IRENA T. COKA-MORIN v. STEPHEN A. MORIN

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0723-04T5

IRENA T. COKA-MORIN,

Plaintiff-Appellant,

v.

STEPHEN A. MORIN,

Defendant-Respondent.

 

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September 27, 2005

Submitted September 13, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-1-36-00C.

Arlene Gilbert Groch, attorney for appellant.

Michele C. Verno, attorney for respondent.
 
PER CURIAM

Plaintiff Irena T. Coka-Morin appeals from the decision of the Chancery Division, Family Part, denying her post-divorce motion to be designated the Parent of Primary Residence (PPR) and to be awarded child support for the child of her marriage to defendant Stephen Morin. We reverse and remand.
The following facts are relevant to the issues advanced on appeal. The parties were married in 1999 and divorced in 2001. One child, a girl, was born of the marriage in May 1999. As a part of the Judgment of Divorce (JOD), the parties reserved the final resolution of the issue of child custody and child support pending an evaluation by Dr. Janice Colton, a psychologist whom the parties had jointly retained. In the interim, the parties consented to abide by a shared parenting agreement that they had reached during mediation of a variety of issues before the entry of the JOD. According to that agreement, the child lived with each of her parents on a rotating schedule, alternating her stays with each of them on Saturday through Tuesday and on Wednesday through Friday from one week to the next. The parties also agreed to reserve the question of child support, with neither of the parties paying or receiving child support, but with defendant providing health insurance for the child through his employment and with the parties sharing any uninsured medical expenses for the child equally.
On June 28, 2001, Dr. Colton issued her report. She recommended that the parties continue to share joint physical and legal custody of the child, an arrangement to which they agreed. As a result, the child continued to spend an equal amount of time with each of her parents in accordance with the rotating schedule. When it was time for the child to begin to attend a preschool program, the parties compromised on the one in which she would be enrolled and shared responsibility for dropping her off and picking her up, again in accordance with their shared parenting schedule.
In May 2003, plaintiff filed a motion seeking an order giving her primary physical custody of the child, designating her as the child's PPR and awarding her child support. Her motion respecting custody was based on her assertion that the child would be starting school and would need more stability in her living arrangements than the shared parenting plan would afford, and on her contention that defendant did not spend as much time with the child as she did during his parenting time because of the demands of his work schedule. More specifically, she asserted that defendant often left the child with babysitters or other care givers and that he took vacations without including the child. Plaintiff's application for child support was based on the disparity in the incomes of the two parties.
Defendant opposed plaintiff's motion and cross-moved for an order seeking to enforce the shared parenting agreement and to compel the parties to participate in mediation to resolve the custody issue. The court first granted defendant's application in part and referred the parties to mediation, reserving on the custody and child support applications. At the time, plaintiff wanted to have custody of the child on weekdays, with defendant having parenting time only on weekends, while defendant, who was often required to work on weekends, preferred that the schedule embodied in the shared parenting arrangement be continued. The mediator recommended that one of the parents be designated as the primary custodial parent as they were unable to compromise on their respective positions. Because the parties could not resolve their dispute through mediation, the Family Part judge conducted a hearing on the issue of custody, deferring any consideration of the child support request pending his decision on the custody application.
On August 31, 2004, the judge found that the shared parenting arrangement was benefiting the child and that there were no changed circumstances that would support altering it. He therefore denied plaintiff's motion to award her custody of the child and to designate her as the PPR. He further denied plaintiff's motion for an award of child support, reasoning that neither parent was entitled to support as long as custody of the child was shared. His order effectuating these findings and conclusions was entered on September 3, 2004.
On appeal, plaintiff does not challenge the judge's decision to deny her application for primary physical custody of the child. Rather, she argues on appeal only that she was entitled to an order designating her as the PPR and awarding her child support.
