JEFFREY WARMKE v. STEPHANIE SMITH WARMKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4635-06T24635-06T2

JEFFREY WARMKE,

Plaintiff-Appellant,

v.

STEPHANIE SMITH WARMKE,

Defendant-Respondent.

_____________________________

 

Argued April 21, 2008 - Decided

Before Judges Collester and C.L. Miniman.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, Docket No. FM-12-22-07M.

James P. Yudes argued the cause for appellant

(Mr. Yudes, attorney; Kevin M. Mazza, on the brief).

Neil S. Braun argued the cause for respondent

(Gomperts & Braun, attorneys; Mr. Braun and

Brian McFadden-DiNicola, on the brief).

PER CURIAM

Jeffrey Warmke, former husband of defendant Stephanie Smith Warmke, appeals from a February 22, 2007, application in aid of litigant's rights filed by defendant and a cross-motion filed thereafter by plaintiff father. Defendant sought an order fixing the amount of childcare arrears due from plaintiff; modification and enforcement of child support; modification to parenting time; modification of the life insurance required by the May 21, 1996 property settlement agreement (PSA); and an award of counsel fees. Plaintiff opposed all of the relief sought by defendant and filed a cross-motion for an order compelling contribution to summer camp expenses, a hearing aid for the older son and medical expenses. Plaintiff also sought an order compelling defendant to share the transportation reimbursement from the public school with plaintiff, who also provided transportation, and an award of counsel fees.

The Family Part judge required additional information to recalculate child support and denied defendant's request for reimbursement for childcare for the period from 1997 through February 1999, without prejudice to allow for production of documentation proving the expenses for that period. The judge granted defendant's request for reimbursement of childcare expenses from February 1999 through June 1999 and determined she was entitled to an additional $450 from plaintiff for childcare. The judge then denied defendant's request for reimbursement of childcare expenses from June 1999 through September 2003 without prejudice to allow for presentation of additional proofs. With respect to childcare expenses from September 10, 2003 through June 16, 2005, the judge found that defendant was entitled to reimbursement in the amount of seventy-five percent of $35,675.

As to plaintiff's cross-motion for sharing transportation costs, the judge denied relief without prejudice to submission of additional proofs by way of certifications because there was insufficient evidence to determine the percentage of transportation provided by each party and, additionally, the issue was significantly disputed. She did determine that any credit due plaintiff for transportation was to be applied to childcare arrears. The judge denied defendant's request for additional life insurance, but required plaintiff to submit proofs demonstrating that the life insurance he carried was equivalent to that required by the PSA. She also denied plaintiff's request for summer camp expenses.

On appeal, plaintiff asserts that the trial court erred by (1) failing to evaluate the reasonableness of the childcare expenses, (2) impermissibly amending the parties' 1999 settlement agreement, (3) relying upon hearsay evidence contained in defendant's certification, (4) failing to bar defendant's claims under the equitable doctrines of laches and estoppel, (5) failing to hold a plenary hearing to determine issues of disputed fact, and (6) denying plaintiff's request for reimbursement of summer camp costs. We reverse and remand for a plenary hearing.

The parties were married on June 16, 1984. Two children were born during the marriage: one son born September 16, 1991, and a second son born January 4, 1994. The older son suffers from Down Syndrome, Pervasive Developmental Disorder, anxiety disorder and seizures, as well as hearing and vision impairments.

The parties divorced on May 21, 1996. They share joint legal custody of the children. Defendant has primary physical custody, and plaintiff receives liberal parenting time. Pursuant to the PSA, plaintiff had parenting time with the boys on alternating weekends, from Friday night through Monday morning, and every Wednesday evening. Since 1999, the parties have reversed their parenting time arrangement during the school summer holiday, with plaintiff having primary physical custody and defendant visitation. Both boys attended camp during the summer months. Defendant contributed twenty-five percent to the cost of camp during the summers of 1999 and 2000.

