CHRISTINE MELANSON v. PATRICK MELANSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0131-05T50131-05T5

CHRISTINE MELANSON,

Plaintiff-Respondent,

v.

PATRICK MELANSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted July 5, 2006 - Decided July 26, 2006

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-2514-01.

George G. Gussis, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant, Patrick Melanson, appeals from the provisions of a post-judgment order pertaining to (1) the effective date of the modification in his child support obligation for the parties' daughter, Jennifer, occasioned by her matriculation as a full time college student; and (2) the denial of his motion to designate him the parent of primary residence of the parties' son, Thomas, as of September 1, 2004, when Thomas began living with him, and refusing to adjust the child support obligations between the parties to reflect that change in custodial status. We affirm in part and reverse in part and remand for further proceedings.

The parties married in 1982. Three children were born of the marriage, Jennifer (April 6, 1986), Thomas (July 2, 1989), and Shannon (October 15, 1993). The parties separated in February 2001 and were divorced by final judgment entered on July 24, 2003. The divorce judgment incorporated the terms of a property settlement agreement between the parties, which provided, in pertinent part, that defendant would pay plaintiff permanent alimony of $231 per week; the parties would have joint legal custody, but plaintiff would be the parent of primary residence of all three children; and that defendant would pay plaintiff $228 per week in child support.

Defendant is an electrician. During the pendency of the divorce proceedings, he was the sole proprietor or shareholder of an electrical contracting company, Advance Electric, which fell into financial difficulties, resulting in discontinuance of its operations. Defendant continued to obtain work through the electrician's union, and he also performed occasional odd jobs, for which he was apparently paid in cash. In 2003, Advance Electric was "reactivated" after having been deactivated in 2001. Thus, there was some uncertainty about defendant's actual income at the time of the divorce.

Defendant's child support obligation was based upon plaintiff's annual income of $22,000, plus her alimony award of $12,000, and defendant's presumed income of $65,000. The agreement provided that "[t]o avoid speculation on a 2003 income, the parties stipulate Defendant's income as $57,000 for 2003 and impute an additional $8,000 for a total of $65,000." The agreement further provided, in paragraph 5.2, that at the completion of the 2003 tax year, defendant would provide plaintiff with his personal tax return and Advance Electric's corporate return for 2003 and, based upon defendant's actual 2003 income, the parties would recalculate child support. It was agreed that "[i]f there is any adjustment, it shall be retroactive to January 1, 2003. There shall be no downward adjustment for 2003."

In paragraph 5.3, the parties also agreed that if Jennifer, who was slated to graduate high school in June 2004, "attends college after high school, as a full time matriculating student, child support shall be renegotiated based on Defendant's actual 2003 income unless the parties otherwise agree as per paragraph 5.2." As anticipated, Jennifer graduated high school in June 2004, and in September 2004 she matriculated as a full time student at Loyola College in Maryland. She continues her studies there in that status, and presumably has recently completed her sophomore year.

At the time of the divorce, plaintiff and the children continued to reside in the marital home in North Brunswick. The children were enrolled in the North Brunswick schools. In December 2003, the marital home was sold. Plaintiff purchased a townhouse in South Brunswick. Defendant continued to live in North Brunswick. The children continued to attend North Brunswick schools.

As of September 1, 2004, Thomas, wishing to attend high school in North Brunswick and to be near his friends who lived in defendant's neighborhood, moved into his father's home. He has lived there continuously ever since. He visits with plaintiff on a regular basis, but, without dispute, he has been a full time resident of his father's home since September 1, 2004.

As of September 1, 2004, and thereafter, defendant continued to pay plaintiff the full child support obligation as ordered by the court. We note that Shannon has continued to live with her mother and is now attending South Brunswick schools. The custodial status of Shannon is not at issue in this appeal. Defendant contends that he made some effort at about the time Jennifer was to begin college to negotiate with plaintiff the sharing of college costs and a renegotiation of child support obligations. According to defendant, plaintiff was uncooperative. Plaintiff, on the other hand, contends that she was not consulted about the choice of college for Jennifer. She contends that the cost at Loyola (nearly $40,000 per year) exceeds the parties' means and is beyond her ability to make reasonable contributions. She also contends that defendant's family made provisions for assisting in the education of the children.

In any event, it is clear from the record that as of September 2004, the parties were aware that they disagreed as to any financial adjustments occasioned by Jennifer's commencement of her college studies. They were also aware that Thomas had begun living with defendant on a full time basis. In the succeeding months, plaintiff did not attempt to enforce her court-ordered primary custodial status of Thomas, nor did she make any informal efforts by direct communications with defendant to demand that Thomas resume living with her. During those months, defendant continued to pay the full child support amount, and plaintiff continued to accept it.

