Janice S. Markey, et. al. v. David H. Markey, App. Div. (4 pp.) Despite defendant’s protestations that he is now indigent and cannot afford the agreed-upon child support, the judge’s finding that the defendant has sufficient income to pay the support is sound and persuasive and his denial of defendant’s motion to reduce the support is affirmed.
Patricia M. Murphy v. Michael A. Murphy, App. Div. (3 pp.) Trial court did not abuse its discretion in refusing to confirm the reduction in child support verbally agreed to by the parties at a time when defendant was unemployed, and order fixing arrears is affirmed.
Jane Zirulnik v. Mark Zirulnik, App. Div. (3 pp.) There was ample basis in the record for the judge to conclude, without holding a plenary hearing, that the increased income of the parties warranted a higher contribution towards child support, given the probable advancing costs to maintain the now-teenaged sons.
Frank T. Italiano, Jr. v. Joanne M. Rudkin (Italiano), App. Div. (6 pp.) the increase in the cost of living, together with evidence that plaintiff’s income had increased from $17, 500 when the property settlement agreement was entered into approximately $80,000 at the time of ex-wife’s motion for an increase in child support, constituted a change of circumstances, and the judge erred in denying the motion and in failing to apply the Child support Guidelines.
Cohen v. Cohen, App. Div. (7 pp.) Certain provisions of matrimonial order are affirmed as appropriate exercises of discretion – including children’s trust fund issues, child’s computer cost and increases in father’s life insurance – however, since the wife made a prima facie showing of changed circumstances in respect of the basic child support guidelines, she is entitled to a plenary hearing on remand regarding the support issue, as well as the two related subset issues of responsibility for the child’s medical treatment and the parties’ responsibility for the child’s education costs.
Zimbardi v. Zimbardi, App. Div. (8 pp.) Although the parties’ son’s needs while attending college do not constitute changed circumstances warranting modification, the defendant made a prima facie showing of changed circumstances to justify discovery, and judge erred in denying defendant’s motion to reduce child support in the absence of same.
Taylor v. Taylor, App. Div (6 pp.) Judge did not abuse his discretion in granting mother’s application for increased child support and counsel fees, finding that mother’s increased costs due to economic factors and the children’s maturation more persuasive than the badly-documented and unpersuasive proofs of the father as to his increased expenses and obligations.
Moskowitz v. Moskowitz, App. Div. (5 pp.) Order denying modification of child support arrearages and reducing the arrearages to judgement is reversed and remanded for further consideration and an oral or written explanation by the motion judge of his disposition of the motion. It appears that the judge’s rejection of defendant’s bid may have been driven by the retroactive modification prohibition of N.J.S.A. 2A:17-56.23a, which does not apply in this case where defendant’s child support order had previously been reduced by one-third, which was paid, and defendant simply was seeking recognition of his modified obligation set by that order.
Barnett v. Barnett, App. Div. (4 pp.) Court affirms the denial of father’s motion to reduce his child support obligation for his high-school aged son, but reverses the order requiring him to pay one-half the cost of an automobile for his older son, since the judge found a substantial change in circumstances due to father’s involuntary unemployment, and such an expense is hardly necessary.
Lore v. Lore, App. Div. (5 pp.) Although defendant was unemployed at the time of the judgement of divorce, the judge erred in denying defendant’s child support relief application without investigating further the defendant’s other means of income at that time, and in assuming that defendant had zero income then and, at worst, could have zero income now; the record demonstrates defendant may have had other means of income at the times of the judgement which are now exhausted and unavailable.
Hart-Fallows v. Fallows, App. Div. (6 pp.) Judge improperly denied defendant’s motion for reduction of child support based on changed circumstances where the issue was not just whether defendant’s income had been reduced, but that of his true earning capacity; with defendant complaining that he could not find a job in his prior field and was forced to got to school and prepare for a lesser-paying career, and with plaintiff maintaining that defendant had marketable skill and voluntary absented himself from the workplace to his children’s detriment, a plenary hearing was required.
Trent v. Daniels-Trent, App. Div. (per curiam) (4 pp.) Since plaintiff knew, prior to his divorce, that his employment situation was about to change due to his health problems, and still agreed to make child support payments of $625 per month, the judge correctly found no change of circumstances, even though plaintiff did not return to work and remained unemployed following for those health problems; the judge was not convinced that plaintiff’s medical condition precluded all employment.
Stanczak v. Morrison, App. Div. (per curiam) (6 pp.) Judge erred in awarding mother of a child an increased level of child support (1) without requiring her to file a current Case Information Statement. (2) in failing to impute income to the mother who admitted that she was only temporarily unemployed, (3) in failing to consider the mother’s husband’s income, and (4) in failing to consider the father’s other support obligations.
