KENNETH MULLARNEY v. KRISTEN MULLARNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0980-09T3

KENNETH MULLARNEY,

Plaintiff-Appellant,

v.

KRISTEN MULLARNEY, n/k/a WILLIAMS,

Defendant-Respondent.

_____________________________________

November 30, 2010

Submitted October 20, 2010 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1952-98A.

Law Office of Ira M. Senoff, LLC, attorneys for appellant (Ira M. Senoff, of counsel; Krysta Berquist, on the brief).

Kristen Williams, respondent pro se.

PER CURIAM

Plaintiff Kenneth Mullarney appeals from the Family Part's order of September 25, 2009, pertaining to physical custody of the parties' then fifteen-year-old daughter and payment of child support. We affirm in part and reverse in part.

The parties were married in 1993. Their only child was born in 1994. They divorced in 1999. After the divorce, their daughter lived primarily with Ms. Williams and spent alternate weekends with Mr. Mullarney. The judgment of divorce required that Mr. Mullarney pay child support of $280 per week, which consisted of $112 in child care expenses of Ms. Williams and $168 in general support.

In the spring of 2009, the parties communicated by email and telephone about making a change in their daughter's residential status in an effort to address difficulties she was experiencing with her school work. They agreed to a trial period for their daughter to live with Mr. Mullarney and his wife. On May 5, 2009, the daughter moved to Mr. Mullarney's residence. Child support, however, continued to be deducted from Mr. Mullarney's paychecks at the rate of $436 every two weeks.1

The parties continued to communicate by email about the change in residential custody and the payment of child support. In July 2009, they agreed by their emails that their daughter would continue to live with Mr. Mullarney for the coming school year and attend the public high school in his municipality. They appear to have agreed to consider her progress and her personal preferences at the end of the school year and determine at that time whether to continue with Mr. Mullarney as the parent of primary residence or return their daughter to Ms. Williams's residence. Ms. Williams expressly stated that she was not agreeing to a permanent change of custody.

In her emails, Ms. Williams also acknowledged that she was not entitled to receive child support while the daughter was living with Mr. Mullarney, and that she would reimburse to Mr. Mullarney the payments she was receiving through the probation department beginning on August 1, 2009. Ms. Williams also acknowledged that she should pay child support to Mr. Mullarney. The parties were generally cooperative and seeking to aid their daughter in overcoming her problems in school and otherwise.

Mr. Mullarney consulted an attorney. In July 2009, the attorney sent a proposed consent order to Ms. Williams to effectuate the change in residential custody and child support. Ms. Williams found the order objectionable and did not sign it. She also did not reimburse any child support payments to Mr. Mullarney. Instead, she filed a motion pro se on August 10, 2009, to enforce litigant's rights.

Counsel for Mr. Mullarney filed a cross-motion on September 8, 2009, seeking transfer of primary residential custody to Mr. Mullarney, termination of his child support obligation retroactive to May 5, 2009, and payment of child support by Ms. Williams to him.

On September 25, 2009, the parties appeared before the Family Part judge. From his review of the motion papers, the judge expressed his understanding that the parties had agreed to a temporary change of primary residential custody of the daughter. Neither Mr. Mullarney nor his attorney disagreed with the judge's comments that the parties had agreed to a "10 month window," through approximately June 25, 2010, for the daughter to live with Mr. Mullarney, and that the pending motion required that the judge consider "ad interim relief to cover this window" in the form of child support. After the parties had departed the court, the judge placed an oral decision on the record and entered an order disposing of the pending motions.

The order granted Mr. Mullarney "interim primary physical custody of the parties' minor child . . . through June, 2010." It also directed that Ms. Williams have "reasonable and liberal" parenting time with the daughter, including at least every other weekend, and it modified the existing child support order to require that Ms. Williams pay three dollars per week in child support to Mr. Mullarney. While the order did not specifically address the termination date of Mr. Mullarney's child support obligation, the court ruled in its oral decision that the change in child support obligations would be effective as of the date of the ruling, September 25, 2009, not retroactively to the time that the daughter had moved into Mr. Mullarney's residence. The reason given for declining an earlier adjustment date for child support was "the income disparity" between the parties. The court attached a child support sole parenting worksheet to its order in accordance with Rule 5:6A. See Child Support Guidelines, Pressler & Verniero Current N.J. Court Rules, Appendix IX-C to Rule 5:6A (2011).

Mr. Mullarney filed a notice of appeal. He raises three issues in his brief: (1) the Family Part erred in declining to terminate his child support obligation as of May 5, 2009; (2) it erred in designating the residential change as an interim agreement rather than a permanent change in custody; and (3) it failed to require Ms. Williams to supply necessary proofs of her income and, as a result, miscalculated her child support obligation.

An obligation to pay child support does not automatically end when a child moves from the home of the supported parent into the home of the supporting parent. Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 8 (App. Div. 1991). As we explained in Ohlhoff:

A child's change of residence from a custodial to a non-custodial parent is seldom permanent at the time of its inception . . . . Generally, some time must elapse . . . . In the interim, the custodial parent ordinarily must continue to bear the expense of housing which includes a room for the child. Furthermore, the parents may have different perceptions of the permanency of a child's change of residency. The non-custodial parent into whose home the child has moved may consider the change to be permanent immediately while the custodial parent may continue to believe even a substantial time afterwards that the child will eventually return to that parent's home. We thus perceive no basis for concluding that a parent's child support obligation is automatically abrogated if the child moves into the home of the supporting parent. Therefore, unless the parties are able to agree upon a termination or modification of child support, the supporting parent is required to obtain court approval before terminating or reducing support for a child.