In addressing plaintiff's application, the judge first concluded that plaintiff was not entitled to a change in the shared parenting schedule that would result in having the child reside with plaintiff on weekdays and with defendant on weekends. He based this aspect of his decision on his finding that plaintiff had failed to demonstrate that there was a "substantial change, some difference in their circumstances from that which existed when they put this plan into effect." He noted that the only change in circumstances that had been suggested by plaintiff was the fact that the child would soon begin attending a full day of kindergarten rather than a half-day preschool program. He concluded that this change in circumstances was insufficient to support plaintiff's request, particularly in light of defendant's work schedule. Although plaintiff does not directly challenge this finding or this conclusion on appeal, she argues that the judge erred when he did not separately consider her request that she be designated as the PPR. We agree.
We first note that a PPR is the parent, in a shared parenting arrangement, with whom a child resides for more than fifty percent of the time or, if a child spends equal time with each parent, the parent with whom the child resides while attending school. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A 14(b)(1) to R. 5:6A at 2314 (2006). The parent who is not the PPR is called the parent of alternate residence (PAR). Id. at 14(b)(2). We note further that the Guidelines presume that one parent will be designated the PPR and the other will be designated the PAR, and although the designation is significant for purposes of determining issues relating to child support, see id. at 14(g)(4), it is not necessarily true that either parent will be responsible for paying child support in a true shared parenting arrangement. See Benisch v. Benisch, 347 N.J. Super. 393, 400-01 (App. Div. 2002).
Our discussion of these issues in Benisch, supra, 347 N.J. Super. at 400-01, is particularly appropriate. There, as here, the child resided with the parents in a shared parenting arrangement. The parents, while each contributing to the child's support during the time when the child resided in their respective homes, had significantly different incomes. Id. at 395. We noted there that the designation of one parent as the PPR was significant in that the PPR, pursuant to the Guidelines, was presumed to bear the "controlled costs" as defined in the Guidelines themselves. Id. at 397 (citing Guidelines, supra, Appendix IX-A 14(f)).
In Benisch, we recognized that the designation of one parent as the PPR would have a significant impact on the child support calculation. Id. at 398-99. We concluded that the shared parenting Guidelines for child support were nonetheless applicable "provided only that the court accounts for and makes an appropriate adjustment to reflect the unusual facts respecting selection of a PPR and PAR" where the living arrangements for the child were truly equal. Id. at 400.
We reach a like conclusion here. In this matter, the judge believed that his decision to reject plaintiff's application to fundamentally alter the shared parenting schedule also resolved the question about designation as the PPR when, in reality, it did not. At a minimum, the judge should have considered whether, notwithstanding the shared parenting schedule, plaintiff should have been so designated.
Second, the judge concluded that plaintiff was precluded from making an application for child support simply because the parties were equally sharing parenting time. Although it might be true, in an individual case, that two parents contribute equally to the support of the child in the context of a shared parenting agreement, the Guidelines make clear that child support does not depend on the time each parent spends with the child but rather upon the resources of each parent that are available for the benefit of the child. The Guidelines presume that the parent with the greater income will contribute more to the support of the child, see Guidelines, supra, Appendix IX-A 1 at p. 2301, 4 at p. 2302, and this remains true regardless of the specific living arrangements for the child. In particular, however, in order to properly account for the child's living arrangements and the cost to each parent of maintaining a home for the child in the shared parenting context, as the court noted in Benisch, careful attention to the three categories of costs, see Benisch, supra, 347 N.J. Super. at 400-01; Guidelines, supra, Appendix IX-A 14(f) at p. 2315-16, is essential to the proper application of the child support formula.
Because the judge believed that neither parent could be designated the PPR and that neither could be responsible to contribute to the support of the child in light of the shared parenting arrangement, he did not address either of these aspects of the requested relief. Based upon our contrary interpretation, we are constrained to reverse his order denying plaintiff's motion to the extent that it rejected without analysis her application to be designated as the PPR and for a child support order. We therefore remand this matter for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.

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