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Andrea Magalhaes v. Thomas Russo

May 17, 2011

ANDREA MAGALHAES, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
THOMAS RUSSO, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0439-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2011

Before Judges Fuentes, Nugent and Newman.

Defendant Thomas Russo appeals from provisions in an order of September 18, 2009 on a motion for reconsideration, resetting child support for one child at $191 per week and the underlying order of July 6, 2009. Plaintiff Andrea Magalhaes cross-appeals from that portion of the same order requiring her to reimburse defendant $6800 for credits due for funds advanced, but not utilized for the education of another son, and also to reimburse defendant $1128 for the amount of a tax exemption in 2007 to which plaintiff was obligated to defendant. We reverse and remand on the direct appeal and affirm on the cross-appeal.

The relevant background was summarized by the trial court, which had reviewed the matter on prior occasions and was familiar with the history of the case, describing it as follows:

The father Thomas Russo and the mother, Andrea Magalhaes were never married and have two children together, Nico, age 19 and Marcello, age 21. On February 2nd, 2006, Judge McGann entered an order setting child support at $302 a week for both children, payable by Thomas Russo. On March 23rd, [2007], the parties entered into a consent order requiring Thomas Russo to pay $225 a week to support Nico. The order also stated that Russo would pay $8200 to Andrea Magalhaes to contribute towards Marcello's child support and college expenses at the Motorcycle Mechanic Institute. The order also stated that both parties would be entitled to claim one child as a dependent for federal and state taxes beginning in the tax year 2007.

On April 21st, [2009], I entered an order which emanicipated Marcello and stated that Thomas Russo had no obligation towards costs associated with Nico's college education. On July 6th, [2009], I entered an order which established Thomas Russo's child support for Nico at $198 per week plus $15 a week in arrears for a total of $223.

The father Thomas Russo brings this motion for reconsideration and modification based on several factors. He alleges one, the [c]court made an error when calculating his new child support amount. Two, that he had a substantial change in income. Three, that the [c]court erred by using the child support guidelines to determine his support obligation for Nico as a child over 17. And four, that the plaintiff has failed to provide sufficient financial information to allow the [c]court to determine her yearly income.

The defendant believes that the [c]court mistakenly listed the plaintiff as single for filing purposes instead of head of household. Further, the defendant's income has decreased from [$]93,000 to [$]78,000. And the incorrect figure was used in calculating the child support guidelines. Additionally, the defendant argues that the Court should have used his year to date income figure as the New Jersey Court Rules require after the June 30th calendar year. Finally, the defendant argues that the support guidelines should not be used at all to calculate the child support obligation since Nico is over age 17.

Defendant further abided by the consent order and provided the plaintiff with a check for $8200 on April 6th, [2007] for Marcello's education expenses. The defendant subsequently learned Marcello was no longer enrolled in school. Plaintiff has not provided the defendant with any educational records to ascertain when Marcello ended school. The consent order requires the defendant be reimbursed $200 per week that the child does not attend school, not to exceed the initial amount. Marcello had been expelled from the Motorcycle Mechanic Institute due to drug charges and academic reasons on July 27th, [2007]. The defendant believes he is owed $6,657.14 as a credit for the $200 per week Marcello was not enrolled in school from July 27th through March 15th, [2008] when Marcello was due to complete his studies.

Further, under the March 2007 consent order, each party was entitled to claim one child as a dependent on the federal and state taxes. Defendant was entitled to receive from the plaintiff the amount he would have saved by having one exemption in [2007] and in the future if he yielded the exemption to plaintiff so he could maximize financial aid for the children. The defendant would have saved [$1045] on his federal taxes and $83 on his state taxes for a total of [$1128].

Moving to the mother's opposition. The mother opposes defendant's motion for reconsideration, holding the [c]court correctly used the defendant's tax return from the previous years to calculate gross income. Plaintiff filed on April 21st, [2009], but the case was not heard until July 6th, [2009] due to a problem with the computer system. The mother also argues Nico will be living at home and commuting to Montclair State University and the defendant has no obligation for college expenses. As a result, the child support guidelines still apply to Nico even though he is over age 17.

In deciding the motion to reset child support, the trial court indicated that the guidelines had to be recalculated because there was a mistake in defendant's tax classification by using a single taxpayer, rather than head of household taxpayer classification. The court denied defendant's motion to modify his support obligation based on a change of income because "defendant works in car sales and he frequently receives year [-]end bonuses." While defendant had pay stubs to indicate his ...


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