[Id. at 7.]

Retroactive modification of child support orders is prohibited by statute. N.J.S.A. 2A:17-56.23a provides:

No payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

Here, Mr. Mullarney's application to modify the existing child support order was filed in his cross-motion on September 8, 2009. The court correctly denied his application for modification of child support retroactive to May 5, 2009.

Mr. Mullarney's reliance upon Prikril v. Prikril, 236 N.J. Super. 49 (Ch. Div. 1989), is misplaced. We overruled that trial court decision in Ohlhoff, supra, 246 N.J. Super. at 6. Also, our holding in Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995), is not applicable. In that case, we determined that the supporting spouse could be relieved of paying arrearages of child support for time periods after the children were emancipated. Id. at 643. Here, the child has not been emancipated, and Mr. Mullarney has not been ordered to pay arrearages.

The trial court, however, could have adjusted the child support obligations of the parties at least as of September 8, 2009. It gave an inadequate reason for declining to do so. A disparity in income is not a proper basis for requiring the parent of primary residential custody to pay child support to the other parent.

Additionally, when the residence of a supported child changes, the parties may expressly agree upon a modification of support arrangements. Ohlhoff, supra, 246 N.J. Super. at 9. Even without an express agreement, the parties' course of conduct after the change may reflect an implied agreement to modify support, which a court may enforce. Ibid. The trial court's brief comments in this case at the time of oral argument suggest that it viewed the parties' filing cross-motions as evidence that they had not reached an agreement. At the same time, the court considered the change in residence to have been agreed upon as an interim change despite Mr. Mullarney's cross-motion seeking a permanent change in custody. The court's oral decision did not reconcile these conflicting interpretations of the parties' communications. The court also did not address Ms. Williams s acknowledgement that she should reimburse the child support payments she was receiving beginning on August 1, 2009. Having relied upon the parties' communications to find an agreement for an interim change of residential custody, the court should have explained why it did not view the communications as also evidencing agreement for termination of Mr. Mullarney's child support obligation as of August 1, 2009.

We reverse the provision of the court's order designating September 25, 2009, as the effective date of termination of Mr. Mullarney's child support payments. We remand to the Family Part to consider whether the effective date should be September 8, 2009, in accordance with N.J.S.A. 2A:17-56.23a, or August 1, 2009, because the parties agreed on that date.

With respect to the residential status of the daughter, we have not been informed about present circumstances after June 2010 and whether the daughter continues to live with Mr. Mullarney in the current school year or has returned to Ms. Williams's residence. In fixing a "10 month window" of change in the daughter's primary residence, the judge did not address the relief sought in Mr. Mullarney's cross-motion, a permanent change in physical custody. The colloquy in open court did not alert the judge that Mr. Mullarney was seeking that relief, and the judge may have understood the absence of any protest to his proposed interim relief as indicating agreement.

On remand, the court should consider the current circumstances and entertain any further application by either party for a ruling on the residential status of their daughter. If the parties have reached an understanding that is acceptable to both, the issue of residential custody may be moot.

Finally, Mr. Mullarney contends that the court miscalculated Ms. Williams's child support obligation because it did not require that she provide the necessary proofs to establish her income. In her motion to enforce litigant's rights filed in August 2009, Ms. Williams included her 2007 tax return together with a Schedule C for her hairdressing business, four recent pay stubs showing gross pay of $175 per week, and a case information statement declaring additional income of $75 per week in tips. Relying upon those documents, the court found that Ms. Williams had gross income of $250 per week. Mr. Mullarney's gross income of $1,827 per week as a Jersey City fireman is not in dispute. The gross income figures were used in the child support worksheet prepared by the court. Because of the self-support reserve test required by the child support guidelines, the court found that Ms. Williams's child support obligation was only three dollars per week.

Mr. Mullarney did not present evidence to show that the figures shown on Ms. Williams's documents were incorrect. He merely argues on appeal that Ms. Williams could not pay her living expenses with the income she reported. He argues that she received unreported income in her employment as a hairdresser. She responds that the child support payments of $218 per week provided additional resources to pay her expenses.

The issue may be partially moot if the parties' daughter has returned to live with Ms. Williams. We note that in the consent order presented by Mr. Mullarney's attorney to Ms. Williams, she was to pay child support of five dollars per week. It appears, therefore, that Mr. Mullarney was acknowledging her limited income in agreeing to the nominal amount of child support.

If the issue persists, the parties shall be permitted to present additional evidence of income of either party, and the court may determine whether a further hearing is necessary to adjust child support.

The order of September 25, 2009, is affirmed to the extent it denied Mr. Mullarney's motion for retroactive termination of his child support obligation as of May 5, 2009. Its designation of September 25, 2009, as the termination date of his child support obligation is reversed, and the matter is remanded to the Family Part to consider an appropriate effective date as between September 8, 2009, and August 1, 2009.

On remand, the court shall also consider any further application of the parties with respect to the residential status of their daughter and Ms. Williams's potential obligation to pay child support.

W

1 The record does not explain when or how the child support was reduced to $218 per week.