Giarusso v. Giarusso, App. Div. (per curiam) (5 pp.) As the moving party who sought termination of his child support obligation, plaintiff had the burden of proving the dates of his children’s emancipation, and he failed to carry that burden in this case, conceding that he had had almost no contact with his children during the relevant period, in contrast to the defendant’s detailed testimony, upon which the judge relied in his determination of the dated of the emancipation.
Rein v. Rein, App. Div. (per curiam) (8 pp.) The increase in wife’s income from $18,000 at the time of the divorce to $30,000 does not constitute a material change in circumstances which should result in the reduction of her former husband’s support obligation, given the husband’s own increase in income; and, even if his income had remained the same, the original agreement contemplated changes in the parties’ income, and the husband has not shown that it would be a hardship for him to continue to pay the agreed upon amount.
Robert B. Crews, Jr. v. Barbara D. Crews, App. Div. (5 pp.) Although judge on remand attempted to explain the reasons for his child support order, he was hampered by the fact that the wife/ custodial parent refused to participate in the trial and therefore judge had no meaningful information regarding the real expenses of raising the two children, and matter is remanded for reconsideration after both parties have submitted case information statements.
Robert J. Curtis, Jr. v. Lydia Anne Chastain, etc., App. Div. (3 pp.) Since the judge, in making child support order, used incorrect information concerning the number of children from a previous marriage in plaintiff’s care, and failed to follow the child support guidelines, order is reversed and matter remanded.
Eugene Kimmel v. Barbara Kimmel, App. Div. (9 pp.) In eliminating the husband’s child support obligation, the trial court erred in finding that neurologically-impaired son was entitled to social security disability benefits, since the uncontroverted evidence established that such benefits had been denied, and although the court correctly found that the husband’s employment prospects were problematical, since the court found that husband retained some earning capacity, it was incorrect in concluding that he should be relieved entirely of his support obligations, unfairly placing the entire burden of the son’s support on the wife.
Cauwenberghs v. Cauwenberghs, App. Div. (7 pp.) Motion judge erred in granting without holding a plenary hearing – defendant’s motion to enforce litigant’s rights seeking child support arrearages, and denying plaintiff’s cross-motion to terminate child support and modify joint custody.
Schneyer v. Scheneyer, App. Div. (3 pp.) The record contains support for the court’s imputing additional income to defendant – whose self-employment is a business with a lot of cash income and where his reported gross receipts are highly suspicious in light of the testimony about his lifestyle - and the denial of his request to reduce child support is affirmed.
Garvey v. Garvey, App. Div. (per curiam) (5 pp.) That paragraph of the divorce judgement ordering father to pay $3,250 per month for the support of his infant daughter is reversed, since the judge failed to make specific findings of fact to support the award, beyond reciting the statutory criteria and noting that the child had the “ordinary” needs of a one-year old; further, the judge found that the father’s 19995 income was atypical, but failed to determine what would constitute typical annual income.
Clark v. Clark, App. Div. (per curiam) (8 pp.) In assessing the parties’ child support obligations, the judge erred in disregarding the wife’s ownership of interest in three closely-held, family owned corporations and of capital stock worth $2,500,000.00 in a publicly-traded corporation controlled by her family.
Raia v. Raia, App. Div. (per curiam) (7 pp.) Mother’s application for increased child support should not have been summarily denied, since the father’s substantial rise in financial fortune certainly indicates a change in circumstances, as do the passage of ten years with the resultant increase in the cost of living and the maturation and needs of the children; while there may be nothing automatic about an increase given parental good fortune, the considerations merit the examination of the issues in more detail, and matter is remanded for plenary hearing.
Mittman v. Mittman, App. Div. (per curiam) (7 pp.) The motion judge erroneously applied the wrong provisions of the parties’ property settlement agreement in rejecting ex-wife’s demand for unreimbursed expenses relating to the parties’ son’s speech/language therapy.
Curtis, Jr. v. Chastain, App. Div. (per curiam) (13 pp.) The motion judge erred in treating the custodial arrangement as non-traditional and further erred in failing to justify deviation from the child support guidelines then in effect.
Hussain v. Hussain, App. Div. (per curiam) (10 pp.) Court remands acrimonious divorce proceedings to the trial court for the entry of judgement consistent with R. 4:42-1(a)(4), since the judge executed a form of judgement in total disregard of that rule, incorporating by reference the twenty-five page transcript of his oral opinion; and, reviewing the transcript, the panel notes that each of the individual decisions in not predicated upon findings of fact as required by R. 1:7-4. On the merits, inter alia, although child custody seems to have been accurately decided, the court cannot understand why plaintiff’s demand for child support arrears and child care expense and medical expense reimbursement was denied, and these issues must be explored on remand.
