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Bischoff v. Bischoff

Superior Court of New Jersey, Appellate Division

July 18, 2013

ROBERT R. BISCHOFF, Plaintiff-Appellant,
v.
CAROL L. BISCHOFF, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-403-10.

Michele Walter, attorney for appellant.

Carol L. Bischoff, respondent pro se.

Before Judges Graves and Guadagno.

PER CURIAM

Plaintiff Robert R. Bischoff appeals from the final judgment of divorce entered by the Family Part on March 1, 2012, after a trial. He challenges the trial court's calculation of his child support obligation, claiming the court failed to credit him with additional overnights and abatement during the children's vacations. We affirm.

The parties were married in 1997 and have two children who are now sixteen and nine. Plaintiff filed for divorce in 2009 and the case came to trial in February 2012. After testimony began, the parties settled most of the issues, reserving certain aspects regarding parenting time and child support for the trial court to decide.

In a marital settlement agreement dated February 14, 2012, the parties agreed to joint legal custody of the two children, with defendant being the parent of primary residence. During the school year, from September through June, plaintiff has parenting time Tuesday and Thursday evenings as well as on alternate weekends. The parties agreed that the weekends would begin on Friday after school but could not agree when the children would return to defendant. Defendant wanted the children returned to her on Sunday evening while plaintiff sought to extend his visitation until Monday.

Judge Thomas C. Miller took additional testimony on the disputed issues and interviewed the oldest child. After considering all the statutory factors, Judge Miller denied plaintiff's request for the Sunday overnight and set his child support obligation at $238 per week. On appeal, plaintiff presents the following arguments:

POINT I
THE COURT'S INTERPRETATION OF THE TERM "OVERNIGHT" CONSTITUTED HARMFUL ERROR BY DENYING THE APPELLANT THE ABILITY TO HAVE CHILD SUPPORT CALCULATED TO INCLUDE AN ADDITIONAL OVERNIGHT ON SUNDAY EVEN THOUGH THE APPELLANT HAS THE CHILDREN FROM SUNDAY AT 12:00 A.M. TO 7:00 P.M. WHICH [IN] APPENDIX IX-A STATES THAT AN OVERNIGHT MEANS THE MAJORITY OF A 24-HOUR DAY (I.E. MORE THAN 12 HOURS).
POINT II
THE COURT'S MISAPPLICATION AND FAILURE TO APPLY THE FACTS TO THE APPROPRIATE SECTIONS OF THE APPENDIX IX-A CONSTITUTES HARMFUL ERROR BY DENYING THE APPELLANT THE ABILITY TO HAVE HIS CHILD SUPPORT OBLIGATION EITHER DEVIATED APPROPRIATELY OR POTENTIALLY CALCULATED TO INCLUDE A SHARED PARENTING GUIDELINES APPROACH THAT COMPENSATES THE APPELLANT FOR SOME OF THE FIXED COSTS THAT HE INCURS THROUGHOUT THE YEAR.
POINT III
THE COURT DID NOT FULLY APPRECIATE THE CONCEPT OF ABATEMENT OF VACATIONS AND EXTENDED PARENTING TIME UNDER THE APPROPRIATE SECTIONS OF THE APPENDIX IX-A, SECTION 13(C) BECAUSE THE COURT FAILED TO UNDERSTAND THE ABATEMENT ONLY APPLIES TO THE NON-CUSTODIAL/PARENT OF ALTERNATE RESIDENCE WHICH CONSTITUTES HARMFUL ERROR BY DENYING THE APPELLANT THE ABILITY TO HAVE HIS CHILD SUPPORT OBLIGATION DEVIATED APPROPRIATELY.

We have considered these arguments and affirm the judgment substantially for the reasons stated in Judge Miller's comprehensive letter opinion of March 1, 2012. Judge Miller's decision is adequately supported by the substantial credible evidence in the record. R. 2:11-3(e)(1)(A). We add only the following.

The factual findings of the Family Part are accorded particular deference because of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Brennan v. Orban, Jr., 145 N.J. 282, 300-01 (1996)). Findings by the trial court are affirmed "when supported by adequate, substantial, credible evidence" in the record as a whole. Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The sole parenting worksheet is used in a shared parenting arrangement when the parent of alternate residence (PAR) enjoys "below the substantial equivalent of two or more overnights per week (28% of overnights) . . . ." Child Support Guidelines, Pressler and Verniero, Current New Jersey Court Rules, Appendix IX-B to R. 5:6A at 2565 (2013). The shared parenting worksheet may be employed where the

PAR has or is expected to have the child for the substantial equivalent of two or more overnights per week over a year or more (at least 28% of the time) and the PAR can show that separate living accommodations for the child are provided during such times (i.e. evidence of separate living accommodations maintained specifically for the child during overnight stays).

[Current N.J. Ct. Rules, supra, Appendix IX-A at 2554.]

Section 14(b)(1) of Appendix IX-A defines "overnight" as "the majority of a 24-hour day (i.e. more than 12 hours)." Ibid. Judge Miller rejected plaintiff's argument that his visitation, from Friday after school through Sunday at 7:00 p.m., should count as three overnights.[1] We agree with Judge Miller that plaintiff's argument here represents a "twisting and perversion of the guidelines to skew a desired result." Decisions regarding the use of this worksheet are an abuse of discretion only if a manifest error or injustice occurs. No such error occurred here.

Plaintiff's remaining arguments lack sufficient merit to warrant further consideration in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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