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Anna King, F/K/A Anna Gerstenschlager v. David J. Gerstenschlager

August 16, 2012

ANNA KING, F/K/A ANNA GERSTENSCHLAGER, PLAINTIFF-RESPONDENT,
v.
DAVID J. GERSTENSCHLAGER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-820-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 5, 2012 - Before Judges Simonelli and Hayden.

Defendant David Gerstenschlager appeals from the February 4, 2011 Family Part order, which granted plaintiff Anna King a retroactive cost of living adjustment (COLA) for child support, permitted plaintiff to claim the children as dependents for tax purposes, required defendant to continue paying a proportionate share of the cost of the parties' children's extra-curricular activities, and awarded plaintiff counsel fees and costs. Defendant also appeals from the June 6, 2011 order, which denied his motion for reconsideration. We affirm in part, reverse in part, and remand for further proceedings.

The parties were married on August 14, 1993. They have four children, who live with plaintiff in Indiana.

The parties entered into a Marital Settlement Agreement (MSA), which was incorporated into their April 15, 2002 final judgment of divorce. The MSA set defendant's child support obligation at $2500 per month, based on his "expected guaranteed income" of $175,000 for 2002. The parties acknowledged that this figure was above the New Jersey Child Support Guidelines (Guidelines) and did not include expenses related to the children's extracurricular activities, which the MSA defined, without limitation, as "ballet lessons, swimming lessons, hobbies, clubs, school trips and all other expenses associated therewith." The MSA required defendant to pay seventy-five percent of those expenses, and plaintiff to pay twenty-five percent.

The MSA recognized that defendant's future income may increase beyond $175,000, and thus provided for a recalculation of child support using the Guidelines. In order to recalculate the amount, the MSA required defendant to provide documentation of his income for the prior year by August 15 of each year. If the recalculation revealed that the actual Guidelines amount exceeded the $2,500 per month, defendant had to pay the difference to plaintiff in a lump sum by September 1. The MSA also provided that at "such time as child support is recalculated," the parties would divide the cost of extracurricular activities "in proportion to their relative after tax income."

The MSA also contained a COLA provision:

In accordance with [Rule] 5:6B, the Husband's child support obligation shall be adjusted every two (2) years to reflect the cost of living. The cost-of-living adjustment shall be based on the average change in the Consumer Price Index for the metropolitan statistical areas that encompass the Wife's regional area and shall be compounded.*fn1

In addition, the MSA permitted plaintiff to claim the children as dependents for income tax purposes in all tax years after 2001. Further, if either party failed to cure a breach of the MSA or a default thereunder, that party would be liable for the other party's attorney's fees, "resulting from or made necessary by the bringing of any suit or other proceeding to secure such payment or enforce any such obligation, provided" that such suit or other proceeding resulted in a favorable "[judgment], decree, award or order."

In February 2010, plaintiff filed a motion, seeking to compel defendant to produce income documentation for the years 2006 to 2009, a retroactive increase in child support for the years 2006 to 2009, and a COLA for child support on a bi-annual basis for the years 2004 to 2009, based on new Consumer Price Index (CPI) rate "every other year (commencing in 2004) as required by the . . . [MSA]," meaning that 2005 was deemed to have the same rate as 2004 just as Rule 5:6B(a) prescribed, and similarly for 2007 and 2009. Plaintiff also sought counsel fees and costs.

Defendant filed a cross-motion, seeking to claim the children as dependants in alternating tax years, among other requested relief not relevant to this appeal. He argued that he had agreed in the MSA to have plaintiff claim the children as dependents for tax purposes because his income level fully phased out that deduction; however, a recent change in the relevant tax law gave the deduction some value to him, and was thus a change in circumstances. He also claimed that he had tried, unsuccessfully, to contact plaintiff prior to the motion to resolve the issues she raised in her motion.

The parties eventually agreed to the amount of the retroactive child support increase. However, they continued to disagree as to whether plaintiff was entitled to a COLA for child support and as to the amount of the COLA arrearage, which plaintiff calculated at $32,239.47, and defendant calculated at $9,481.30.

In a February 4, 2011 order, without explanation, the trial judge granted plaintiff a retroactive COLA of $32,239.47 ending with the year 2009, based on the CPI for plaintiff's region of residence, not the Guidelines. The judge also granted plaintiff's request to continue claiming the children as dependents in all tax years, ordered defendant to continue paying his proportionate share of the costs of ...


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