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Straile v. Hanley

Superior Court of New Jersey, Appellate Division

July 22, 2013

JOSEPH STRAILE, Plaintiff-Respondent,
v.
RUTH HANLEY, Defendant-Appellant/ Cross-Respondent, and JOSEPH STRAILE and DORIS STRAILE, Respondents/ Cross-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1306-00.

Proskurchenko Law Group, LLC, attorneys for appellant/cross-respondent (Ksenia V. Proskurchenko, on the brief).

Ellen Jo Gold, attorney for respondent. Robert Ricci, Jr., attorney for respondents/ cross-appellants.

Before Judges Parrillo and Maven.

PER CURIAM

Defendant/appellant Ruth Hanley (Hanley) and respondents/cross-appellants, Joseph Straile, Jr. and Doris Straile (the grandparents), appeal the Chancery Division, Family Part order dated November 29, 2010, that recalculated Hanley's child support obligation payable to the grandparents, established the arrears payment and tax dependency exemption, and denied grandparents' counsel fees, among other things. We affirm, in part, and remand for the trial court to reconsider the child support calculations and the appropriate incomes and credits to be applied for each party.

A.

The relevant facts follow. Joseph Straile (the father) and Hanley divorced on March 19, 2001. In their Final Judgment of Divorce, the grandparents received joint legal and primary physical custody of the parties' three children, Amber, Alice, and James.[1] Hanley moved to Florida while the father lived with the grandparents and the children in New Jersey. Pursuant to the Property Settlement Agreement, the father and Hanley consented to make weekly contributions of child support to the grandparents. Hanley was obligated to pay $75 per week and the father paid $203 per week. These obligations were not determined pursuant to the New Jersey Child Support Guidelines. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A at pp. 2541-64 (2013). In October 2003, the court accepted their Consent Order[2] increasing Hanley's child support obligation to the grandparents in the amount of $125 per week.

Around July 2009, Hanley moved back to New Jersey from Florida. It is undisputed that Alice, the middle child, began living with Hanley in September 2009.

On June 14, 2011, the grandparents filed a Notice of Motion to Enforce Litigant's Rights to enforce Hanley's child support order, establish the amount of arrears owed by her and set a payment towards those arrears, and to begin future child support payments through the probation department. On August 25, 2011, Hanley filed a cross-motion seeking to: (1) modify the child support obligation for Amber and James commensurate with her income and ability to pay; (2) adjust her arrearages; (3) award her physical custody of Alice; (4) establish a parenting time schedule between her and James; (5) direct the father to pay child support for Alice; (6) permit her to claim Alice and James as dependency exemptions on her tax returns; and (7) grant any any other equitable relief. The father responded with a certification.[3]

Following oral argument, the judge rendered an oral opinion on November 29, 2011, followed by a written order, in which he: (1) established Hanley's arrearages owed to the grandparents at $22, 000 to be paid via income withholding through the probation department at the rate of $100 per week; (2) recalculated Hanley and the father's respective child support obligations to the grandparents at $81 from Hanley and $163 from the father; (3) modified custody regarding Alice to continue joint legal custody with the grandparents but awarding Hanley physical custody of the child; (5) established that Hanley shall have parenting time with James; (6) allowed Hanley to claim Alice as a dependency exemption, while the grandparents retained Amber and James as exemptions until James is the only unemancipated child, at which time the parties would alternate; (7) ordered that the father would pay $149 weekly child support for Alice to Hanley via income withholding through the probation department; and (8) denied the grandparents' request for counsel fees.

B.

After the judge declined to consider Hanley's motion for clarification, she subsequently filed this appeal and argues:

I. THE TRIAL COURT ERRED IN FIXING ARREARS OWED TO THE . . . GRANDPARENTS IN THE FULL AMOUNT FOR THREE CHILDREN, NOTWITHSTANDING THE CHANGE OF RESIDENTIAL CUSTODY OF [ALICE], WHO HAS BEEN LIVING WITH [HANLEY] SINCE SEPTEMBER SINCE 2009, BUT FOR WHOM THE . . . ...

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