For many, litigation after a final judgment of divorce is a well known reality.  Oftentimes, especially when children are involved, issues arise regarding child support, other expenses for the children, enforcing terms of a judgment or agreement.

In the matter of Warmke v. Warmke, Appellate Division, decided January 26, 2009, the Court faced such issues as noted above in what stemmed from post judgment motion practice.  Ms. Warmke filed an application with the trial court seeking to fix the amount of childcare arrears owed by Mr. Warmke, modify and enforce child support payments, modify parenting time, modify the amount of life insurance required by their agreement and for counsel fees.  Mr. Warmke filed a cross application requesting that Ms. Warmke contribute to summer camp expenses, a hearing aid for the older child, medical expenses, requiring her to share the transportation reimbursement from the public school and for counsel fees.

The Warmke’s had been divorced since 1996 and had entered into an Agreement resolving the outstanding issues in their marriage.  They had two children, the eldest of which suffers from Down Syndrome, Pervasive Developmental Disorder, anxiety disorder, seizures, and hearing and vision impairments.

The parties’ agreement provides for joint legal custody. Ms. Warmke has primary physical custody and Mr. Warmke receives liberal parenting time.  At some point after the agreement was entered into, the parties modified their parenting time arrangement, allowing Mr. Warmke primary physical custody during the school summer holiday.

At the time of their divorce, both parties had worked outside the home. The children were cared for by an individual who came to the Warmke’s home. The boys had attended camp during the summer months. Post divorce, Ms. Warmke wanted to maintain that status quo. However, when the youngest child entered school full-time, the parties agreed that the at home childcare was no longer necessary. They reduced their modification to writing. What appears to be not long thereafter, Mr. Warmke remarried and Ms. Warmke rehired the individual who had previously cared for the children in the home. The cost of this individual’s help had increased, however Mr. Warmke continued to pay his share.

Approximately 2 years later, Ms. Warmke was laid off from her job. The at home childcare became unnecessary for a period of two years. In 2003, Ms. Warmke secured full-time employment and once again rehired the same individual to come to the home and care for the children. She informed Mr. Warmke of her intent via writing, to which he responded expressing dissatisfaction, given the increased cost. Mr. Warmke made one payment for the childcare in 2003 and failed to make any other payments through 2005. In 2005, Ms. Warmke’s employment position changed and she no longer required childcare assistance.

The trial judge determined that additional information was needed to recalculate child support. The judge also denied Ms.Warmke’s request for reimbursement of childcare for the period of 1997 through February 1999, without prejudice to allow her to produce documentation proving the expense incurred for that period. The judge also denied Ms. Warmke’s request for childcare reimbursement from June 1999 through September 2003, without prejudice, for the same reason as above. As for the childcare expenses from September 2003 through June 2005, the judge found Ms. Warmke was entitled to reimbursement for the percentage allocated in the parties’ agreement.

As for Mr. Warmke’s application, the trial judge denied the request to share the reimbursement of transportation costs without prejudice to allow Mr. Warmke to provide additional proofs. Upon receipt of additional proofs, any credit due to Mr. Warmke would be taken against his childcare arrears. As for life insurance, the request for an additional amount was denied, but Mr. Warmke was to provide proof that he maintained sufficient coverage. The request for summer camp expenses was also denied.

Both parties appealed contending that the trial court failed to consider all the evidence and at times relied upon improperly submitted evidence. In addition, it was contended that the judge should have ordered a plenary hearing to determine the issues of disputed facts.

The Appellate Division held that it was error for the trial judge to order Mr. Warmke to reimburse Ms. Warmke for unsubstantiated childcare expenses without first evaluating the necessity and reasonableness of those expenses. A plenary hearing was required in order to determine the factual disputes set forth by the parties in their conflicting Certifications submitted to the court. In addition, the Court held that Mr. Warmke may be due a credit to any outstanding childcare arrears out of the contract for school transportation into which Ms. Warmke entered but failed to share the reimbursement received by the school district. As for the cost of summer camp, the Court held that the proof submitted indicated an agreement to which Ms. Warmke did not abide. However, given the factual dispute, a plenary hearing was ordered to address this issue as well.

As seen in this case, post-judgment litigation may not always mean a rather quick resolution to problems which may arise.  Except for simply enforcement motions, many post judgment motions will ultimately require discovery and a plenary hearing, if not settled.

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