Nina v. Mahoski

MARTA NINA, f/k/a MARTA MAHOSKI, Plaintiff-Respondent, v. ALBERT MAHOSKI, Defendant-Appellant.

No. A-3328-19

Superior Court of New Jersey, Appellate Division

July 7, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 10, 2021

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No FM-18-0150-10.

Albert Mahoski, appellant pro se.

Marta Nina, respondent pro se.

Before Judges Sumners and Mitterhoff.

PER CURIAM

In this post-judgment matrimonial matter, defendant Albert Mahoski appeals from a Family Part order denying his request to terminate his child support obligation and his additional claims for relief. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

The parties were married in 1996, and had two children during the marriage: J.L., born in 1998, and J.S., born in 2001. The marriage was terminated in March 2010, by way of a Dual Final Judgment of Divorce which incorporated a Matrimonial Settlement Agreement (MSA). The MSA provided joint legal and physical custody of the children. At the time of the divorce plaintiff Marta Nina earned an annual income of approximately $95, 000 while defendant earned approximately $110, 000. The parties therefore waived their rights to alimony and child support, and instead elected to split the children's expenses equally.

Under the MSA, each party is required to pay one-half of all unreimbursed medical, dental, and prescription drug expenses of the children. Any elective or non-emergent cosmetic procedure in excess of $100 must be agreed upon in advance. Every three months, the parties agreed to provide receipts for any costs which the other is obligated to contribute, and reimbursement is to be made within seven days.

Apparently anticipating defendant's unwillingness to pay, the MSA set forth the following sanction provision:

In the event [plaintiff] pre-pays for an extra-curricular activity and [defendant] does not reimburse his portion within fourteen . . . days of receiving an invoice, or if [defendant] unilaterally takes a credit he is not authorized to take . . . then [plaintiff] may file an application for enforcement of litigant's rights and, in addition to issuing an [o]rder on the matter of the extra[-]curricular activity and/or camp expense, the [c]ourt shall issue an [o]rder by which [defendant] shall become responsible to pay child support pursuant to the guidelines through the appropriate probation department. Such imposition of child support shall not trigger a recalculation of the 50/50 allocation of camp, activities[, ] and unreimbursed medical expenses, as such allocation was negotiated to be an essential aspect of the child support in the best interests of the children. This provision regarding the imposition of child support without reallocating the payment of expenses as a sanction for non-payment is an essential term of this overall [a]greement and this [a]greement would not have been agreed upon without these terms. The parties further agree that no court shall have the authority to alter this sanction, which is agreed upon as being made in the best interests of the children.^[1]

In July 2014, after defendant refused to undergo court-ordered therapy, a best interest evaluation was ordered to determine a custody schedule. Defendant refused to participate in the best interest evaluation. Consequently, a February 26, 2016 order granted plaintiff sole legal custody and reduced defendant's parenting time to Thursday nights and every other weekend. Plaintiff also requested reimbursement in the amount of $1, 519.50 for expenses related to their children's braces, driving lessons, tutoring, guitar lessons, and a summer geometry program. The judge noted defendant's history of disregarding court orders, but directed plaintiff to submit her request to arbitration pursuant to the parties MSA.^[2]

In October 2018, defendant became unemployed. He sold his house in New Jersey, purchased a new home in cash, and relocated to North Carolina in April 2019. In July 2019, defendant submitted an updated Case Information Sheet (CIS) which showed an annual income of $91, 288 in 2018 and moved to terminate his support obligation under the MSA due to a change in circumstances.^[3] The motion was denied as procedurally deficient because defendant failed to include proof of his income at the time of divorce. R. 5:5-4. The order indicated, however, that even if defendant had included the appropriate documentation, the reduction in his annual income did not support his request to terminate his obligation to share in the children's expenses.