At the time of the divorce, both parties worked outside of the home, and the children were cared for by a Ms. Maytidu at a cost of $250 per week. Pursuant to the PSA, plaintiff paid $175 of that amount. The cost of childcare subsequently increased to $300 per week, or $1200 monthly.

In 1999, the younger child began attending school full-time, and the parties agreed that the full-day care provided by Ms. Maytidu was no longer necessary. They entered into a written stipulation of settlement on February 25, 1999, that specifically provided that these childcare expenses were no longer warranted and would not continue after the end of the 1998-1999 school year. The stipulation stated: "Appropriate after-school childcare agreements will be identified by both parties for the 1999-2000 school year."

Plaintiff remarried in September 1999. At or about the same time, defendant hired a college student studying special education to care for the boys at a cost of $150 per week. Plaintiff contributed $225 per month toward those expenses. However, the student was unable to control the older son, and defendant was required to make other childcare arrangements. In early 2000, she rehired Ms. Maytidu at a cost of $300 per week. Despite the increase in cost, plaintiff continued to contribute $225 per month toward childcare expenses.

Defendant was laid-off in November 2001, and as a result, work-related childcare was no longer needed. In August 2003, defendant once again secured full-time employment with the Association of Retarded Citizens (ARC) of Essex County. Defendant sent plaintiff a letter informing him of her impending return to work and her intention to rehire Ms. Maytidu to care for the children at a cost of $320 per week.

In response, plaintiff wrote a letter expressing his dissatisfaction with defendant's decision to rehire Ms. Maytidu. He agreed to pay only seventy-five percent of the cost of the district-offered after-school program, or approximately $247.50 per month, provided that defendant provide "a receipt of payment from Ms. Maytidu detailing the dates and actual hours of service," that Ms. Maytidu include her social security number on all such receipts or invoices, and that Ms. Maytidu allow the parties to conduct a background check at their discretion.

Defendant did not comply with plaintiff's demands and continued to employ Ms. Maytidu. In September 2003, plaintiff provided defendant with a check for $250 for childcare expenses, which was never cashed. Thereafter, he did not contribute to the childcare expenses for 2003 through 2005. Meanwhile, Ms. Maytidu's salary was increased to $400 per week in September 2004 and to $450 per week in January 2005, the result being that Ms. Maytidu was paid an amount for her part-time employment in excess of defendant's full-time employment.

In September 2004, defendant entered into a "parent contract" with the Bloomfield school district, which reimbursed her $12,000 for the costs of the older son's transportation to the out-of-district McAuley School. In July 2005, defendant's position with ARC was changed to independent contractor status, which allowed her to manipulate her work schedule to be available to care for the boys before and after school. As such, childcare during defendant's working hours was no longer an issue.

Plaintiff argues that the trial court erred by failing to apply the standards for childcare set forth in the New Jersey Child Support Guidelines, Rule 5:6A, when establishing the amount of childcare arrears owed. In response, defendant asserts that the trial court properly disregarded the Child Support Guidelines where the parties did not rely upon those standards in creating their childcare agreement and further did not include childcare costs as an element of child support in their PSA.

We find that the motion judge correctly disregarded the Child Support Guidelines when interpreting the parties' childcare agreement. The parties divided their childcare expenses pursuant to a negotiated agreement and did not rely upon the Child Support Guidelines in doing so. If they had intended the Guidelines to apply, that intent should have been set forth in the PSA or clearly discernable from the language used. We find nothing in the record to support plaintiff's assertion that the standards and considerations set forth in the Guidelines were applicable. The clear division of childcare expenses in the PSA demonstrates the parties' intent to create their own arrangement.

Plaintiff asserts that the motion judge erred in ordering him to reimburse defendant for unsubstantiated childcare expenses without first evaluating the necessity and reasonableness of those expenses. We agree. The judge acknowledged that Ms. Maytidu's services were "more expensive," but found that "given the special needs of [the older son]," the additional expense was reasonable. Noting that Ms. Maytidu had been involved with the family for "over ten years," the judge added that "the years of care Ms. [Maytidu] has provided, have no doubt allowed the boys to attain a level of comfort with her that another caregiver could not offer."

