NANCY SZABO v. JAMES SZABO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3010-08T3
NANCY SZABO,
Plaintiff-Respondent,
v.
JAMES SZABO,
Defendant-Appellant.
___________________________
Submitted December 8, 2009 - Decided April 30, 2010
Before Judges Messano and LeWinn.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Camden County, Docket No. FM-04-1008-06.
James Szabo, appellant pro se.
Nancy Szabo, respondent pro se.
PER CURIAM
In this post-judgment matrimonial matter, defendant appeals
from two provisions of the January 9, 2009 order of the Family
Part that denied his applications (1) "to modify the Child
Support Guidelines calculated" in a prior order of June 13,
2007; and (2) "for make[-]up parenting days from 2008 . . . ."
He also appeals from the trial judge's denial of his request to
enter a judgment against plaintiff for "illegally collected
alimony" after she remarried.1 We affirm.
The parties were divorced by final judgment entered on
October 24, 2006. They are the parents of an autistic and
developmentally delayed daughter who is now fifteen years old.
An order entered on February 2, 2007, set defendant's alimony
obligation to plaintiff at $315 per week and his child support
obligation at $123 per week.
Plaintiff remarried on February 27, 2007, and pursuant to a
motion brought by defendant, her alimony was terminated
effective as of that date in an order entered on June 15, 2007.
Defendant's child support obligation was recalculated to reflect
the termination of his alimony; the new amount was $187 per
week. The order provided that defendant's overpayments of
alimony would be "repaid" by reducing his weekly child support
obligation to $170 "until the overpayments are satisfied."
Regarding the parenting time issue, the Property Settlement
Agreement (PSA) appended to the parties' divorce judgment
provided for defendant to have parenting time with his daughter
"every other weekend from Friday at 5:00 p.m. to Sunday at 8:00
p.m. and two overnights per week." The PSA further provided
1
Plaintiff requested this relief in his motion filed on December
8, 2008. The judge denied the request on the record but did not
include that ruling in his order of January 9, 2009.
A-3010-08T3
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that "[i]f for any reason [defendant] cannot have [the daughter]
for his overnight, then that overnight will be made up an extra
night as soon as is reasonable."
It appears the parties have a history of difficulty with
parenting time issues. The February 2, 2007 order required the
parties "to attend the High Conflict Choices for Children
Program" and to attend "follow up mediation or family therapy."
That order further provided that there were to be "no derogatory
remarks made to the child or in the presence of the child
regarding the other parent; this includes remarks made by a
party's significant other."
On December 8, 2008, defendant filed a motion seeking to
reduce his weekly child support obligation from $187 to $151 per
week "in accordance with child support guidelines"; to enter
judgment against plaintiff in the amount of $7123 representing
the balance due on the alimony he had overpaid "to be taken from
the proceeds of [his] 401k that she will be receiving";
enforcing his "right of first refusal" when plaintiff was
unavailable to care for their daughter; and to "[g]rant 8 makeup
days to [him]."
Respecting child support, defendant contended that because
he has parenting time for the "majority of [the] 24-hour day" on
Sunday, that "Sunday should be considered an overnight."
A-3010-08T3
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Defendant further contended that the basic child support amount
should be $285 and not $327 as set forth on the worksheet
appended to the June 15, 2007 order.
Defendant's certification did not address parenting time
issues; however, he appended a page captioned "days which
[plaintiff] refused to give custody to [defendant]," setting
forth various dates between January 1 and July 26, 2007. He
also appended three police incident reports from June, July and
November 2007, in which he filed complaints against plaintiff
for interference with custody. Defendant submitted an unsworn
statement asserting that on August 14, 2008, plaintiff had been
arrested for violating a restraining order that he had against
her and that he was not called to take custody of the parties'
daughter on that occasion.
On the return date of his motion, January 9, 2009,
defendant did not appear; plaintiff was present.
The judge addressed defendant's overnight parenting time
issue as follows:
He contends that since he has Friday to
Sunday he should have three separate days
and that should count as three days. That
is not accurate. He has Friday to Saturday
and Saturday to Sunday. That is two days.
It does not count as three separate days
. . . . [H]is computation is not accurate.
Friday to Saturday and Saturday to Sunday is
two overnights as I compute it . . . . You
don't get credit for three separate days if
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you have Friday after school to Sunday at 5
or 6 or 7:00.
