MARY R. MACHULSKY v. JOSEPH M. MACHULSKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6290-05T16290-05T1

MARY R. MACHULSKY,

Plaintiff-Appellant,

v.

JOSEPH M. MACHULSKY,

Defendant-Respondent.

_______________________________________

 

Argued October 23, 2007 - Decided

Before Judges Skillman and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-269-97.

Mary R. Machulsky, appellant, argued the cause pro se.

Respondent did not file a brief.

PER CURIAM

Plaintiff Mary R. Machulsky appeals from certain provisions of orders entered in this matrimonial action on June 30, 2006, and July 28, 2006. For the reasons that follow, we affirm in part and reverse in part.

I.

The parties were married on May 23, 1987, and two children were born of the marriage, A.M. and C.M. The marriage was dissolved by a judgment of divorce entered on April 15, 1998, which incorporated the parties' property settlement agreement (PSA). The parties agreed to joint legal custody of the children, with plaintiff as the parent of primary residence. In addition, plaintiff agreed to accept $50 per week in child support, provided she could petition the court for modification if her income fell below $30,000 per year.

On April 4, 2003, Judge Lee Laskin entered an order which provided that defendant shall pay plaintiff $222 per week in child support. The judge applied the child support guidelines in making that determination. Judge Laskin imputed annual income of $30,000 to plaintiff and $60,000 to defendant. The order was entered "without prejudice" to an application by either party for a change of child support based on the parties' actual respective incomes.

In September 2003, after a dispute between plaintiff and A.M., the police brought A.M. to defendant's home and he moved for custody of the child. On October 17, 2003, Judge Louis R. Meloni entered an order transferring custody of A.M. to defendant. Judge Meloni entered another order on October 29, 2003, reducing defendant's child support based on the change in custody. Plaintiff appealed from both orders.

In addition, on November 7, 2003, Judge Stephen M. Holden entered an order awarding plaintiff $2,854.12 on a claim against defendant for wrongful retention of a security deposit related to the former marital home. Defendant appealed from that order.

We thereafter entered an opinion addressing both appeals. Machulsky v. Machulsky, Nos. A-1778-03T2 and A-1929-03T2 (App. Div. January 31, 2005). We affirmed the orders granting custody of A.M. and reducing defendant's child support obligation but remanded for a plenary hearing on the custody and support issues. In addition, we reversed the judgment entered for plaintiff on the security deposit claim because the judge had erroneously calculated the amount due to plaintiff. We remanded the matter for entry of a judgment for plaintiff in the amount for $990.84.

After our decision in these appeals, defendant sought the return of $2,065.31, which was the difference between the amount he had paid when plaintiff executed her judgment and the $990.84 that we found she was entitled to receive on the claim. Defendant also sought an award of attorney's fees and costs. On October 17, 2005, Judge Holden entered an order requiring plaintiff to pay defendant $2,065.31.

Plaintiff filed a motion for reconsideration and defendant filed a cross-motion seeking entry of a judgment for $2,065.31, plus an award of attorney's fees related to the reconsideration motion. Judge Holden filed an order on January 19, 2006, which denied plaintiff's motion, entered judgment for defendant, and awarded defendant $250 in counsel fees. Plaintiff appealed and we affirmed the order. Machulsky v. Machulsky, No. A-3336-05T1 (App. Div. May 22, 2007).

In accordance with our decision in A-1929-03T2, Judge Meloni conducted hearings on the custody and support issues. The judge filed a letter opinion dated October 6, 2005, in which he determined that defendant would have sole custody of A.M., and the parties would share joint custody of C.M. Judge Meloni denied defendant's motion to allow C.M. to reside with him when plaintiff is out of town. The judge applied the child support guidelines and required defendant to pay $75 per week in child support. That was the net amount resulting from the judge's finding that defendant was obligated to pay plaintiff $190 per week for the support of C.M., and plaintiff was obligated to pay defendant $115 for the support of A.M. With respect to child support for C.M., the court determined that plaintiff's share of the support obligation was 35.56% and defendant's share was 64.44%.

In this matter, plaintiff appeals from an order entered by another judge on June 30, 2006, which denied plaintiff's motion for reconsideration of an order entered on April 21, 2006, requiring the parties to share on an equal basis the costs of C.M.'s attendance at a summer program for talented youth at Johns Hopkins University; awarded defendant $350 in attorney's fees for plaintiff's reconsideration motion; and granted defendant's application to permit C.M. to stay with him when defendant is out of town.

Plaintiff also appeals from provisions of an order entered by the judge on July 28, 2006, which denied plaintiff's motion to divide the cost of C.M.'s braces in accordance with the parties' relative incomes; granted defendant's motion for reimbursement of overpayments of child support; and found that plaintiff violated defendant's rights as a litigant by failing to pay counsel fees previously awarded and refusing to allow the county sheriff to execute on a writ of execution issued by the court.

