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Heather Holst-Knudsen F/K/A Heather Mikisch v. Erik Mikisch

March 6, 2012

HEATHER HOLST-KNUDSEN F/K/A HEATHER MIKISCH, PLAINTIFF-APPELLANT,
v.
ERIK MIKISCH, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-293-09.

The opinion of the court was delivered by: Ashrafi, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued January 18, 2012

Before Judges A. A. Rodriguez, Ashrafi and Fasciale.

The opinion of the court was delivered by ASHRAFI, J.A.D.

Plaintiff Heather Holst-Knudsen appeals from a February 9, 2011 order denying in part her post-divorce motions and granting the cross-motion of defendant Erik Mikisch to reduce his child support payments. We affirm the order in part and reverse it in part. Because the trial court did not make sufficient findings of fact as to child support and the proposed change of the child's surname, and because it did not apply controlling law to those issues, we reverse and remand those parts of the order.

I.

Holst-Knudsen and Mikisch were married in 2000. Their daughter was born in 2005. They divorced in December 2008. The final judgment of divorce incorporated a marital settlement agreement, negotiated with the assistance of counsel, which established detailed parenting arrangements and financial support obligations for the child. Two years after the divorce, Holst-Knudsen moved to enforce the child support provided by the divorce judgment, to require that Mikisch make payments through the Probation Department by means of wage garnishment, to modify the parenting schedule, and to change the child's surname to a combination of both parents' names, "Mikisch Holst-Knudsen." Mikisch filed pro se opposition and also a cross-motion to reduce his child support obligation.

The marital settlement agreement provided that the parents would have joint legal custody of their daughter and that Holst-Knudsen would be the parent of primary residence for the child. The agreement laid out a complex parenting time schedule in contemplation of Mikisch living outside New Jersey. He was granted parenting time on the third weekend of each month and an escalating schedule of summer parenting time: four nonconsecutive weeks in the summer of 2010, five consecutive weeks in the summer of 2011, and six consecutive weeks in the summer of 2012 and future years. The agreement also required that the parties be flexible on the parenting schedule and "make every effort to insure that the Husband has unhampered contact with the Child."

Shortly before the divorce, Mikisch moved to South Carolina to take a position as vice president of sales and marketing for an internet media and marketing company. His salary was $140,000 at the time of the marital settlement agreement. Holst-Knudsen was also employed, apparently lucratively, but our record does not reveal the amount of her income. The parties waived any claim for alimony.

As to child support, the agreement acknowledged that its payment schedule deviated from New Jersey's Child Support Guidelines. See Child Support Guidelines, Pressler & Verniero Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2567-78 (2012). The agreement provided a schedule for escalating obligations of Mikisch for payments every other week directly to Holst-Knudsen. He was to pay $425 per week through August 2009, then $450 per week through August 2010, and $525 per week after that time. The agreement also provided for future payment by means of wage garnishment if Mikisch did not make timely direct payments to Holst-Knudsen.

According to Mikisch, in January 2009, just one month after the divorce, his South Carolina employer reduced his annual salary to $19,500. He claimed that the salaries of other employees were similarly reduced. In March 2009, he resigned from that company and began seeking other employment. In August 2009, Mikisch relocated to California in search of employment. At some point, he obtained an executive position with another internet start-up company, but with only an expectation of future income rather than a current salary. He claimed he submitted about 180 applications for employment over a two-year period, but he only managed to find income-producing work sporadically and was paid through contractual and commission agreements rather than a steady salary.

After ten months in California, Mikisch returned to New Jersey to focus his job search on the East Coast. To facilitate that effort and his time with their daughter, Holst-Knudsen allowed Mikisch to stay at the former marital home from May to September 2010. Mikisch claimed that he cared for their daughter at that time in lieu of paying child support. Holst-Knudsen responded that a nanny was employed to care for the child at all times. In September 2010, Mikisch returned to California and began living with a woman, whom he subsequently married.

Mikisch had stopped making child support payments in March 2009. According to Holst-Knudsen, he had paid nothing through the time of argument in the trial court on her enforcement motion, January 28, 2011. According to Mikisch, he made a few payments, including compensating the child's nanny and paying other expenses of the child, for which he sought credit against his child support arrears. Holst-Knudsen referenced the provisions of the marital settlement agreement that required him to share in expenses of the child, and she claimed he owed much more than he had paid. Mikisch did not expressly dispute that he was more than $41,000 in arrears on child support payments at the time of the cross-motions.

After he moved out of New Jersey, Mikisch did not consistently exercise his parenting time as scheduled by the parties' agreement. He said he could not afford the cost of travel to New Jersey every month. Holst-Knudsen financed several trips for Mikisch to spend time with their daughter, and she allowed him to use her car while he was in New Jersey and also paid for hotel accommodations on some occasions. In addition, she paid for the child's trips out of state, accompanied by her nanny, to spend time with Mikisch. In her motion, Holst-Knudsen claimed that the parenting schedule should be reduced because the child was emotionally harmed by Mikisch's failure to spend parenting time with her as the parties had contemplated in their agreement. After Mikisch filed opposition and his cross-motion to reduce child support, Holst-Knudsen filed reply papers that included a certification from the nanny accusing Mikisch of indulging in excessive drinking of alcohol and other misdeeds while with the child.

In support of his cross-motion to reduce child support, Mikisch submitted his own factually-detailed certification explaining his job search and the sources of his sporadic income. He also submitted a case information statement (CIS); his 2009 tax returns, W2s, and 1099s indicating retirement account distributions; a series of bank statements; and a few paystubs from his temporary positions. The 2009 tax return showed wages, salary, and similar income totaling less than $10,000 and an adjusted gross income of $48,106, which included an early IRA distribution of more than $41,000. For 2010, Mikisch had not yet filed a tax return, but his CIS declared net annual income of $12,800.

The CIS, however, contained no information accounting for his shelter, food, or other common expenses. It listed transportation and a few other personal expenses totaling $4,900 per month, including a child support obligation of $3,000 per month to Mikisch's older child from a prior marriage. It also indicated that Mikisch's only asset of note was a motorcycle, although other financial documents indicated he had a Bank of America savings account and Merrill Lynch and Fidelity retirement accounts. At oral argument on the cross-motions, Mikisch stated that his savings account had a balance of $200 and that he had been compelled to withdraw the funds from his retirement accounts. He also claimed he had no personal shelter expenses because he was living with his new wife, her residence did not have a mortgage debt, and she paid the other expenses.

The judge ruled orally on the cross-motions and subsequently issued the February 9, 2011 order from which the appeal is taken. Holst-Knudsen received a credit of more than $30,000 toward her continuing obligation to Mikisch from equitable distribution of their marital property. After that and other adjustments, Mikisch's child support arrears were fixed at $28,339.50. He was ordered to pay $100 per week towards the arrears through the Essex County Probation Department.

Prospectively, his child support obligation was reduced from $525 per week to $250 per week. The court indicated the reduction would be "temporary" and would apply only until Mikisch obtains gainful employment, at which time Holst-Knudsen may move to reinstate the child support terms of the marital settlement agreement. The court stated that the reduction was based upon its finding of changed circumstances as documented by Mikisch's 2009 federal tax return and the declarations in his certification. Although future child support ...


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