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James Joseph Mcginley v. Patricia N. Mcginley

June 30, 2011

JAMES JOSEPH MCGINLEY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
PATRICIA N. MCGINLEY, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-569-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 17, 2011

Before Judges Carchman, Messano and Waugh.

Defendant Patricia N. McGinley moved to terminate her child support for the parties' son, James, and to require plaintiff James Joseph McGinley to pay child support. The trial judge granted her application, initially fixing plaintiff's child support obligation at $704.16 per month, an amount agreed upon - but later deviated from - in the parties 1998 property settlement agreement (PSA). Defendant moved for reconsideration, and the trial judge ordered that the modification be retroactive to the date of the filing of the motion, May 8, 2009. The next day, the judge also modified the support amount, multiplying it by the percentage increase in plaintiff's income, and arrived at a child support amount of $3,154.64 per month.

We reverse and remand. We conclude that under the facts presented here, a simple mathematical calculation does not comply with the mandates of N.J.S.A. 2A:34-23(a), Caplan v. Caplan, 182 N.J. 250, 271 (2005), and Pascale v. Pascale, 140 N.J. 583, 595 (l995). While the percentage increase in defendant's income is an important factor in determining plaintiff's support obligation, it is not exclusive and does not relieve the trial judge of performing the required analysis prescribed by the statute and case law.

We review the procedural and factual background to place the issue in context. The parties were married on June 25, 1988, and two children were born of the marriage: Megan, born on September 25, 1989, and James, born on October 30, 1991. The parties were divorced on December 4, 1998, and the Judgment of Divorce incorporated a PSA. Pursuant to the PSA, defendant was the primary residential custodian of the children. The PSA also provided:

10. Commencing October 1, 1998 and continuing until each of the children are fully emancipated, the plaintiff shall pay child support in the sum of $1,408.33 per month, payable one-half on the first (1st) of each and every month and one-half on the fifteenth (15th) of each and every month. Said child support shall be allocated one-half for each child.

11. The alimony and child support referred to above is based upon the plaintiff representing that he has gross earned income of $130,000[] per year.

22. Each of the parties shall be obligated to contribute toward the children's college education consistent with their respective financial ability to do so at the time each of the children are ready to attend college.

There are certain custodial accounts set up for the benefit of the children. Those accounts shall be utilized specifically toward the children's college education and the custodian of said accounts shall be the defendant.

On August 30, 2004, custody of both children was transferred to plaintiff. Defendant was required to pay child support to plaintiff in the amount of $54 per week.

In March 2008, James began residing with defendant, and on May 8, 2009, defendant filed a motion seeking custody of James and modification of child support. On June 24, 2009, the motion judge determined that James was to "remain at Defendant's residence" and that "[e]ither party may file a renewed Notice of Motion to address child support once there has been a full exchange of financial data that is to be done by August 1, 2009." The judge also ordered plaintiff to pay eighty-three percent of Megan's future college expenses, and defendant to pay seventeen percent.

In November 2009, defendant moved to terminate her child support obligation and require plaintiff to pay child support. Defendant also moved to enforce litigant's rights under Rule 1:10-3, seeking to have defendant found in contempt of court, incarcerated, and ordered to pay counsel fees. The judge denied counsel fees and fixed plaintiff's child support obligation at $704.16 per month, retroactive to June 25, 2009. The judge calculated this amount by dividing in half the agreed-upon child support from the PSA, $1,408.33 per month. The judge also noted that this award deviated from the Child Support Guidelines, Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2429 (2011), which would have been $458 per week. The judge declined to use the guidelines because James was eighteen years old, and "we are told by the guidelines that they're to be utilized when calculating a support award for a child . . . 17 years old of age or under."

Defendant filed a motion for reconsideration, seeking a recalculation of plaintiff's child support obligation. On April 21, 2010, the trial judge placed findings of fact and conclusions of law on the record and noted that I'm satisfied here that I did make an error. The original date of retroactivity is the focus of the error. The defendant's monthly child support obligation is terminated and it is made ...


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