Has anyone come across this issue or know of a case on point:
Custodial parent has filed a motion to seek reimbursement of unreimbursed expenses after the first $250 spent, retro-actively to the date of the MSA and going forward. The MSA is silent on the issue of unreimbursed medical expenses.
The child support guidelines provides that any medical expenses exceeding the first $250 should be shared between the two parents.
Further, in Gotlib v. Gotlib, 399 N.J. Super. 295 (N.J. Super., 2008), the court held "[f]urthermore, payments to offset un-reimbursed medical expenses are intended to provide essential benefits to the parties' children. In this light, the right to receive these payments belongs to the children, and is therefore not subject to waiver by a custodial parent. See L.V., supra, 347 N.J.Super. at 41, 788 A.2d 881 (citing Kopak, supra, 4 N.J. at 333, 72 A.2d 869; Martinetti, supra, 261 N.J.Super. at 513, 619 A.2d 599; Savarese, supra, 311 N.J.Super. at 246, 709 A.2d 829)."
In Gotlib, the parties had an agreement to divide the unreimbursed cost and the Defendant had argued that Plaintiff waived her right to enforce the "JOD's clear provisions requiring each party to pay one-half of the children's un-reimbursed medical expenses because she did not consult with him before the children visited certain physicians, and did not bill him on a monthly basis, as required by the JOD. Stated differently, even in the face of plaintiff's failure to abide strictly to the provisions of the JOD requiring her to discuss the children's doctor visits with defendant prior to incurring expenses for services rendered, or her failure to bill the defendant on a monthly basis, a court reviewing a motion to enforce litigant's rights may not "impute to a child the custodial parent's negligence, purposeful delay or obstinacy so as to vitiate thechild's independent right of support from a natural parent." Id. at 40, 788 A.2d 881 (citing Perez, supra, 21 Cal. App.3d 870, 97 Cal.Rptr. 920; Ellison, supra, 834 P.2d 680)."
So, in short is there any statutory or case law on point that I am missing that addresses the issue of whether unreimbursed medical expenses are required to be shared by the parties, if: 1. their MSA does not indicated they will be shared and 2. the child support guidelines states "should" and not "shall" be shared.
Thank you in advance for any wisdom you may have on this issue.
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Meghan Gulczynski Esq.
Brunetti, Donnelly, Gulczynski, LLC
35 Journal Square, Suite 822
Jersey City, NJ 07306
201-537-5249
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