MITCHELL J. GRAYSON v. FELECIA D. GRAYSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5033-04T5

MITCHELL J. GRAYSON,

Plaintiff-Appellant,

v.

FELECIA D. GRAYSON,

Defendant-Respondent.

 
 

Submitted December 14, 2005 - Decided January 24, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County,

FM-13-1860-02.

Mitchell J. Grayson, appellant pro se.

Drazin and Warshaw, attorneys for respondent

(Vincent L. Stripto, on the brief).

PER CURIAM

Plaintiff Mitchell J. Grayson appeals from that portion of an order of April 15, 2005 which awarded him $100 per week from defendant Felecia D. Grayson as support for their four children for as long as plaintiff remained the residential custodian of the children. The additional support was made retroactive to February 28, 2005. We affirm.

Plaintiff and defendant were married on September 28, 1988. Four children were born of their marriage: Sara, born on February 19, 1989; Ashley, born on July 10, 1990; Brittany, born on March 4, 1992; and William, born on February 12, 1995. The parties separated in March 2002, and plaintiff filed a complaint for divorce on May 15, 2002. On December 12, 2002, a guardian ad litem was appointed by Consent Order to assist the parties with parenting issues. A final judgment of divorce was entered on May 5, 2004, which incorporated the terms of a written Matrimonial Settlement Agreement (the Agreement).

The Agreement awarded defendant $13,000 per month, including a one-year allotment of $1000 per month for home repairs and $1000 per month toward retirement. The payment schedule further provided that payments to defendant would decrease to $8500 per month when the youngest child graduated from college and all children were emancipated. The Agreement did not specify the money allocated to defendant as equitable distribution, alimony, or child support. The Agreement further provided that the parties would have joint legal custody of the four children. The parties were to provide support for their children during their scheduled parenting time. As of October 2004, the children were primarily residing with defendant and spending every other weekend and several weekday afternoons with plaintiff.

On October 9, 2004, defendant was involved in an automobile accident with the parties' daughter Brittany in the car. According to plaintiff, he had "long feared" such an incident might occur due to defendant's history of prescription drug abuse. Subsequently, plaintiff filed an order to show cause, and on October 19, 2004, plaintiff was awarded temporary custody of the parties' four children. In the spring of 2005, defendant entered an intensive rehabilitation outpatient program at Saint Barnabas Medical Center.

On February 28, 2005, plaintiff filed a pro se motion to change the financial settlement between the parties as a result of changed circumstances. Plaintiff also sought an award of counsel and guardian fees. Thereafter, on April 4, 2005, plaintiff filed another motion seeking to gain full and permanent residential and sole legal custody of the four children.

On April 15, 2005, Judge Kilgallen heard argument on plaintiff's motion. An order was filed that same day directing that plaintiff continue to have temporary residential custody of the children and defendant continue to have reasonable and liberal parenting time with the parties' three daughters. The order also set forth a schedule for defendant's visitation with the parties' son, directed that defendant not operate a motor vehicle with the children as passengers while she was undergoing drug rehabilitation treatment, ordered that the monthly social security amount of $936 for the children be paid to plaintiff as long as he remained the residential custodian, and directed that defendant pay an additional $100 per week to plaintiff for the support of the children, effective February 28, 2005, the date the motion was filed. The judge declined to award counsel fees to plaintiff.

On appeal plaintiff argues that Judge Kilgallen inappropriately applied the Child Support Guidelines to a non-Guideline Agreement, made erroneous Guideline calculations, failed to award him reimbursement for certain expenses of the children, and failed to award him legal fees and associated costs.

Having carefully reviewed plaintiff's contentions in light of the record and applicable law, we find them without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We add the following brief comments.

Both parties agreed before the Family Part judge that this was not a Guidelines case, but plaintiff urged the judge to utilize the Guidelines. On appeal he argues the opposite. Contrary to the statement in his appellate brief that he only "suggested a look at the Guidelines for assistance," he told the judge on April 15, 2005 that "we need to follow the child support guidelines." As a result, the judge did look to the Guidelines and reached the $100 per week figure with that guidance in mind. We do not, however, welcome such radical shifts in position. See State v. Jenkins, 178 N.J. 347, 358-59 (2004). Of course, if there was any thought that the children were not being adequately provided for, we would overlook this type of gamesmanship. But that is not the case. In addition, plaintiff did not provide the judge with any information concerning the increase in costs resulting from the children residing with him.

Judge Kilgallen acted well within her discretion in fixing the amount of child support to be paid by defendant to plaintiff during what may be a temporary situation. Tash v. Tash, 353 N.J. Super. 94, 99-100 (App. Div. 2002); Rolnick v. Rolnick, 262 N.J. Super. 343, 358-60 (App. Div. 1993). The same is true with respect to her determination concerning the retroactive date of the increase, the reimbursement of certain expenses for the children, and counsel fees. See R. 5:3-5(c); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).

 
Affirmed.

(continued)

(continued)

6

A-5033-04T5

January 24, 2006