laintiff to pay the [d]efendant's attorney's fees and costs for this application."

On February 19, 2010, the Family Part granted plaintiff's motion and denied defendant's cross-motion. The court found that the principles announced in Benisch v. Benisch, 347 N.J. Super. 393 (App. Div. 2002) and applied in Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009) were applicable. Accordingly, it calculated child support under this dual lens, and determined from the financial data provided that plaintiff's "child support shall be $25.00 per week. This shall be effective March 27, 2009." In addition, the court applied the nine factors contained in Rule 5:3-5(c) in determining that plaintiff was entitled to an award of counsel fees and defendant was not. In a supplemental order dated March 18, 2010, the court awarded plaintiff $730 in reallocated counsel fees, which represented approximately thirty-five percent of the amount that plaintiff requested. This appeal followed. In response to defendant's notice of appeal, the motion court submitted a written amplification of the rationale undergirding its orders pursuant to Rule 2:5-1(b).



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