Darryl Marcaurele v. Heidi Marcaurele (2010)

MEMORANDUM OF DECISION REGARDING MOTION TO MODIFY

The parties were divorced and judgment entered on February 7, 2001 pursuant to an agreement.   They were granted joint legal and physical custody of their minor child with a shared parenting access plan.   Suggesting a successful parenting plan, the file was essentially dormant until 2009.   Thereafter, there has been a flurry of motions but thanks to the cooperation of the parents and the good work of the attorneys and the Guardian ad litem (GAL), they were able to resolve all of their issues but for the following:

Whether the child support order from the father to the mother in the amount of $68 per week should be modified;

Whether the order alternating the dependency tax exemption should be modified;

The exact summer access schedule.

The parties appeared, with counsel but without the GAL, before the court on September 30, 2010.   It was agreed that the summer access schedule would be considered by the parties in the ensuing months and if they were unable to come to an agreement, that they could return to the court, together with the GAL, to argue that issue in May or June 2011.

The court heard testimony from both parties and considered the exhibits, the testimony, the applicable statutory and case law and the arguments of counsel.

FINDINGS OF FACT

The court finds proven by a fair preponderance of the evidence that:

1.  The parties continue to enjoy a shared parenting access plan with the father having the child approximately four nights per week and the mother having the child approximately three nights per week.

2. The father presently pays $68 per week child support.

3. The mother is remarried and under-employed.   She has a history of working as an office manager, a bookkeeper, and as a licensed day care provider.   As the result of two automobile accidents, she received a permanent partial neck disability.   Nonetheless, she was denied SSD and has certified to the Unemployment Compensation Department that she is ready, willing and able to work full time.   She has only applied for a few jobs in the past few years and has only $12 in actual net income from her home day care business.   The court finds that the mother has an earning capacity of $300 per week.

4. The dependency tax exemption is being wasted when the mother, earning little or nothing, elects it while the father earns approximately $55,000 per year.

ORDERS

1.  The presumptive child support order based on the father's earnings and the mother's earning capacity is $178 if she had primary custody and he paid her, and $60 per week if he had primary custody and she paid him.

2. It is equitable, given the shared parenting arrangement, that the father continue to pay to the mother $68 per week.

3. The father shall take the tax dependency exemption for 2010 and for all future years unless and until the mother earns in excess of $20,000, at which time, the parties shall alternate.

4. The parties may return to court in May or June 2011 to argue the summer access schedule.

5. The GAL fees going forward shall be paid by the parties equally, the court having found that the mother has an earning capacity.

6. The parenting plan described in the stipulation dated May 24, 2010 is incorporated and made a part of these orders.

7. Any orders not inconsistent with these orders shall remain in full force and effect.

Shluger, J.

Shluger, Kenneth L., J.