Opinion
DOCKET NO. A-3110-11T3
04-19-2013
LOUIS IACOVELLI, Plaintiff-Respondent, v. MINDY IACOVELLI, Defendant-Appellant.
Neal M. Frank, attorney for appellant. Romanowski Law Offices, attorneys for respondent (John Nachlinger, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1091-06.
Neal M. Frank, attorney for appellant.
Romanowski Law Offices, attorneys for respondent (John Nachlinger, of counsel and on the brief). PER CURIAM
Defendant Mindy Iacovelli appeals from a February 7, 2012 post-judgment order modifying child support. She contends that the court erred in declaring plaintiff the parent of primary residence for purposes of the Child Support Guidelines (Guidelines), contrary to the parties' property settlement agreement (PSA), without an evidentiary hearing. Because we agree that Judge Miller was correct in concluding that plaintiff was the parent of primary residence for purposes of calculating child support, and that no evidentiary hearing was necessary, we affirm.
The parties were married in 1999 and divorced in 2007. They had one child together of whom they share joint legal and residential custody. In the portion of their PSA captioned "Custody and Visitation," the parties agreed that neither of them would be designated as parent of primary residence. They agreed that defendant would have overnight parenting time every other weekend from Thursday after school until Monday morning when she dropped the child off at school or camp, and whenever plaintiff traveled for business. The PSA called for defendant to have a minimum of 160 overnights regardless of plaintiff's travel schedule. Plaintiff was to pay child support of twelve dollars per week pursuant to the Guidelines. The agreed amount of child support was calculated using a shared parenting worksheet in which plaintiff was listed as the parent of primary residence. That worksheet, which was attached to their PSA and incorporated into their divorce judgment, was prepared by defendant's counsel.
In October 2011, defendant moved to recalculate child support based on changed circumstances. Finding that child support had not been adjusted to reflect the cost of living since the parties' divorce, contrary to Rule 5:6B, and that defendant had raised other issues warranting a review of the child support calculation, the court ordered the parties to exchange case information statements, tax returns, pay-stubs, and W-2 statements and to appear before a child support hearing officer. The parties exchanged financial information as ordered and appeared before the hearing officer with counsel. At the hearing, defendant contended that she had more overnights than plaintiff. The hearing officer reviewed the parties' overnights for 2011. Based on the evidence presented, she determined that plaintiff had 194 overnights and defendant 171. The hearing officer concluded, based on the number of overnights and that the child was enrolled in school in plaintiff's district, that plaintiff was the parent of primary residence. Because, however, the PSA stated that neither party would be designated as parent of primary residence, the hearing officer returned the matter to Judge Miller for resolution of that issue.
Counsel for the parties agreed to allow the court to determine child support based on their written submissions in response to the findings of the hearing officer. After receiving those submissions, Judge Miller issued a tentative decision in which he determined that the Guidelines applied and required that child support be calculated on the basis of a shared parenting worksheet designating plaintiff as the parent of primary residence. In addition to plaintiff having the greater number of overnights, the judge noted that the child resides with plaintiff while attending school. The court rejected defendant's request for a Wunsch-Deffler analysis because the parties did not share an equal number of overnights, and noted that the Guidelines' worksheet attached to the PSA and prepared by defendant's counsel also listed plaintiff as the parent of primary residence. The court determined preliminarily that plaintiff's child support obligation should rise from twelve to twenty-four dollars.
Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009).
The parties again agreed to waive oral argument and to make their arguments in writing to the court. Defendant responded to the preliminary decision by renewing her contention that the parties' overnights were essentially equal. She further contended that the court should not alter the language of the PSA without a motion and an evidentiary hearing. She argued that the court erred in concluding that the child resided with plaintiff while attending school, because he actually resided in both parents' homes during the school year. She also contended, without any reference to the record, that the controlled expenses for the child were shared by both parties. Plaintiff wrote to the court accepting the preliminary decision and noting a prior order which determined that the child shall attend school in plaintiff's district. After considering the parties' written responses to its tentative decision, the court determined to adhere to that decision in all respects. This appeal followed.
On appeal, defendant contends that Judge Miller erred in declaring plaintiff the parent of primary residence without an evidentiary hearing. We disagree.
A parent of primary residence is the parent, in a shared parenting arrangement, with whom a child resides for more than fifty percent of the time or, if a child spends equal time with each parent, the parent with whom the child resides while attending school. See Child Support Guidelines, Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2554, ¶ 14(b)(1) (2013). The parent who is not the parent of primary residence is called the parent of alternate residence. Id. at ¶ 14(b)(2). The Guidelines presume that one parent will be designated the parent of primary residence and the other will be designated the parent of alternate residence.
Here, although the parties' PSA provides that neither would be designated as parent of primary residence in the provisions relating to "Custody and Visitation," the provision governing "Child Support" expressly states that "[c]hild support shall be based upon the Child Support Guidelines attached hereto." Defendant does not dispute that those attached Guidelines, which were prepared by her counsel, designated plaintiff as the parent of primary residence because of his anticipated greater number of overnights. Contrary to defendant's argument that Judge Miller "rewrote the clear language of the Property Settlement Agreement," the court merely continued to calculate child support in accordance with the Guidelines in the same manner the parties did at the time of the divorce based on their respective overnights. As defendant was determined to have had only 171 overnights in 2011, plaintiff was correctly designated as the parent of primary residence according to the Guidelines. Because that decision was based on the number of overnights determined by the hearing officer that neither party disputes, an evidentiary hearing was unnecessary. Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding that a hearing on an application to modify support is not necessary when the material facts are not in dispute).
The dispute over whom the child resides with while attending school is irrelevant because that consideration comes into play only if the time spent with each parent is equal. See Child Support Guidelines, supra, Appendix IX-A to R. 5:6A at 2554, ¶ 14(b)(1).
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We also reject defendant's argument that a Wunsch-Deffler analysis was required. The Child Support Guidelines incorporate assumptions about which parent bears categories of expenses for the child. Even where custody is shared, the Guidelines assume that only the parent of primary residence incurs "controlled expenses," such as clothing and personal care, which account for approximately one-fourth of the basic child support amount. Benisch v. Benisch, 347 N.J. Super. 393, 397 (App. Div. 2002). Wunsch-Deffler addressed the formula for "backing out" that twenty-five percent in controlled expenses when the parents share an equal number of overnights with the child. Wunsch-Deffler, supra, 406 N.J. Super. at 509. Because we conclude that Judge Miller correctly continued plaintiff as the parent of primary residence for purposes of calculating child support based on the parties' respective overnights, no Wunsch-Deffler analysis was required.
We are not unmindful about the significant "tangible, monetary effects" of the designation of parent of primary residence. See Benisch, supra, 347 N.J. Super. at 396. We note, however, that the Guidelines provide that a parent of alternate residence routinely incurring controlled expenses for the child, either in addition to or in substitution for an expense assumed to be unilaterally provided by the parent of primary residence, may rebut the controlled expense assumption on appropriate proofs. Child Support Guidelines, supra, Appendix IX-A to R. 5:6A at 2557-58, ¶ 14(i). Plaintiff did not attempt to muster the proofs necessary to rebut that assumption in the trial court. Her unsupported assertion that the parties share the controlled costs for their son, in response to the court's tentative decision, does not suffice.
Because we agree that Judge Miller correctly determined on the undisputed proofs that plaintiff should continue to be designated as the parent of primary residence for the purpose of calculating child support, we affirm.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION