August 19, 2011
LISA M. CHARLES, PLAINTIFF-RESPONDENT,
ROBERT J. CHARLES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, holidays, or other periodic events . . . . [Pressler & Verniero, supra, Appendix IX-A to R.5:6A at 2442-43(emphasis in original).]
Defendant's argument is without merit. The PSA sets his PAR time at four overnights a week for twenty-six weeks based on alternating three-day weekends and alternate Wednesday evenings. Husband and wife have three weeks of vacation time each for a total of six weeks per year. In addition, there are three weeks of regularly scheduled school holidays each year including winter break, president's days, and spring break. The guidelines state that these nine weeks are not counted towards regular PAR time. Ibid. Defendant contends that the regularly scheduled weekends and Wednesdays that fall during these periods should nevertheless be counted in determining PAR time.
In arguing that holiday and vacation time should be included in his parenting time calculation, defendant cites to a the following section of the Court Rules: "[e]xtended PAR Time periods that are part of a regularly scheduled rotation of consecutive weeks between the parents that is set forth in a parenting plan or court order . . . should be included in the calculation of the regular PAR Time adjustment." Id. at 2440. However, defendant omits the preceding sentence which states that "[e]xtended PAR Time in excess of five consecutive overnights that represents a single event or intermittent occurrence (e.g., vacation or holiday time) shall not be used to determine the non-custodial parent's annual percentage of overnight time for calculating a regular PAR Time . . . adjustment." Ibid.
Defendant argues that Judge Convery abused his discretion by excluding vacation time and regularly scheduled PAR Time during holidays because such exclusion is contrary to the intent of the Court Rules. He contends that, because he could choose not to exercise his vacation time with his kids and instead receive credit for his normally scheduled PAR Time, the judge's decision discourages him from spending time with his kids. We find no merit in this contention.
Defendant's annual PAR Time should be calculated based the fifty-two week calendar year minus the nine weeks of regularly-scheduled vacation days and holidays. The resulting forty-three weeks is reduced by half based on the alternation of parenting time on weekends and Wednesdays between husband and wife. Therefore, defendant's PAR time calculation is the sum of four times either twenty-one or twenty-two, depending on the holiday rotation between the parties. The result is that his PAR Time is either eighty-four or eighty-eight nights per year. This total does not meet the twenty-eight percent threshold required for the shared-parenting credit.
Defendant also argues that Judge Convery erred in calculating his personal income because a portion of his pension is paid to plaintiff. Defendant further argues that the judge erred in calculating his business income because he did not deduct operating expenses from gross income. We disagree.
Defendant argues that because a portion of his pension is paid to the wife to satisfy her equitable distribution interest, the calculation of support based on the full award constitutes a double payment to wife. The equitable distribution however, is clearly governed by the PSA , which states that "[t]he dollar amount of child support is based upon Husband's present income as follows of $11,890 of net business income per year and $42,391 gross disability income. The PSA specifically states that the calculation is based on defendant's "gross" disability income. In addition, the PSA contains a provision stipulating the equitable distribution of his pension. Therefore, it is clear that the parties contemplated the fact that defendant would not receive the full amount of his pension when calculating his child support obligation.
Defendant further contends that the judge miscalculated his business income by double-counting his business deductions. However, he fails to indicate how any error by the judge effected his support obligations as set by the PSA. He indicates that his business would show a profit of $18,764 when calculated correctly. The child support calculation in the PSA is based on a net business income of $11,890. Thus, defendant's own calculation of his business income fails to support a reduction of his child support obligation.