On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-0410-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010
Before Judges A. A. Rodriguez and LeWinn.
Defendant Robert J. Charles appeals from the denial of a motion to modify his child support obligations to plaintiff Lisa Charles. We affirm.
The parties were married in October 1992 and had two children. They were divorced on July 27, 2004. The property settlement agreement (PSA) incorporated into their judgment of divorce contains the following provisions pertinent to the issues on appeal: (1) plaintiff is designated as the children's parent of primary residence (PPR) and defendant is the parent of alternate residence (PAR); (2) defendant's weekly child support is set at $325, which includes fifty dollars towards private school expenses and twenty-five dollars towards karate expenses*fn1 ; (3) the "dollar amount of child support" is based on defendant's annual earnings of $11,890 net business income and $42,391 gross disability income, and plaintiff's annual income of $52,986; (3) defendant has overnight parenting time on alternate weekends from Friday to Monday morning and one mid-week overnight on alternate weeks; (4) each party has three non-consecutive weeks of summer vacation time, and they alternate Thanksgiving, Christmas Eve, winter and spring school breaks and President's week.
On June 8, 2009, defendant moved to modify his child support obligation based on his contention that a proper calculation of his parenting time warrante eed dd an adjustment of his support obligation pursuant to a shared-parenting guidelines worksheet and because his income had changed. On September 11, 2009, Judge Convery heard oral argument from the parties on the motion and issued an order denying husband's motion. During the hearing the judge stated that, excluding vacation and holidays, he calculated husband's parenting time at eighty nights per year based on the Child Support Guidelines. The judge noted that the parties used the Sole Parenting Worksheet at the time of the divorce and therefore, they were aware that holidays and vacation are excluded when calculating parenting time. The judge also rejected defendant's claim that his earnings had decreased, noting that defendant had not "shown [him] a substantial change."
Defendant filed a moved for reconsideration. In denying this motion, the judge again noted that the parties used the Sole Parenting Worksheet and that courts look to the parties' intent with regard to parenting time. The judge further noted that there is a presumption that husband knowingly and voluntarily "waived any so-called claim that he may have had about how to interpret "the sole parenting worksheet. In addition, Judge Convery noted that the provisions of the PSA that the husband sought to modify "are both unambiguous, consented to, and agreed to by the parties at the time that they put through their property settlement agreement."
On appeal, defendant argues that Judge Convery erred in calculating his parenting time because vacations and holidays were not included in the judge's calculations. Defendant further argues that the judge's refusal to include vacation time in his calculation of parenting time was an abuse of discretion. We disagree.
Defendant contends that the PSA sets his regularly scheduled PAR time at 104 nights per year. This calculation of parenting time is based on alternating three-night weekends, alternating Wednesday nights, holidays and summer vacations. He argues that, despite the specific prohibition against counting holidays and vacation time in the Court Rules, Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R.5:6A at 2442 (2011), that time should be counted in this case because it was included in the PSA.
The following criteria are a prerequisite in determining whether a shared-parenting award is appropriate:
(1) A parenting plan that specifies parenting times and responsibilities must be filed with or ordered by the court.
(2) The PAR has or is expected to have the child for the substantial equivalent of two or more overnights per week over a year or more (at least 28% of the time) and the PAR can show that separate living accommodations for the child are provided during such times (i.e., evidence of separate living accommodations maintained specifically for the child during overnight stays).
(a)At the discretion of the court, the determination of qualifying shared- parenting time may include extended-PAR Time periods of five or more consecutive overnights that are part of a regularly scheduled rotation between the parents as set forth in a parenting plan or court order if the PAR shows that marginal housing-related costs were incurred for those periods. Qualifying shared-parenting time shall not include extended PAR Time periods of five or more overnights that represent vacations, ...