DONNA M. MAKARA v. MATTHEW J. MARINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5334-04T15334-04T1

DONNA M. MAKARA,

Plaintiff-Appellant,

v.

MATTHEW J. MARINO,

Defendant-Respondent.

___________________________________

 

Submitted February 1, 2006 - Decided March 20, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Chancery Division, Family

Part, Middlesex County, Docket No.

FD-12-281-01-F,

Brause, Brause & Ventrice, attorneys

for appellant (Peter Ventrice, of

counsel and on the brief).

Nemergut & Duff, attorneys for respondent

(Howard Duff, of counsel and on the

brief).

PER CURIAM

Plaintiff, Donna M. Makara, appeals from the judgment of the Family Part denying her application to compel defendant, Matthew J. Marino, to pay a proportionate share of their seven-year-old son's Catholic school tuition. Plaintiff also seeks reversal of the trial court's order awarding defendant, as the non-custodial parent, the right to claim the child as a tax exemption on his personal income tax returns, for years ending with an odd number. After reviewing the record before us, and in light of prevailing legal standards, we affirm.

Before addressing the legal issues, we will briefly summarize the salient facts. Although never married, plaintiff and defendant were romantically involved, and had a son together in 1999. The parties agreed to joint legal custody of their son, with plaintiff having physical custody. Defendant began paying child support to plaintiff immediately after the birth of their son. This arrangement did not last. By order dated September 7, 2001, the Family Part directed defendant to pay child support through wage garnishment, retroactive to April 1, 2001. The court also ordered defendant to make a series of lump sum payments to reduce an unspecified amount of arrears, with a final payment due no later than December 31, 2001.

Despite these court-ordered arrangements, defendant failed to keep up with his support obligations. On April 20, 2005, defendant filed a motion seeking to: (1) reduce his child support obligation to $66 per week; (2) claim his son as a dependent on his personal tax return for those years ending in an odd number; and (3) vacation with his son during the first three weeks of August.

Plaintiff filed a cross-motion seeking an order: (1) adjudicating defendant to be in violation of the previous child support order; (2) directing defendant to pay child support arrears in the amount of $2,843.83; (3) compelling defendant to pay his proportionate share of the cost of the child's medical and dental insurance, and any uncovered medical and dental expenses; and (4) compelling defendant to pay a proportionate share of the child's Catholic school tuition. Both sides also requested that the court award them counsel fees.

The parties settled most of these issues. The two issues that are the subject of this appeal, (the Catholic school tuition and the child's tax exemption), were decided by the court after considering oral arguments from counsel. Judge Mayer gave the following explanation for her rulings:

With respect to the tax deduction, I have read the IRS Code and I understand that the tax credit only mom can benefit from because she is the custodial parent in which the child resides for six months. So, only mom is going to get that tax credit. And I'm also aware of the fact that there have been monies that went to mom for childcare when the child really wasn't in childcare. He was out of school and didn't need that extra childcare. And Mr. Duff is right. Mr. Mario can never recoup that. There's no way to give it back; nor am I going to order that.

But this is what the Court is going to do considering all of the equities and the fairness, mom took the deduction for Travis for 2004. Dad will only get the deduction for Travis in odd number years provided dad has paid his child support in full by that year. If you're one penny in arrears, sir, you don't get it. Mom shouldn't have to chase you. Probation shouldn't have to chase you. You have to be fully paid to cause that -- you to have it in odd years. So, in even years, mom gets the exemption. You always get the credit madam. But, the exemption would be in even years for you. Dad will only benefit in odd years provided child support is paid in full, every penny of it.

As to the Catholic school, under the child support guidelines, there has been no articulated reason for the child to attend Catholic school, other than mom's expressed desire. She hasn't advanced there's particularly something onerous about the public school system, or that there's a special need of the child to attend the Catholic school. And under the appendix to the child support guidelines, I have not gotten any information that would suggest that it is inappropriate to send Travis to the public school. If mom chooses to send him to parochial school, that's certainly her choice.

But given that there is nothing in advance to the Court that Travis has special needs or is somehow required to attend Catholic school by some reason, there's absolutely no basis in the guidelines for ordering private school tuition to be paid by dad when the financial circumstances are such that there really isn't enough money to cause that to happen.

The party seeking a change in child support obligations bears the burden of establishing the circumstances that warrant the modification. Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). Here, as correctly noted by Judge Mayer, plaintiff failed to present any reasons to justify imposing upon defendant the cost of Catholic school education. We also conclude that the decision to permit defendant to claim the child as an exemption for those years ending in an odd number fell within the sound discretion of the trial court. Gwodz v. Gwodz, 234 N.J. Super. 56, 60-62 (App. Div. 1989). Under these circumstances, we discern no legal basis to conclude that the court mistakenly exercised that discretion.

 
Affirmed.

(continued)

(continued)

5

A-5334-04T1

March 20, 2006