The judge denied defendant's request for entry of a
judgment against plaintiff for the full balance of the alimony
overpayments, stating: "As to the alimony that was provided for
and taken care of in the order of June 15th '07. It stopped.
The credits were appropriately given and . . . he's only
obligated to pay $170 out of the [$]187 because the $17 is being
taken from the overpayment."
The judge did not address defendant's requests regarding
his "right of first refusal" and make-up parenting time on the
record. However, in his order of January 9, 2009, the judge
denied "defendant's application for make[-]up parenting days
from 2008 . . . ."
We turn first to defendant's contention that the basic
child support amount entered on the child support guidelines
worksheet appended to the June 15, 2007 order is erroneous.
Defendant is correct that the "schedule of child support awards"
contained in the child support guidelines lists $285 as the
basic child support amount where, as here, the parties' combined
net weekly income is $1603. Child Support Guidelines, Pressler
Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2460
(2010). However, the guidelines also mandate a 14.6 percent
increase in the basic child support amount for children over the
A-3010-08T3
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age of twelve. Pressler, supra, Appendix IX-A to R. 5:6A at
2401. The child support amounts listed in Appendix IX-F do not
reflect that adjustment. A 14.6 percent increase in the $285
basic child support amount results in an adjusted weekly amount
of $327.
Child support was first established by the order of
February 2, 2007, at which time the parties' daughter was twelve
years old. The guidelines provide that "if the initial child
support order is entered when a child is 12 years of age or
older, that order and all subsequent orders shall be adjusted
upward by 14.6 [percent]." Ibid. The guidelines provide
further that when that adjustment is made, "it should be noted
in the guidelines worksheet or in the support order." Ibid.
We note that neither worksheet contains such a notation.
Nonetheless, the fact remains that the resulting child support
award was properly adjusted according to this guidelines
provision.
Regarding defendant's overnight parenting time, we concur
with the trial judge that he is not entitled to three overnights
per weekend. Defendant premises this claim upon language which
appears in the guidelines introduction, captioned
"Considerations in Use of Child Support Guidelines," defining
A-3010-08T3
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"overnight" as "the majority of a 24-hour day (i.e., more than
12 hours)." Pressler, supra, Appendix IX-A to R. 5:6A at 2393.
Defendant receives the full benefit of his overnight
parenting time by virtue of the fact that Friday night is
credited as an overnight notwithstanding that his parenting time
commences at 5:00 p.m. on Friday; his weekend parenting time
ends at 8:00 p.m. on Sunday. Therefore, defendant's weekend
parenting time consists of fifty-one hours (two twenty-four-hour
periods from 5:00 p.m. Friday to 5:00 p.m. Sunday, plus three
additional hours on Sunday). Since defendant does not have
parenting time for "the majority" of a third "24-hour day[,]"
ibid., crediting him with two overnights per weekend is proper
and conforms to the guidelines.
We turn to defendant's make-up parenting time issues.
Defendant filed his motion on December 8, 2008. The allegedly
missed parenting time addressed in that motion occurred on dates
between January and November, 2007. Defendant submitted no
evidence of missed parenting time in 2008.
Defendant's parenting time schedule is set forth in the PSA
and in the order of February 2, 2007. When defendant filed his
prior motion to terminate his alimony obligation to plaintiff,
it does not appear that he raised any complaints about parenting
time as evidenced by the order of June 15, 2007, which makes no
A-3010-08T3
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mention of parenting time issues. Since defendant did not
appear on the return date of his motion which is the subject of
this appeal, the record is devoid of any meaningful evidence to
support this claim.
Plaintiff is free to file a new motion to enforce his
parenting time rights, accompanied by appropriate supporting
documentation. Based upon this record, however, we are unable
to determine with any degree of certainty the merits of his
claims.
Regarding defendant's request to enter a judgment against
plaintiff for approximately $7000 in alimony overpayments, we
find no reason to disturb the trial judge's decision that the
reduction in defendant's weekly child support payments provides
adequate relief. Defendant's claim that his child support
obligation will terminate before the full amount is repaid is
speculative. In the event that should occur, defendant has the
right to file an appropriate motion at such time to secure
payment of any outstanding balance.
Affirmed.
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