On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2269-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Messano and Waugh.
Defendant Dorothy J. Fox appeals two orders entered by the Family Part with respect to child support and certain transportation costs. We dismiss in part and affirm in part.
We discern the following facts and procedural history from the record. The parties were married on October 28, 1983.
They have four children, the youngest of whom is a daughter born in May 1994. The youngest daughter, A.F. (Alberta), lives with plaintiff William T. Fox in Illinois.*fn1
William received permission to move from New Jersey to Illinois with Alberta in an order dated August 14, 2009. Prior to the removal, the parties shared joint legal custody and "reasonable and flexible parenting time between the parties." Alberta lived primarily at the former marital residence, which was owned by William pursuant to a buy-out provision in the parties' property settlement agreement (PSA). Neither parent was paying child support pursuant to the PSA, "[b]ased on the considerations of [the PSA] and the circumstances of the parties joint custody arrangement."
The August 14 removal order required the parties to split evenly the costs of transportation for the parenting-time schedule that was attached to the order. Dorothy filed a motion for reconsideration. She requested that the motion judge (1) list the cases on which the removal decision was based, (2) recalculate the allocation of the transportation costs, and (3) provide that all future support issues should be resolved in New Jersey rather than Illinois. William opposed the motion.
Dorothy's motion was heard October 23. The judge noted that he had explained his reasons for granting the removal motion on the record at the oral argument on August 14. He also told Dorothy that jurisdiction would remain in New Jersey as long as one parent resided in this state. He agreed to reconsider the allocation of travel costs, and requested further financial information.
The judge raised the issue of child support sua sponte. In response to Dorothy's argument that the PSA provided a waiver of child support, the judge pointed to the language from the PSA, quoted above, that the waiver was based, in part, on the then-current custody and parenting arrangements. He also relied on the legal principle that parents cannot waive a child's right to support.
After receiving the further submissions of the parties, the judge entered an order on November 9. The order reallocated the transportation costs so that William would pay sixty percent and Dorothy forty percent. It also required Dorothy to pay child support in the amount of $42 per week, effective upon Alberta's relocation to Illinois. The order contained an explanation of the judge's financial calculations.
William's attorney subsequently wrote two letters to the motion judge, outlining what he characterized as an error in the judge's calculation of child support. He suggested that the ...