Winterberg v. Lupo

692 A.2d 92, 300 N.J. Super. 125, 1997 N.J. Super. LEXIS 190
CourtNew Jersey Superior Court Appellate Division
DecidedApril 24, 1997
StatusPublished
Cited by10 cases

This text of 692 A.2d 92 (Winterberg v. Lupo) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winterberg v. Lupo, 692 A.2d 92, 300 N.J. Super. 125, 1997 N.J. Super. LEXIS 190 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

KLEINER, J.A.D.

Defendant, Jay Lupo, appeals from an order entered in the Family Part on March 11, 1996. Defendant contends that the motion judge erred in: (1) setting child support at $60 per week; (2) failing to apply the support order retroactively; (3) failing to order plaintiff to pay one-half of certain unreimbursed medical and dental expenses incurred by defendant on the children’s behalf; and (4) failing to recognize that a prior child support order was a pendente lite order.

We find that the motion judge failed to articulate his findings and also failed to explain why he deviated from the Child Support Guidelines. Ordinarily, a remand to the Family Part would be warranted; however, the motion judge is now disqualified from presiding in this litigation.

[128]*128For the reasons more fully explained in this opinion, we must reverse and remand for further proceedings consistent with this opinion.

I

Defendant and his former wife, plaintiff Joan M. Winterberg, formerly Joan M. Lupo, were married on September 6, 1980. They entered into a separation agreement on May 5, 1992. The parties are the parents of two sons: Brian, born March 29, 1981; and Christopher, bom October 19, 1984. Upon separating, the parties agreed to “joint custody” but agreed that plaintiff would have “primary physical custody.” Defendant, a career officer in the National Guard, agreed to pay $600 per month in child support, $800 per month per child. Defendant was granted undefined, but liberal, visitation with the children. A judgment of divorce was entered on June 17,1992.

Shortly thereafter, the two children visited defendant for the entire summer. The parties intended that both sons would return to and reside with their mother during the 1992-1993 school year. Despite those plans, by the end of the summer of 1992, both sons expressed a desire to remain with their father. Although plaintiff contends that the arrangement was only for the 1992-1993 school year, defendant contends that the children expressed a desire to remain with him permanently and that plaintiff ultimately acquiesced to this.

A.

On June 18, 1993, defendant filed a motion requesting a change of physical and residential' custody, child support, and reimbursement of medical and dental expenses that he had incurred during the preceding year. That motion was repeatedly postponed but was ultimately argued on February 18 and March 18,1994, before a judge who has since left the bench.

[129]*129While that motion was pending, defendant’s National Guard base in New Jersey was “downsized,” and defendant was advised that his military career could continue only if he accepted a transfer to Chambersburg, Pennsylvania before September 1, 1993.

Defendant contends that he discussed this prospective move with his counsel and with plaintiffs former counsel, and an agreement was reached whereby defendant and the children would relocate and plaintiff would be afforded visitation with the two children. Based on that alleged agreement, defendant did, in fact, relocate. No judicial approval was sought. See generally N.J.S.A. 9:2-2; Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988); Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984); Levine v. Bacon, 297 N.J.Super. 224, 687 A.2d 1057 (App.Div.1997); Cerminara v. Cerminara, 286 N.J.Super. 448, 669 A.2d 837 (App.Div.), certif. denied, 144 N.J. 376, 676 A.2d 1091 (1996).

Plaintiffs certifications, filed in response to defendant’s initial motion, dispute defendant’s contention that a final agreement was reached; however, a plenary hearing to resolve that dispute was never scheduled. The first motion judge’s order fails to resolve that dispute. Implicit in the order is the judge’s apparent conclusion that defendant’s contentions were true. We infer this because temporary custody was awarded to defendant pending completion of evaluations. The passage of time, plaintiffs failure to request a Holder hearing, and her apparent acquiescence to the visitation schedule established by agreement and given judicial sanction by paragraph 4 of the March 21,1994, order lends further support to our inference. Cf Horswell v. Horswell, 297 N.J.Super. 94, 104, 687 A.2d 797 (App.Div.1997) (holding that the passage of time was a relevant factor when determining custody issues).

On March 21,1994, the first motion judge entered an order that provided, in part:

3. Defendant’s motion for a transfer of custody of the children is reserved pending completion of the evaluation of Dr. Hagovsky.
[130]*1304. The parties are directed to comply with the visitation schedule which is currently in place.
5. Plaintiff is directed to pay child support to defendant in the amount of sixty dollars ($60.00) per week, the Court having found that plaintiffs obligation is lower than the amount dictated by the Child Support Guidelines, in light of plaintiff’s austere budget and her obligation to pay substantial transportation expenses. Defendant’s request that plaintiff be ordered to pay child support retroactive to the date of the filing of the within motion is DENIED.
[ (Emphasis added).]

New Jersey’s Child Support Guidelines (Guidelines) are set out in Rule 5:6A and a series of appendices. See Pressler, Current N.J. Court Rules, comment on R. 5:6A (1997). Appendix IX-A delineates the applicability of the Guidelines. In subsection (l)(b), we find the following:

These guidelines are intended to apply to all actions to establish a child support award. If the combined net family income exceeds $52,000, the court shall apply the guidelines up to that amount and supplement the guidelines award with an additional support amount based on the remaining family income and the factors enumerated in N.J.S.A 2A:34-23.
[Ibid, (emphasis added) (citing Pascale v. Pascale, 140 N.J. 583, 660 A.2d 485 (1995)).]

From the certifications filed, the exact amount of the parties’ income was in dispute.2 It is apparent, however, that under any of the possible permutations of total income, the parties’ combined net income exceeded $52,000. The total amount of the parties’ income was never resolved at a plenary hearing, and the Guidelines were apparently not utilized to establish a basis for a support order. Additionally, the factors used to determine the amount of child support that are enumerated in N.J.S.A, 2A:34-23 were seemingly ignored.

Defendant’s certification specifically asserted that his counsel had agreed, at plaintiffs request, to postpone the initial motion in order to allow time for negotiation of the dispute.

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Bluebook (online)
692 A.2d 92, 300 N.J. Super. 125, 1997 N.J. Super. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winterberg-v-lupo-njsuperctappdiv-1997.