On March 16, 2005, defendant filed a motion seeking, to the extent pertinent to this appeal, (1) to adjust his child support obligation with respect to Jennifer retroactive to July 1, 2004, (2) transferring residential custody of Thomas to him, effective September 1, 2004, and (3) recalculating child support with respect to Thomas retroactive to September 1, 2004, and offsetting the parties' respective obligations as of that date. In her pro se reply, plaintiff filed an uncertified response in which she stated that she "never agreed and do not agree that Thomas should live with his father." However, she further stated: "I will reluctantly transfer residential custody of Thomas if that is what my son wants."

Ruling on the papers without oral argument, the judge issued an order on April 25, 2005, and an amended order on May 8, 2005, to correct a mathematical error. The judge denied without prejudice defendant's request to transfer Thomas's custody to him, directed the parties to attend mediation to resolve the custody issues, and denied without prejudice defendant's request to recalculate child support with respect to Thomas until resolution of the custody issues. The judge reset the child support amount, but, relying on the child support anti-retroactivity statute, N.J.S.A. 2A:17-56.23a, he denied defendant's request to make the adjustment retroactive.

Defendant moved for reconsideration with respect to the relief requested pertaining to both Jennifer and Thomas. Plaintiff filed a cross-motion seeking, among other things, an order that she retain residential custody of Thomas. The judge issued an order on July 29, 2005, determining that defendant's child support obligation for all three children would be $303 per week, consisting of $233 calculated pursuant to the Guidelines for Thomas and Shannon, plus an additional $70 per week attributable to Jennifer, calculated pursuant to N.J.S.A. 2A:34-23a. The judge provided that the revised child support obligation would be effective March 18, 2005, the date of the filing of defendant's original motion. The judge, again relying upon N.J.S.A. 2A:34-23a, declined to adjust the child support obligation retroactive to July 1, 2004, as requested by defendant.

The judge denied defendant's reconsideration request with regard to transferring residential custody of Thomas, again noting that plaintiff "certified" that she did not consent to the change of custody. However, the judge denied without prejudice plaintiff's cross-motion to "retain custody of Thomas," reiterating that the parties would attend mediation to resolve custody issues. By virtue of these orders, the status quo was maintained with regard to Thomas's custody, namely that, with judicial sanction, he was permitted to continue living with defendant.

On appeal, defendant argues that the judge erred in refusing to transfer custody of Thomas as of September 1, 2004, an arrangement that originated as a result of Thomas's wishes, to which plaintiff completely acquiesced. He further argues that N.J.S.A. 2A:17-56.23a does not bar retroactive modification of support to a date earlier than the filing of his motion with respect to Thomas or Jennifer.

Plaintiff has filed no brief on appeal. However, she has written two letters to the court. In a letter dated October 8, 2005, addressed to a judge of this court before whom a Civil Appeals Settlement Program (CASP) conference was scheduled, she stated: "I am willing to grant residential custody to my ex-husband with liberal visitation rights with me because my residential custody of Tommy was never enforced. At this point, I feel it would be detrimental to Tommy, both emotionally and academically, to force him to move to my home in South Brunswick." In a March 13, 2006 letter, explaining that she would not obtain legal representation to file a brief, plaintiff stated: "Since I feel it would be in my son's best interests to complete the remaining 2 years of his educational program in North Brunswick, I am willing to give residential custody to Mr. Melanson."

We are satisfied from the record before the trial court that the judge should have entered an order designating defendant the parent of primary residential status of Thomas as of September 1, 2004. Plaintiff's belated and conclusory comment in response to defendant's motion that she never agreed to the change is belied by her undisputed total acquiescence in the change for a period of seven-and-one-half months. She made no allegation that the change was not in Thomas's best interests or against his wishes. And, when confronted with cross-motions regarding Thomas's custodial status, the judge allowed the status quo to remain, which had the effect of authorizing by court order Thomas's continued residence with defendant. Our conclusion is bolstered by the letters from plaintiff during the pendency of the appeal, in which she expressly acknowledges her consent to the transfer of custody. We therefore reverse the portion of the trial court order denying defendant's motion to designate him as the parent of primary residence with respect to Thomas.

We address the retroactivity issues separately with regard to Jennifer and Thomas. The analysis differs somewhat with respect to each child. At the time of the divorce, the parties did not contemplate that Thomas would wish to live with his father in order to continue residing in North Brunswick and being near his friends and going to school there. Thus, the only basis for retroactivity asserted by defendant is that as of September 1, 2004, Thomas did in fact live with him, and therefore, according to defendant, his child support obligation to plaintiff with respect to Thomas no longer existed as of that date. We do not view the proposition in such clear-cut terms. In a similar situation, we analyzed the issue this way:

We now expressly adopt the rule implicit in Testut and Brummer and hold that a child support obligation is not automatically abrogated when a child for whom support is owed moves into the home of the supporting parent. A child's change of residence from a custodial to a noncustodial parent is seldom permanent at the time of its inception, especially when the change occurs on the initiative of a teenager who believes that he or she will be happier living with the other parent. Generally, some time must elapse before the child can decide whether the new living arrangement really will be more to his or her liking and before the custodial parent can decide whether to accept the change on a permanent basis. 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 noncustodial 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 who presently resides with that parent.

