A previous post from August 22, 2010 defined “shared parenting” by New Jersey standards, specifically: anything between 28% (104 overnights) and 50% of the overnights with the children. This comes directly from Paragraph 14(b)(1) and Paragraph 14(c)(2) of Appendix IX-A to Rule 5:6A. Calculation of child support pursuant to a shared parenting worksheet results in a greater credit for overnights than calculating using a sole parenting worksheet. Parties often dispute how the overnights are calculated for this very reason. What seems like an otherwise simple task can become arduous and left open to one’s preference of math.
Thankfully, the Appellate Division attempted to lay to rest these mathematical disparities in Alberto-Kolmer v. Kolmer, a November 10, 2021 unreported decision. The parties were married in 2004 and divorce eleven years later in 2015. They shared joint legal custody pursuant to their Child Custody and Property Settlement Agreement. Plaintiff was listed as the Parent of Primary Residence and Defendant as the Parent of Alternate Residence. Defendant initially filed an application seeking to modify to joint physical custody in August 2018. He was instead granted an alternating weekly schedule wherein he would have the children from Wednesday at 3:00 p.m. to Sunday at 7:00 p.m. in Week 1 and from Thursday at 3:00 p.m. to Saturday at 11:00 a.m. in Week 2. The parties’ attempts at mediating the recalculation of child support, as a result of the changed schedule, ultimately failed. Defendant filed an additional application to which Plaintiff cross-moved for a recalculation of child support.
During oral argument on November 20, 2019, Plaintiff’s position was that Defendant had four overnights in Week 1 and only one overnight in Week 2; for a total of five overnights. In support of her position, she advised the Court that Paragraph 14(b)(1) applies and that Defendant does not have what constitutes an overnight from Friday to Saturday during Week 2 since the children are exchanged at 11:00 a.m. on Saturday and he does not have them for 12 or more hours. The Court responded by characterizing, albeit incorrectly, that Paragraph 14(b)(1) is meant to apply to custody arrangements to determine whether the non-custodial parent has any overnights. Defendant agreed. Plaintiff also contended that 6 holidays should not constitute a credited overnight for Defendant.
As a result of this mistaken interpretation, the Court incorrectly determined that Defendant has 6 out of 14 overnights during the school year, which was 10 months out of the year. The Judge then determined that there are 4.3 weeks in a month for 43 weeks, or 301 days. Accordingly, Defendant’s schedule equaled 129 overnights out of a possible 301 during the school year. She then added in 21 days for equal parenting time during the Summer for a total of 150 overnights to Plaintiff’s 215 overnights. Plaintiff disputed that 6 holidays should not be considered as overnights in this calculation. The Court ordered the parties to submit 365-day calendars highlighting which days they had the children as an overnight.
A December 17, 2019 Order set child support at $161 per week retroactive to February 1, 2019 through June 30, 2019. Thereafter, as a result of Defendant no longer receiving a credit for the children’s health insurance, child support would be set at $218 per week. The Order recited the Judge’s previous calculation of overnights and did not deduct the holidays which Plaintiff believed Defendant should not be entitled to as a credited overnight; the Court based this particular decision upon Paragraph 13(b)(2) of Appendix IX-A to Rule 5:6A as the holidays were intermittent and did not constitute five (5) consecutive overnights.
More than five months elapsed before Plaintiff filed an application to modify the December 17, 2019 Order. She sought to modify the calculation of child support due to Defendant’s tax filing status being “married” and to credit him with only 121 overnights in recalculating child support. The Court’s June 26, 2020 Order agreed to recalculate based upon the tax filing status but denied Plaintiff’s request to amend the overnight calculations. The application was also denied as an untimely Motion for Reconsideration and out of time for an appeal.
Plaintiff then appealed the June 26, 2020 Order, in part, because the Court erred in interpreting overnights and therefore incorrectly set child support. The Appellate Division agreed. Immediately, given the extent of overnights for Defendant, the Appellate Division held that Defendant is entitled to a calculation under the shared parenting worksheet. The parties disputed whether Defendant had 5 or 6 overnights in a 14-day period. Based upon Plaintiff’s calculations, he had 4 overnights in Week 1 and 1 overnight in Week 2. Conversely, Defendant calculated that he had 4 overnights in Week 1 and 2 overnights in Week 2. The Appellate Division held that the Court correctly credited 21 overnights for Summer parenting time and several holidays. However, the Appellate Division held that the Court abused its discretion by ignoring the definition of overnight pursuant to Paragraph 14(b)(1) of Appendix IX-A to Rule 5:6A.
In doing so, the Appellate Division reversed and remanded for further proceedings to correctly calculate overnights retroactively to Plaintiff’s May 2020 filing. The Appellate Division held that Defendant spends more than 12 hours with the children every Thursday, Friday, Saturday and Sunday during Week 1 – for a total of 4 overnights. However, during Week 2, Friday is the only day wherein he spends more than 12 hours with the children – for a total of 1 overnight. The Court, in dicta, did state if pick-up were 12:01 p.m. Saturday instead of 11:00 a.m., then that would constitute 2 overnights in Week 2.
The biggest takeaway is that a parent spending 12 or more hours with their children on a given day constitutes an overnight consistent with Paragraph 14(b)(1) of Appendix IX-A to Rule 5:6A. This should be considered when deciding pick-up and drop-off times, in addition to the parties’ own schedules and the children’s. Clearly, based upon the Court’s reasoning, an hour’s difference can significantly impact the amount of child support that will be awarded.