On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1561-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Kennedy.
Defendant appeals from a post-judgment order that fixed the amount plaintiff was required to pay toward child support arrears on a weekly basis and denied her request to incorporate an agreement between the parties into an order. We affirm in part and reverse in part.
The parties agreed to the terms of a property settlement agreement (PSA), dated May 1, 1998, which was incorporated into their Judgment of Divorce (JOD) in September 1999. The PSA provided that plaintiff was required to pay defendant $160 per week in child support for their two children, allocated as $80 per child, until the emancipation of the youngest child. Paragraph 4 of the PSA states:
The Wife shall be entitled to claim Joseph as an exemption in the filing of her federal and state income tax returns and the Husband shall be entitled to claim Michael as an exemption of his federal and state income [tax] returns beginning in the tax year 1997.
The third provision of the PSA relevant to this appeal addressed plaintiff's obligation to provide health insurance coverage for the children. Paragraph 7 states in pertinent part:
The Husband shall continue to provide medical health insurance and cooperate with submission of any claims or obtaining and confirming insurance coverage. . . . The coverage for the children shall continue so long as the Husband is obligated to support the child in accordance with this Agreement.
Plaintiff became delinquent in his child support. In January 2011, the Probation Division sought enforcement of plaintiff's support obligation. An order was entered that reflected plaintiff's arrearage as $9550 as of January 6, 2011, and ordered a garnishment of his unemployment benefits. The order included in the record does not state what amount plaintiff was required to pay for support or toward arrears.
In May 2011, plaintiff filed a motion to decrease his child support obligation on the ground that Joseph was out of school and working full-time. In his motion, he identified his weekly support obligation as $214 per week. He did not indicate what portion of this obligation, if any, was a required payment toward arrears. Indeed, the case information sheet he submitted stated he paid $107 in weekly child support for each child.
Defendant filed a cross-motion, in which she agreed to the emancipation of their older son, and asked the court to retain plaintiff's weekly obligation of $214. In the letter she sent to the court, defendant stated that the weekly support obligation for each child was $87 and asked that the $87 that would have been payable for the emancipated child be applied to plaintiff's arrears, which now was $9686. Defendant also asked the court to modify the provision of the PSA incorporated in the JOD regarding the exemptions for the children so that she could claim her younger son as a dependent child. In her letter to the court, she explained:
[Plaintiff] breached various conditions listed in our decree and a couple of years ago [he] agreed to sign over his rights (Exhibit I) to claim Michael in lieu of providing health insurance coverage that was breached ...