On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2125-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Yannotti and Espinosa.
Plaintiff appeals from an order that denied his motion for reconsideration regarding his request for modification of his child support obligation. We affirm in part and reverse in part.
The parties were married in 1989; had one child, a son born in 1991; and were divorced in 1994. Pursuant to their property settlement agreement (PSA), which was incorporated into their final judgment of divorce (JOD), plaintiff was required to pay $350 per month in child support directly to defendant. The PSA also provided that on each fifth anniversary, plaintiff's child support obligation "shall be increased by 20% of the increase" in plaintiff's annual income during the preceding five-year period. The parties agreed that plaintiff's child support obligation would continue through "the completion of four academic years of continuous college education following graduation from high school" and, further, that they would pay for the college education and any other educational costs "in the same percentage as the income relationship of the parties."
Defendant did not receive any child support payments from plaintiff after July 2009. In February 2010, she filed a motion 1) to increase child support payments as provided in the PSA; 2) to enforce litigant's rights as plaintiff had not paid his child support obligation since July 2009; 3) for reimbursement of medical/dental expenses incurred by defendant on behalf of their son; and 4) for reimbursement of college tuition expenses paid by defendant in excess of her proportionate share. Defendant submitted a case information statement (CIS) in which she stated she was unemployed and received unemployment benefits bi-weekly. However, defendant did not complete the income portion of the form and only attached a 2009 W-2 form which listed her wages for that year as $26,934.80. She requested oral argument.
Plaintiff filed a notice of cross-motion opposing defendant's motion and seeking 1) reduction of his child support obligation retroactive to September 2009 when their son entered college; 2) reimbursement of college tuition paid in excess of his proportionate share; and 3) counsel fees. He also requested oral argument.
In support of his cross-motion, plaintiff submitted a certification in which he stated he stopped paying child support in August 2009 because their son began attending and residing at college in Florida in September 2009. Plaintiff noted that, pursuant to the PSA, he is responsible for two-thirds of their son's tuition, which includes room and board expenses. Plaintiff stated that he pays his share of the tuition and also gives their son money for books and spending money. Plaintiff did not argue that his child support obligation ended, but rather, contended he is entitled to a reduction in his child support obligation.
Plaintiff also submitted a CIS in which he stated he earned an annual salary of $88,962 in 2009. He noted that he has two
additional children, born in 1997 and 2000. He attached pay stubs, his 2009 income tax return, and 2009 W-2 statements.
In opposition to plaintiff's cross-motion, defendant asserted that their son continues to reside with her five months of the year. She stated she had refrained from seeking increases to plaintiff's child support obligation in 2003 and 2008 as provided in the PSA because the parties had a verbal agreement that child support would not increase as long as plaintiff was putting money into a college fund for their son. She noted that plaintiff stopped paying child support in July 2009 and, in October 2009, informed her he would no longer pay child support. Defendant also argued she should not be responsible for plaintiff's counsel fees because the motion practice was made necessary by his unilateral decision to stop paying child support.
The court denied both parties' requests for oral argument. In an order dated July 9, 2010, the court granted defendant's request for a recalculation of child support in part. The order stated that plaintiff's child support obligation would be recalculated pursuant to the New Jersey Child Support ...