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Miriam Shaw v. Jarrod D. Shaw


July 25, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1421-06-X

Per curiam.


Submitted April 5, 2011

Before Judges Payne and Baxter.

Defendant, Jarrod D. Shaw, appeals from post-judgment orders entered in the Family Part on January 8, 2010 and March 19, 2010.

We glean the following facts from the record. The parties were married in 1989, divorced in 1994, remarried in 2001 and divorced in 2007. They had three children, a daughter born in August 1989, and twin boys born in January 2002. At the time of their second divorce, the parties entered into a detailed forty-page property settlement agreement (PSA) that, as a compromise figure, the parties being otherwise unable to agree, listed defendant's income as $147,000 and plaintiff's as $47,000. Defendant was required by the PSA to pay plaintiff, as parent of primary residence, $2,650 per month in child support from September 1, 2007 through August 31, 2008. From September 1, 2008 to the date of the daughter's emancipation, defendant was to pay $2,300 per month in child support. No alimony was awarded in the PSA. However, equitable distribution by defendant to plaintiff for a fixed period of thirty-two months at $1,000 per month was required.

At the time of the PSA, the daughter was living with plaintiff and attending community college. Thereafter, she moved in with defendant, and as a result, he moved for a reduction of child support. On February 22, 2008, the court granted the motion, finding a significant change in circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). Utilizing the income figures to which the parties had agreed approximately six months earlier, child support was recalculated in accordance with the child support guidelines at $1996 per month in the period from January 15, 2008 to August 31, 2008. Thereafter defendant's obligation would be $1690 until the emancipation of the daughter, at which time, pursuant to the PSA, defendant's obligation would be $2,100.

The court's order was appealed, and we affirmed. Shaw v. Shaw, No. A-4137-07 (App. Div. June 15, 2009).

While defendant's appeal was pending, plaintiff moved to modify child support, claiming that the daughter had returned to live with her. A cross-motion was filed by defendant. Because of the pendency of the appeal, the motions were denied without prejudice on February 27, 2009. However, after the appeal was decided, in a June 15, 2009 order, the court permitted the parties to file new motions supported by current financial information. Both parties filed such motions.

In plaintiff's motion, she claimed that the daughter had returned to New Jersey in December 2008 and had enrolled in community college on January 7, 2009. In addition to increased child support, plaintiff also sought to claim her as a dependent and she sought an order requiring defendant to pay sixty-five percent of the daughter's college expenses as set forth in the PSA. She also sought to prevent the twins from watching age inappropriate television shows while with defendant, and to ensure that they kept up with their summer reading. Plaintiff's case information statement (CIS) indicated that she was currently earning $53,983 per year.

Defendant, who according to the PSA is self-employed, conducting separate computer and real estate businesses, sought a reduction in child support, claiming that he was earning only $89,000 starting in November 2008, and that he was presently unemployed. Defendant also sought a credit of $1000 per month as the result of "alimony" that he was paying to plaintiff, which he claimed should be declared as income on plaintiff's taxes. Additionally, he sought documentation of plaintiff's work-related child care expenses and proof of life insurance naming him as beneficiary. Defendant's CIS included an October 18, 2009 pay stub that indicated that he was earning $40.37 per hour and that he had earned $82,285.03 that year.

In an order dated January 8, 2010, the court resolved the cross-motions by the parties by ordering (1) an adjustment to child support to the level agreed upon in the PSA, effective January 30, 2009, to reflect the daughter's return to her mother and rejecting defendant's Lepis motion as insufficiently supported; (2) granting plaintiff's motion requiring defendant to pay sixty-five percent of the daughter's college expenses in accordance with the PSA; (3) denying plaintiff's motion to claim the daughter as a dependent for tax purposes as contrary to the PSA; (4) requiring that the parties only allow the twins to watch age-appropriate television and do their summer reading;

(5) requiring exchange of proofs of life insurance within thirty days of the date of the order; (5) requiring plaintiff to provide documentation of work-related child care expenses for the twins within thirty-one days of the date of the order; and

(8) denying defendant's effort to require plaintiff to declare her "alimony" for tax purposes, and finding that defendant's payments were not alimony.

Thereafter, additional motion practice occurred, resulting in entry of two orders on March 19, 2010. The first provided

(1) defendant's motion to require plaintiff to produce proof of life insurance was granted, and plaintiff's proofs were deemed adequate; (2) defendant's motion to require plaintiff to provide documentation of work-related child care expenses was granted, and plaintiff was directed to provide authorization for him to obtain that information directly; and (3) defendant's motion to emancipate the daughter was denied without prejudice. In the second order, a stay pending appeal of the January 8, 2010 order was denied. Defendant provided written submissions in connection with the March motion, but did not appear, whereas plaintiff did. Plaintiff did not file a brief on appeal.

On appeal, defendant complains that, upon obtaining bills from the twins' child care provider, defendant determined that his work-related child care payments were considerably higher than costs incurred and therefore child support should be adjusted. We decline to consider defendant's arguments, which have not been presented in the Family Part.

Additionally, defendant asserts that plaintiff's evidence of having obtained $300,000 in life insurance with defendant as beneficiary in his capacity as custodian for the benefit of the children was inadequate. Our review of the record, which contains only a proof of beneficiary, without any accompanying information as to the amount of coverage and the carrier, suggests that defendant is correct. We reverse this aspect of the court's order and remand so that additional and more complete information can be ordered to be produced.

Defendant argues next that his Lepis motion should have been granted. In support of that argument, he attaches his 2009 tax returns. Since that evidence was not offered in the Family Part, we deny relief at this time. Defendant is free to bring a new and properly supported motion before the trial court.

Defendant additionally seeks a form 1098 from his daughter's college so he can claim his share of her college expenses for tax purposes. We are unable to verify that he asked for this document previously in appearances in the Family Part. Moreover, plaintiff appears to have provided defendant with all relevant bills. Accordingly, if defendant seeks further relief, he should do so by motion in the Family Part.

In summary, we find the majority of the issues raised by defendant not to be ripe for review. However, we do reverse the Family Part court insofar as it declined to order production of proof of life insurance in the amount of $300,000 listing defendant as beneficiary in his capacity as custodian for the children.

Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.


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