II.

We turn first to plaintiff's appeal from the provisions of the June 30, 2006 order, which denied plaintiff's motion for reconsideration of the court's earlier determination requiring the parties to share on an equal basis the cost of C.M.'s attendance at the Johns Hopkins program and awarded defendant attorney's fees for the time devoted by counsel to responding to that motion.

We briefly summarize the facts relevant to our consideration of plaintiff's arguments. In October 2005, C.M.'s school informed plaintiff that C.M. was eligible for the summer program. At the time, C.M. was in seventh grade. However, to be admitted to the program, C.M. had to take the SAT exam and achieve a certain score.

On November 1, 2005, defendant gave plaintiff a check to pay for part of the program's registration fee and the fee for the SAT test. In January 2006, defendant drove C.M. to the SAT testing site. Plaintiff received the SAT results in February 2006 and sent a copy to defendant, along with a request that he pay half of the cost of the program. When defendant failed to pay, plaintiff filed a motion seeking an order requiring that defendant's share be based the parties' relative incomes.

Defendant opposed the motion. He stated that he had no objection to C.M. attending the program; however, plaintiff had not consulted with him sufficiently about the program. Defendant also asserted that C.M. had expressed some reservations about attending the program. Defendant suggested that there was another program that C.M. could participate in from home.

The judge considered the motion at a hearing on April 21, 2006. We have not been provided with a copy of the transcript of that proceeding. However, the record indicates that the judge initially denied plaintiff's request that C.M. be permited to attend the program but, after interviewing C.M., the judge entered an order dated April 21, 2006, which stated C.M. could attend, with the parties splitting the costs on a 50-50 basis. The order further provided that the parties were to exchange all information regarding the program, including financial aid forms.

On May 9, 2006, the judge entered another order directing defendant to pay plaintiff his share of the program costs within ten days. On May 23, 2006, the court instructed defendant to pay one-half of the costs within twenty-four hours. Plaintiff submitted a financial aid application to Johns Hopkins. Defendant did not submit an application for financial aid apparently because the information he had indicated that it was too late to seek aid. In any event, on May 12, 2006, Johns Hopkins awarded C.M. financial aid in the amount of $1,500.

On May 30, 2006, plaintiff filed a motion seeking reconsideration of the court's May 9, 2006 order. Plaintiff said that since the order was entered, financial aid had been awarded. Plaintiff asserted that since the award had been based on her application alone, she should have the benefit of the entire award. Alternatively, plaintiff asked the court to divide the costs according to the parties' relative incomes.

Defendant opposed the motion, arguing that plaintiff failed to establish a basis for reconsideration of the court's prior order. Defendant further asserted that plaintiff made the motion in bad faith and he sought an award of fees for the time devoted by counsel to responding to the motion.

The judge considered the motions on June 30, 2006. The judge denied plaintiff's motion for reasons stated on the record. She found that plaintiff had not properly consulted with defendant regarding the program and it had been "sprung on him." The judge noted that she had interviewed C.M. and allowed him to attend the program because she did not "want the child hurt by what the parents were doing." The judge said that allocation of the costs was "a discretionary call" and she believed a 50-50 split of costs was appropriate. The judge additionally found that the matter had been clearly addressed in her prior order and "there should not have been a need to come back here on this." The judge awarded defendant counsel fees in the amount of $350.

Plaintiff argues that the judge erred in refusing to divide the costs of the program in accordance with the parties' relative incomes, as required by the Child Support Guidelines. Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2283 (2008). The parties' respective obligations for supporting C.M. were previously determined in accordance with the guidelines, first by Judge Laskin and later by Judge Meloni.

The guidelines provide for calculation of child support based on the average amounts spent by an intact family for housing, food, clothing, transportation, entertainment, unreimbursed health care costs up to $250 per child per year, and certain miscellaneous items. Id. at 2288-90. The calculation may include certain other predictable and recurring expenses. Id. at 2290. However, "special expenses" that are not predictable and recurring "should be shared by the parents in proportion to their relative incomes." Ibid.

The guidelines must "be applied when an application to establish or modify child support is considered by the court." R. 5:6A. Moreover, "[t]he guidelines may be modified or disregarded by the court only where good cause is shown." Ibid. Good cause may be shown when the "considerations" in the guidelines or "other relevant factors" indicate the guidelines do not apply or should be modified. Ibid. Good cause may also be established when an "injustice would result from the application of the guidelines." Ibid. "In all cases, the determination of good cause shall be within the sound discretion of the court." Ibid.

Here, the trial judge found that the guidelines should not be applied in allocating the costs of the program because plaintiff had not consulted sufficiently with defendant regarding the program. We might agree with the judge's finding if plaintiff had simply incurred the expense without any consultation whatsoever. However, the record shows that there was some consultation between the parties on this matter. Furthermore, despite his initial reservations, defendant agreed that C.M.'s attendance at the program was in the child's best interest.

