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Marci Ann Dijoseph v. Nicholas Dijoseph


July 18, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-97-06.

Per curiam.


Submitted April 11, 2011

Before Judges Lisa and Alvarez.

Defendant Nicholas DiJoseph appeals the provisions of an order, entered April 21, 2010, increasing child support payable to his former wife, plaintiff Marci Ann DiJoseph, to $225 weekly, and denying his application to modify the parties' parenting time schedule. For the reasons that follow, we affirm.

The parties divorced on March 30, 2006. Pursuant to the final judgment of divorce, defendant agreed to pay not only child support, but limited duration alimony. After the alimony term ended on June 21, 2009, the parties engaged in nearly a year of fruitless correspondence attempting to negotiate the new amount of child support.

When the motion was heard, plaintiff was receiving unemployment in the amount of $433 per week. She is not a college graduate and, prior to her unemployment, had worked at a glass company for twelve months, earning $20 per hour. When divorced in 2006, plaintiff's income was imputed at $385 weekly.

Defendant, employed by Sunoco, Inc., asserted his actual 2009 income was $98,485.66, exclusive of $3888.20 in overtime, $8610.53 from a "success sharing bonus," and a one-time "spot bonus" of $3500. Defendant claimed the overtime and bonuses would not be repeated.

The court calculated the new child support amount of $225 weekly retroactive to March 12, 2010, the date plaintiff filed her motion. The judge used plaintiff's unemployment of $433 weekly and assumed defendant's earnings at $1991 per week, or annual income of $103,532, based on his 2009 W-2, after deducting Philadelphia city wage taxes, health and dental insurance premiums, and mandatory contributions to disability.

On January 25, 2010, prior to defendant's application, plaintiff obtained an order requiring defendant to complete an anger management course and submit to a drug and alcohol evaluation before unsupervised parenting time with the couple's child was reinstated. In April 2010, the court refused to modify these conditions because it did not consider the evaluation defendant supplied to fully address whether he has a problem with drugs or alcohol.

Additionally, defendant requested parenting time on alternating Fridays in addition to his regular weekends. Defendant alleged that he and plaintiff had worked out a schedule that included Fridays, but then his work hours subsequently changed. They had since changed back, so as to make alternating Fridays again an option. The court concluded that defendant's assertions about his availability on Fridays did not establish a significant change of circumstances pursuant to Lepis v. Lepis, 83 N.J. 139 (1980). In any event, the issue could not result in an increase in visitation, given that the motion judge did not conclude defendant established a basis for the resumption of unsupervised visitation in the first place.

Now on appeal, defendant contends the trial court erred in its determination of his income for purposes of calculating child support, in failing to find he had not met the conditions of the January 25, 2010 order, and in finding that he failed to meet his burden pursuant to Lepis, supra, in refusing his request for an additional day of parenting time.

First, we reiterate the familiar standard. Great deference is paid to findings of fact in the matrimonial courts, as a result of the Family Part's "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). We only reject such findings where they are not based on adequate competent evidence in the record. Finger v. Zenn, 335 N.J. Super. 438, 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).

There is nothing objectionable about the court's issuance of a child support order based on plaintiff's unemployment benefits, particularly given her educational circumstances and the fact that her benefits were actually greater than the amount of income imputed to her at the time of divorce. Although plaintiff earned substantially more when employed post-divorce, that employment was brief.

Insofar as the court's assessment of defendant's income, we see no error in the inclusion of bonuses and overtime. If such payments are not received in the future, defendant has the right to seek redress. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2408 (2010) ("Sources of Income"). Inclusion of the disputed items is actually specifically allowed by the court rules. See also id. at 2408-09 (subsections f and g).

Unfortunately, we do not have copies of the January 2010 order in which defendant's parenting time was suspended or the drug and alcohol evaluation he presented for the court's review in support of his application to reinstate unsupervised parenting time. Although not entirely clear, defendant's only assertion of error with regard to the parenting time order seems to be that the Family Part judge should have concluded that the reinstatement of his flex-time schedule, which allowed him a free Friday every other week, warranted modification of the parenting time order. We do not agree.

As the court stated, the denial was without prejudice and was made subsequent to its conclusion that defendant had not complied with the January 25, 2010 requirements as to a drug and alcohol evaluation. Since parenting time was suspended, it did not appear that the availability of an additional day off during the week was a significant change of circumstances such as would warrant a departure from the original parenting arrangements. Accordingly, this claim of error is also rejected.



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