By this time, J.L. was attending college. Plaintiff claimed a tax credit for tuition payments she made in 2016, 2017, and 2018. In August 2019, defendant filed a motion requesting that the court order plaintiff to reimburse him for a portion of the tuition-related tax credits she claimed from 2016-2018.^[4] The motion was denied without prejudice because defendant failed to provide proof of the tuition payments he allegedly made, but ordered plaintiff to provide J.L.'s 1098Ts from 2016-2018. The September 18, 2019 order noted that:

if [d]efendant is able to provide the required proofs, he may be able, in a subsequent filing, to file his taxes with the appropriate allocation, which may result in an audit to [p]laintiff or need to file amended returns.

In October 2019, plaintiff moved to enforce litigant's rights based on defendant's failure to pay his portion of the children's expenses. Defendant had made only one of the five quarterly payments he was required to make from March 2018 through May 2019. The judge compared defendant's history of bad faith and blatant disregard of court orders with plaintiff's rigid compliance with the terms of parties' MSA. He found that plaintiff had "kept painstaking records and provide[d] ample documentation for each request for relief."

Accordingly an October 25, 2019 order awarded plaintiff $13, 283.96 in unreimbursed recreational and medical expenses, tuition payments, and fees with payment to be made within fourteen days. The order also required defendant to make all payments to plaintiff through the probation department, all tuition payments directly to the universities, and allowed plaintiff to claim both children as dependents moving forward. In light of defendant's consistent failure to make payments, the judge granted plaintiff's request to enforce the MSA's sanction provision, which required defendant to make child support payments in accordance with the child support guidelines, ^[5] in addition to his half of the children's expenses. Defendant was ordered to provide an updated CIS so the court could impute an income and calculate his support payments.

The updated CIS showed an income of $91, 288 in 2018, and assets totaling more than $590, 000. On December 4, 2019, based on defendant's updated CIS, the judge imputed an income of $800 per week and ordered him to make weekly child support payments to plaintiff of $119. In calculating the support payments, the judge credited plaintiff with 365 overnights with the children per year. Twelve days later, defendant moved for reconsideration of the child support calculation. Defendant argued the judge failed to consider his current unemployment when imputing his income. He also argued that the custody schedule used to calculate the support payments was inaccurate, as the children spent time with him in November and December of 2019 and lived at college during the school year.

By the return date of the motion, defendant had not paid any of the $13, 283.96 awarded to plaintiff by the October 25, 2019 order. He had also failed to pay his portion of J.S.'s tuition and had not made any contribution toward the children's expenses since June 2019.

On January 17, 2020, defendant's motion was denied. In calculating his imputed income, the judge considered defendant's current unemployment, past income, and assets. Despite defendant's contentions, the judge noted that he could have reasonably imputed a far greater income based on his current financial status. With regard to the custody schedule, the judge found that defendant's relocation to North Carolina effectively eliminated all of his parenting time. Consequently, defendant was not credited with any overnights.^[6]

On January 30, 2020, defendant mailed plaintiff a check for $8, 616.66 of the $13, 283.96 she was awarded by the October 25, 2019 order. In February 2020, defendant filed two motions. The first requested that plaintiff be ordered to reimburse him for the deduction she claimed in exchange for paying J.L.'s 2019 tuition, or in the alternative, to allow him to claim J.L. as a dependent on his 2019 tax return. In support of the request, defendant submitted proof of a $5, 000 payment he made toward J.L.'s tuition on January 14, 2019, as well as a copy of the January 30, 2020 check. Defendant argued the September 18, 2019 order entitled him to a reimbursement now that he provided the requested proofs.

Plaintiff opposed the motion arguing defendant was not entitled to a reimbursement. She certified that she applied the $8, 616.66 to defendant's outstanding recreational and medical expenses, as well as the portion of J.S.'s tuition that she paid on his behalf. Further, because he made the payment in 2020, defendant would not be able to claim the expense on his 2019 tax return. Plaintiff also noted that the January 30, 2020 check was the only payment she had received from defendant in a year.

Defendant's second motion requested the court: (1) reconsider the child support calculation and custody schedule; (2) terminate/suspend tuition payments and child support...