Therefore, we conclude that the judge erred by denying plaintiff's motion for reconsideration. We are convinced that good cause did not exist to depart from the guidelines in allocating the costs of the program. We are additionally convinced that, because plaintiff's motion for reconsideration had merit and should have been granted, the judge erred by awarding counsel fees to defendant for the time devoted by counsel to responding to the motion.

Accordingly, we reverse the relevant provisions of the June 30, 2006 order, and remand for entry of an order requiring defendant to pay 66.44% of the costs of the Johns Hopkins program, and plaintiff to pay 35.46%. We also reverse the $350 award of counsel fees to defendant.

III.

We turn to plaintiff's contention that the judge erred by denying her motion to divide the costs of C.M.'s braces in accordance with the guidelines.

The record shows that in the PSA, the parties agreed that plaintiff would be responsible for the initial $250 in annual unreimbursed medical expenses, and those in excess of $250 would be divided equally between the parties. When Judge Laskin entered his order on April 4, 2003, which recalculated child support in accordance with the guidelines, he made no change in the parties' agreement regarding the unreimbursed medical expenses. However, Judge Louis Hornstine entered an order on July 18, 2003, which maintained the allocation of these costs as provided in the PSA. Judge Meloni did not address the point in his decision and order regarding the parties' basic support obligations.

Here, the judge rejected application of the guidelines based on the PSA. However, as we stated previously, the guidelines should be applied unless there is good cause to modify or disregard them. Ibid. In our view, good cause did not exist to deviate from the guidelines when allocating the cost of C.H.'s braces. Although the parties may have agreed initially to divide the unreimbursed medical expenses over $250 equally, Judges Laskin and Melone thereafter applied the guidelines in determining the parties' basic support obligations. The guidelines also should have been applied to the allocation of the cost of C.M.'s braces.

Therefore, we reverse the provision of the July 28, 2006 order requiring that the cost of C.M.'s braces be allocated in accordance with the PSA, and remand for an entry of an order requiring that this cost should be allocated in accordance with the guidelines.

IV.

We next consider plaintiff's contention that judge erred by granting defendant's application to allow C.M. to stay with defendant when plaintiff is out of town.

As noted previously, this issue was previously addressed by Judge Meloni in his October 6, 2005 decision. The judge denied defendant's application to allow C.M. to reside with him when plaintiff is away. In his written decision, the judge made the following findings:

Although the [d]efendant does not specifically argue it, the [c]ourt infers that the [p]laintiff's new job represents a change in circumstance that would justify a re-arranging of the parenting time. The [c]ourt finds that it does not.

In today's flexible society it is not extraordinary that one's profession or occupation would demand time away from home. In this particular case, there has been no testimony or evidence as to how many times per year the [p]laintiff must travel and for how long a period of time she would be gone. The [p]laintiff did testify that [C.M.] is comfortable residing with her boyfriend, who lives with them on a full-time basis, and that was verified in my conversation with [C.M.].

It is also unknown as to where [C.M.] will be residing. At the time of the hearing, [p]laintiff, [C.M.] and her boyfriend were about to move to a new undisclosed location. That being the case, it is unknown as to whether or not [C.M.] would stay in the same school district where [d]efendant presently resides, or whether he would still be in the same close proximity to the [d]efendant's house.

The [d]efendant had also testified that out of town work was available to him and he had taken advantage of it prior to this most recent year. Assuming he again decided to do that, then [C.M.] would be left with his father's girlfriend, who is a member of that household.

Accordingly, the Court finds that there is not a significant change of circumstances to justify the parenting time nor has it been shown that it would be in [[C.M.]'s best interest.

The record before us indicates that circumstances changed after Judge Meloni made his findings. When adjudicating the dispute concerning C.M.'s attendance at the Johns Hopkins program, the judge interviewed C.M. and he said that he wanted to spend more time with his father. In June 2006, plaintiff went out of town and left C.M. with one of her friends.

Furthermore, some time before, plaintiff told C.M. that she was going to get rid of his dog. Plaintiff asserted that C.M. had not fed the dog for two days. She said that C.M. had smeared dog waste across the deck and threw her boyfriend's case under the deck. The case was filled with dog waste. Plaintiff asserted that had it not been for her boyfriend, she would have taken the dog to the pound at once.

Plaintiff also stated that when she told C.M. she was going to get rid of the dog, he started crying. According to defendant, C.M.. was crying hysterically. The call was interrupted and defendant tried several times to call C.M. When he could not do so, he called the police. The police found no basis for intervention. Plaintiff claimed that defendant called the police to harass her and her boyfriend. She stated that she should be allowed to discipline C.M. without defendant's interference.