However, the judge made no finding that the services provided by Ms. Maytidu were necessary rather than simply desirable to defendant. The court also did not consider the cost of her services as compared with appropriate alternatives at a lesser cost. Most significantly, the court did not consider the impact of the agreement embodied in the February 1999 stipulation of settlement on the issues of the necessity or reasonableness of Ms. Maytidu's services. In the stipulation filed with the court, both parties expressly agreed that the $1,200 monthly expense for the in-home childcare services of Ms. Maytidu would no longer be needed starting after September 1999 when the younger son started school. Instead, "[a]ppropriate after-school childcare arrangements will be identified by both parties for the 1999-2000 school year and the cost of after-school childcare programs will be shared by both parties, 75 percent by [father] and 25 percent by [mother]."

While we disagree with plaintiff that the agreement makes Ms. Maytidu's employment inappropriate or unacceptable, it does state that the expense of her childcare was no longer necessary once the younger child began school the following year. The judge appeared to ignore the language of the agreement that childcare expenses paid to Ms. Maytidu "shall not be necessary and will therefore not continue." Defendant's decision to rehire Ms. Maytidu at the same and later increased expense, clearly contradicts the plain language of the parties' agreement in the stipulation. However, the motion judge ignored this language and simply divided the incurred childcare costs between the parties in the percentages set forth in the parties' 1996 PSA and subsequent stipulation of settlement. There is no discussion of any changed circumstances that would relieve defendant from abiding by the clear language of the parties' agreement to discontinue the present childcare expense and jointly find an appropriate care arrangement. Defendant does not articulate any excuse, and a review of the record also fails to demonstrate any change in circumstances that would excuse defendant from the constraints of the parties' negotiated stipulation. Instead, the judge indicated that plaintiff was barred from challenging defendant's decision, stating that "[P]laintiff failed to take steps to compel the use of an alternate care provider" or "compel [Ms. Maytidu's] replacement." But plaintiff claims he did object to Ms. Maytidu's rehiring both in conversations with defendant and as demonstrated by his refusal to pay the cost of Ms. Maytidu. He asserts that both children were eligible for appropriate after-care programs in lieu of Ms. Maytidu's services.

We find that the issues of the necessity and reasonableness of childcare expenses were not properly determined by the motion judge. In light of the factual disputes in these material issues, a plenary hearing is required prior to determination of any childcare arrearages. See, e.g., Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998); Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). Furthermore, we conclude that plaintiff may be due a credit to any outstanding childcare arrears out of the $12,000 contract for school transportation. The parties are to submit proofs at the plenary hearing on the issue.

Finally, we have considered plaintiff's argument that the motion judge erred in refusing to grant his request for reimbursement by defendant of a portion of summer camp expenses. As provided in the 1999 stipulation, defendant was obliged to pay twenty-five percent of the children's summer camp expenses as part of a reverse parenting schedule. While the stipulation specifically refers to the summer of 1999, plaintiff argues that since the reverse parenting agreement has continued every summer since that time, defendant had an obligation to pay her portion of the cost for the subsequent years.

Defendant argues that although the parties continued to reverse their parenting time arrangement during the summer months, the financial obligations included in the February 1999 stipulation are limited to 1999. The trial court agreed with defendant's reading of the 1999 stipulation, concluding that "[w]hile the court certainly encourages defendant to contribute to the cost of beneficial activities for her children . . . the court will not apply the parties' stipulation beyond the boundaries agreed to."

The proofs submitted by plaintiff indicate the parties did reach agreement to continue the 1999 financial arrangement for summer camp costs contrary to defendant's assertion that the only agreement on the issue was as to the summer of 1999. Once again, we find a factual dispute on a material issue requiring a plenary hearing.

In light of our decision, we do not consider plaintiff's other arguments on appeal.

Reversed and remanded. We do not reserve jurisdiction.

(continued)

(continued)

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A-4635-06T2

January 26, 2009