An additional reason for holding that a supporting parent may not unilaterally terminate the support for a child who moves into that parent's home is that the support paid for one child cannot be isolated from support paid for other members of the family unit. Although a court order or agreement of the parties may allocate separate amounts as alimony for the supported spouse and support for each child, those allocations are often arbitrary and may not accurately reflect the actual needs of the individual members of the family. Consequently, even if a child's move into the home of the supporting parent has sufficient permanency to warrant a complete termination of support for that child, it may be appropriate when that support is terminated to increase the support payable for other members of the family.
 
[Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 7-8 (App. Div. 1991).]

Based upon that analysis, we find no error in the judge's refusal to find an equitable exception to N.J.S.A. 2A:17-56.23a. Any such exceptions are highly fact sensitive. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). On this record, defendant has not established that as of September 1, 2004, the change in Thomas's custodial status was intended to be permanent. There may well have been an expectation among the parties (both parents and Thomas) that a trial period would be appropriate to see how things worked out before this arrangement should be given more permanent status. Further, by continuing to pay the full child support order, defendant signaled his understanding that the arrangement was, at least for the time being, tentative. Of course, as the months went by, the parties by their conduct evidenced their acquiescence and agreement that the arrangement should take on a more permanent status. Finally, when defendant filed his motion, seven-and-one-half months later, he decided to seek formal judicial sanction of the arrangement.

We see no reason why the date of that motion should not be the starting point of any modified financial arrangements, which are intertwined with the support for the other children, college expenses for Jennifer, alimony obligations, and the parties' changing earnings. Therefore, on remand, we direct that child support with respect to Thomas should be adjusted as of March 16, 2005, with offsetting obligations between the parties for child support effective as of that date. Plaintiff contends that she continued to spend money for Thomas's support after he began living with his father. The court may consider any such expenditures in the overall resolution of the issue.

With respect to Jennifer, the situation is somewhat different. When the parties struck their agreement, they contemplated a change in Jennifer's status the following year, namely that she would begin college. The parties agreed that upon Jennifer attending college full time, "child support shall be renegotiated based on Defendant's actual 2003 income." Defendant argues that by virtue of the provisions of paragraphs 5.2 and 5.3, the parties expressly agreed to a retroactive adjustment to January 1, 2003. Thus, defendant argues that by the terms of their agreement the parties waived any retroactivity prohibition, at least with respect to Jennifer, and such an agreement is judicially enforceable. See Ohlhoff, supra, 246 N.J. Super. at 9. Thus, according to defendant, the modification of child support with respect to Jennifer should be effective July 1, 2004.

We do not agree. First, the provision in paragraph 5.2 allowing a retroactive adjustment to January 1, 2003, but in such a manner that there would be no downward adjustment for 2003, provided a measure of protection for plaintiff occasioned by the uncertainty in defendant's 2003 income from various sources. We view that provision as a means of enabling plaintiff to later verify his actual income, by review of his personal and corporate tax returns, and, if his income was higher than estimated in the agreement, there could be an increase in child support retroactive to January 1, 2003. We do not view the provision as impacting any change in support resulting from Jennifer's matriculation at college.

Further, although the agreement provides for renegotiation of child support when Jennifer (or either of the other children) begins college, the agreement is silent as to the effective date of any such renegotiated or judicially redetermined amount. We do not imply an intent of the parties that it would necessarily be effective the day college begins. As we have stated, the record makes clear that defendant was aware at about the time Jennifer began college that the parties did not agree on any adjustment in child support or contribution to college expenses. By defendant's own assertion, his overtures in that regard were met with an uncooperative response from plaintiff. Thus, it was incumbent on defendant to pursue a remedy in court, and until he initiated that proceeding, we see no basis for an equitable exception to the anti-retroactivity statute.

Accordingly, we affirm the July 29, 2005 order insofar as it establishes March 16, 2005 as the effective date of a child support adjustment as to Jennifer, and we reverse and remand with respect to that portion of the order denying the transfer to defendant, effective September 1, 2004, of residential custody of Thomas, for whom child support shall also be adjusted as of March 16, 2005.

 

The correct date of filing was March 16, 2005.

If we accepted defendant's argument, the appropriate date would be when she began college, September 1, 2004, not July 1, 2004.

(continued)

(continued)

15

A-0131-05T5

July 26, 2006