Plaintiff argues that the trial judge should have adhered to Judge Meloni's earlier ruling and the judge's determination here was, in effect, one trial judge reviewing and overruling a decision by another trial judge. However, we are convinced that the record provided ample reasons for the judge to reconsider the earlier ruling.

As we have explained, when defendant's application came before the court, the circumstances were significantly different from what they were when Judge Meloni first addressed the issue. Moreover, C.M. was thirteen years old at the time and he expressed a preference to spend more time with his father. We are satisfied that the judge did not abuse her discretion by permitting C.M. to stay with defendant when plaintiff is out of town.

V.

Plaintiff additionally challenges the provision of the July 28, 2006 order which found that she violated litigant's rights and awarded defendant counsel fees in the amount of $300 for his enforcement motion.

The record shows that when plaintiff filed her motion to allocate the cost of C.M.'s braces based on the parties' relative incomes, defendant made a cross-motion seeking a declaration that plaintiff violated litigant's rights by: failing to pay the counsel fees awarded to him on January 1, 2006 and June 30, 2006; failing to pay $310 as required by the court's June 30, 2006 order; and refusing to comply with a writ of execution that the judge issued allowing defendant to enforce the judgment against plaintiff in the amount of $2,065.31.

Defendant's motion was granted in part and denied in part. The judge found that plaintiff had not complied with the June 30, 2006 order requiring payment of counsel fees in the amount of $350, but stated that the January 19, 2006 order awarding defendant counsel fees of $250 was "on hold" pending a decision on plaintiff's appeal from that order. The judge additionally determined that plaintiff had violated litigant's rights by failing to comply with the writ of execution. The judge further determined that the application to declare plaintiff in violation of the order requiring payment of $310 was moot.

The judge ordered plaintiff to allow the sheriff to enter her residence for the purposes of executing the judgment, subject to the exemption of certain property; denied without prejudice defendant's motion to authorize the sheriff to arrest plaintiff if she failed to comply with the writ of execution; and ordered plaintiff to complete an information subpoena regarding her business as an independent contractor. The judge awarded defendant counsel fees in the amount of $300. However, the July 28, 2006 order states, "This Order is entered without prejudice and future arguments are preserved as to counsel fees."

We are convinced that the provisions of the July 28, 2006 order declaring plaintiff in violation of litigant's rights and awarding defendant counsel fees in the amount of $300 should be reversed and the matter remanded to the trial judge for reconsideration. The judge's findings rest in part on her determination that plaintiff failed to comply with the June 30, 2006 order requiring that plaintiff pay defendant $350 in counsel fees. We have determined that this award of attorney's fees was erroneous.

The judge's order also rests in part on the judge's view that plaintiff failed to comply with the writ of execution and refused to allow the sheriff into her home to enforce the writ. However, the certifications before the trial court raise genuine issues of fact as to what actually occurred when the sheriff attempted to enforce the writ of execution. In our view, those factual issues should not have been resolved without an evidentiary hearing.

Finally, the judge made her award of counsel fees "without prejudice" to allow further argument over the appropriateness of that award. Thus, the order establishes that plaintiff could seek subsequent review of the award of counsel fees.

We therefore reverse the provisions of the July 28, 2006 order finding plaintiff in violation of litigant's rights and awarding defendant counsel fees in the amount of $300. We remand for reconsideration of those determinations.

VI.

Plaintiff further argues that the judge abused her discretion by refusing to award plaintiff certain "offsets" to defendant's overpayment of child support.

The trial judge found that defendant overpaid child support by $3,039. This overpayment related to the previously mentioned change of custody for A.M. and the concomitant reduction in defendant's support obligation. According to defendant, it took several months to correct his wage execution, resulting in the overpayment. The judge ordered that defendant receive a $40 weekly credit against his current support payments for 76 weeks.

Plaintiff challenges the order on three grounds: 1) the account needs to be audited to determine whether defendant was paying $8 per week less than he should have been paying; 2) plaintiff should have been given "offsets" for certain outstanding medical bills and babysitting costs; and 3) defendant should be judicially estopped from seeking any reimbursement because he stated in an appellate brief that the overpayment of child support was "water under the bridge."

We are convinced that these contentions are entirely without merit. First, the judge stated on the record on July 28, 2006 that the parties could have the child support account audited. Second, the judge stated on the record that plaintiff was not foreclosed from making a motion in the future for any "offsets." Third, defendant's passing comment in his appellate brief regarding the child support overpayment did not preclude him from seeking reimbursement of the overpayment.

Affirmed in part, reversed in part, and remanded for further proceedings in conformance with this opinion. We do not retain jurisdiction.

 

We note that the matter was initially venued in Gloucester County and later transferred to Camden County. In August 2003, the matter was returned to Gloucester County.

(continued)

(continued)

19

A-6290-05T1

November 8, 2007