On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1472-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2011
Before Judges Axelrad and Ostrer.
Plaintiff Roseann Eteson and defendant Bruce Eteson appeal and cross-appeal from aspects of the trial court's order deciding various requests for post-judgment relief. We affirm.
After almost nine years of marriage, the parties divorced in 1996. Plaintiff received primary residential custody of the parties' two daughters, born in 1991 and 1993. Their final judgment of divorce (FJD) provided that defendant was to pay plaintiff $1500 a month in child support. According to their pre-judgment case information statements (CIS), plaintiff earned no income, and defendant's gross earnings slightly exceeded $81,000. The parties agreed that child support would be modified based on changed circumstances consistent with Lepis v. Lepis, 83 N.J. 139 (1980). They also agreed that post-secondary educational costs would be shared "in accordance with their respective financial abilities at that time."
After the divorce, plaintiff entered the workforce. She stated that as of 2008, she earned over $133,000 a year as an electronics engineer for the United States Army. Defendant's income also grew substantially, exceeding $340,000 by 2008. Over the years, as their incomes rose, the parties privately agreed to modify child support. Defendant also agreed to pay child support through Probation, although the FJD allowed him to pay plaintiff directly.
Although their incomes ultimately exceeded the maximum subject to the Child Support Guidelines, defendant arrived at a proposed child support amount, acceptable to plaintiff, by extrapolating from the Schedule of Child Support Awards (Child Support Schedule or Schedule). He did so, notwithstanding that the Schedule and Considerations in use of Child Support Guidelines (Guidelines Considerations) disapproved of extrapolation. See Pressler & Verniero, N.J. Court Rules, Appendix IX-F (2011) (Child Support Schedule) ("DO NOT EXTRAPOLATE THESE SCHEDULES BEYOND $3,600 COMBINED WEEKLY NET INCOME."); id. at Appendix IX-A, ¶20(b) (Guidelines Considerations) ("[T]he court shall not extrapolate the Appendix IX-F schedules (statistically or by adding amounts from different income ranges)" beyond the maximum amount.).
Sometime around April 2008, the parties agreed privately that defendant's child support obligation would rise to $2450 a month, based on net-after-tax incomes of $83,921 for plaintiff and $156,852 for defendant. Defendant's income was based on two elements: (1) projected salary of $172,390, based on an annualization of his 2008 hourly rates; and (2) $67,060 in incentive plan payments received in 2008. These two elements totaled $239,450. In documenting this income, defendant provided plaintiff with a March 6, 2008 paystub and a copy of a 2007 Management Incentive Plan Payout Worksheet.
In performing his calculation, defendant claimed he used an out-of-date Child Support Schedule. Effective September 1, 2007, the schedule found at Appendix IX-F was modified. The new schedule increased the maximum net weekly income from $2900 to $3600 and generally reduced child support amounts for relatively high incomes. Compare Pressler, N.J. Court Rules, Appendix IX-F (2005) with Pressler & Verniero, N.J. Court Rules, Appendix IX-F (2011).
In the absence of a court order modifying the original $1500-a-month child support obligation, Probation began recording amounts over $1500 as overpayments. Consequently, the parties entered into a consent order on June 15, 2009 to formalize a new child support agreement that the parties reached in April 2009. The new agreement called for a monthly payment by defendant of $3200. The order also erased defendant's positive account balance with Probation. The preamble to the parties' pro se consent order governing defendant's child support obligation stated:
Bruce calculates the child support amount each year using his and Roseann's incomes and he provides all of the information used for the calculations to Roseann for discussion and agreement. The most recent child support amount of $3,200.00 per month began on April 1, 2009. Since learning of the new law [pursuant to which Probation would forward only the court-ordered amount], Bruce has paid this amount to Roseann, but only $1,500.00 via CS62147220A. Roseann's and Bruce's current total incomes are $132,884.00 and $342,870.00, respectively. They will update the Court in any year there is an increase or decrease.
In February 2010, plaintiff filed a motion seeking, among other forms of relief, an order (1) compelling defendant to file a CIS to disclose his tax returns and related tax documents for 2007, 2008 and 2009, and (2) allocating college expenses.*fn1
Plaintiff alleged that shortly after entering the 2009 consent order, defendant provided plaintiff with certain pay records reflecting, at least in 2009, that he received bonus income from an incentive plan that was not considered in prior years' child support calculations. She alleged that defendant had previously represented that his total income consisted of his salary and the single bonus program disclosed in 2008. She sought discovery to determine whether ...