Motions To Reconsider Child Support, Custody and Parenting Time, Distribution of Assets, and Various Other Calculations from The Judgement of Divorce Were Granted in Part and Denied in Part
Docket No. A-0262-20
Decided October 25, 2021
Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division affirmed a post dissolution order which granted in part and denied in part motions to reconsider child support, custody and parenting time, distribution of assets, and various other calculations from the Judgement of Divorce (JOD).
In J.A.M., plaintiff and defendant were married on April 25, 2015, and share a son. In December 2018, plaintiff secured a final restraining order (FRO) against defendant after an incident of domestic violence, leading to the filing of crosscomplaints for divorce. On September 26, 2019, the court issued a pendente lite order that defendant
provide 50% of her 401k to [p]laintiff’s attorney immediately . . . . [Defendant] shall immediately contact the appropriate entity to liquidate and divide the net amount with [plaintiff]. The parties shall use these monies first to pay the experts (or reimburse the party who is documented to have paid the experts) and then to pay counsel.
On November 18, 2019, the court issued another order after defendant did not liquidate her 401(k) account and did not “provide [p]laintiff with 50% of her 401(k) after the experts are paid . . . .” The motion court instead ordered defendant to divide the funds “as soon as it becomes practicable for the [qualified domestic relations order (QDRO)] to be issued.” The case was tried before a different judge, who entered the JOD on June 29, 2020, addressing on the record the issues of custody, parenting time, alimony, child support, and equitable distribution of assets and debts. It also ordered that defendant’s 401(k) would remain defendant’s sole property, not subject to reallocation.
On July 13, 2020, defendant filed a motion for reconsideration of the JOD, asking, in pertinent part, that the court reconsider calculation of the child support guidelines to include alimony paid to plaintiff and for modification of parenting time. Defendant contended the court erred in using an incorrect parenting guideline worksheet, and she presented a modified sole parenting guidelines worksheet that proposed increasing plaintiff’s child support obligation to defendant from $10 to $156 per week. Defendant also asked the court to alter the parenting plan to modify the hours of the Wednesday dinner visit. Plaintiff filed an untimely cross-motion asking to be designated the parent of primary residence (PPR), for modification of parenting time and child support, adjustment of her imputed income from $60,000 to $25,000, and disbursement of $24,926 from defendant’s 401(k).
On August 13, 2020, the court issued an order modifying and recalculating child support to account for plaintiff’s two other dependents. This recalculation of overnights, alimony, and change in the child support guidelines worksheet—from “shared” to “sole” parenting—resulted in an increase in child support payable to defendant from $10 to $156 per week.
The court denied both parties’ requests for modification of parenting time and denied plaintiff’s request that she receive $24,926 out of defendant’s 401(k). Plaintiff’s request for reduction of her imputed income from $60,000 to $25,000 was also denied. Plaintiff appealed.
Plaintiff argued the Court did not consider the FRO against defendant in reallocating custody. The Appellate Division found that although the FRO is considered for custody in the domestic violence proceedings, custody in a divorce action does not take into consideration the “abuser.” The Court found that her income was imputed properly, despite plaintiff’s contentions, based on her ability to earn for child support purposes. However, the judge utilized the sole parenting worksheet instead of the shared parenting time worksheet, despite plaintiff’s parenting time being over the 28% threshold. Without a proper explanation from the Court, the Appellate Division remanded the issue. Lastly, the Court rejected plaintiff’s request to distribute the 401(k) from the pendente lite order, in contrast to the JOD.
This case is important to understand the difficulty of appealing family and divorce legal issues. This is why it is vital to make sure you have adequate representation at the trial level, to ensure the JOD and motion orders are correct. Otherwise, you may be stuck with an unsavory outcome.
If you have any questions about child support, alimony, student loans, divorce, counsel fees or any other issues, contact the experienced attorneys at Hark & Hark today.
At Hark & Hark, we help clients with domestic violence restraining orders, prenups, divorce, custody, domestic violence, child support, alimony issues, parenting time and more.
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