Ebsworth v. Eiesnstein, App. Div. (per curiam) (9 pp.) In case where pro se defendant, inter alia, challenges the judge’s refusal to modify child support -- issuing generalized attacks on the Child Support Guidelines as fatally flawed and irremediably defective -- the court finds that the judge did not err in declining to consider defendant’s modification application in light of his steadfast refusal to file the required case information statement.
Leslie v. Butzbach, Jr., App. Div. (per curiam) (4 pp.) The court affirms the reinstatement of defendant’s previously-terminated child support and college expense obligations, based upon the judge’s review of defendant’s income tax returns and his findings that defendant had substantially understand his earnings in prior proceedings.
Breithaupt v. Eisenstein, App. Div. (per curiam) (3 pp.) Bearing in mind the disjointed presentation of the self-employed, less-than-candid defendant, and his unique accounting methods, the trial judge, to the extent possible, compiled with the requirements of R. 1:7-4 in setting forth his findings, and his decisions respecting child support are affirmed.
Pasternak v. Pasternak, Chancery Div. (Berman, J.S.C.) (16 pp.) the court holds that the monthly social security death benefit paid to defendant – the custodial parent -- as a result of the untimely death of her first husband, is not to be considered “non-taxable income” to be set forth on line 4 of the Guidelines Worksheets for sole parenting computation, but instead shall be considered as “government benefits for the child” to be set forth on line 12, so that it is subtracted from the basic child support amount before plaintiff’s percent share of the support obligation is calculated. [Decided Dec 23, 1997; Approved for publication Mar. 30, 1998]
Cresap v. Cresap, App. Div. (per curiam) (7 pp.) In child support modification application, (1) the trial court erred in concluding that consideration of the plaintiff’s certifications was barred by both the parole evidence rule and N.J.R.E. 408 since the parties’ agreement was ambiguous, and the evidence of settlement panel’s recommendations was admissible to establish its meaning; and (2) since plaintiff presented evidence of a significant increase in defendant’s earnings, he made a prima facie showing of changed circumstances entitling him to full discovery.
Glasson v. Glasson, App. Div. (per curiam) (3 pp.) Trial court did not err in refusing to permanently reduce defendant’s child support obligation based on changed circumstances due to his disability and the fact that he had two children from his second marriage, since there was no proof that the defendant was unable to perform some different form of work in order to assist in the support of his children.
Savarese v. Corcoran, App. Div. (per curiam) (1 p.) The appellate panel affirms lower court’s denial of defendant’s motion for increased child support. [Approved for publication Apr. 14, 1998.] [See 20-4-5563 below]
Ryan v. Ryan, App. Div. (per curiam) (3 pp.) The judge was correct in finding that defendant had not shown changed circumstances in the Social Security Administration’s declaration, after entry of the divorce judgement, that defendant was totally disabled , since the disability was known at the time of trial; however, the judge failed in his calculation of the consequences of the disability declaration, when he did not consider non-need based Social Security benefits received by children on account of the parent’s disability in the calculation of the appropriate child support obligation.
Brown, etc. v. Sargente, App. Div. (per curiam) (5 pp.) The court affirms child support award as reasonable, finding that judge properly imputed $40,000 annual income to defendant – a 50-year old, college-trained engineer, with experience as a stockbroker – despite defendant’s arguments that he was unable to find employment and was only “surviving” because his new spouse worked and had her own home.
Omeni v. Omeni, etc., App. Div. (per curiam) (3 pp.) Judge erred in denying -- without factual findings or legal conclusions – plaintiff’s unopposed application to terminate or modify child support, in light of his loss of employment and subsequent disabling stroke.
O’Hagan, et ux. v. Zindell, App. Div. (per curiam) (6 pp.) Judge failed to resolve the specific factual conflict regarding the alleged change in the child support arrangements worked out between the parties after the divorce judgement was entered, and should have conducted a plenary hearing on plaintiff’s application for child support arrears and defendant’s application for relief from the judgement’s child support provisions.
Libby-Johnson v. Johnson, App. Div. (per curiam) (2 pp.) Judge did not err in assessing 70 percent of the cost of the children’s au pair to the plaintiff, since he found that the au pair served both the child care function required by both parties but was also present as a convenience and comfort for the benefit of the plaintiff.
Brennan, etc. v. Petersen, App. Div. (per curiam) (5 pp.) Motion judge erred when, despite her criticism of defendant’s proofs as to his income and his failure to cooperate with the examination of his finances by a disinterested party, she accepted his assertion as to his weekly income, and granted him a reduction in child support; defendant’s intransigence alone throughout this proceeding may have warranted dismissal of his motion for child support reduction.
Drake v. Lowe, Jr., App. Div. (per curiam) (6 pp.) Judge correctly ruled that, since child support is a non-waivable right of the child, even assuming that defendant was coerced by plaintiff into the sexual relationship from which the child was born, he was still required to pay child support.
Cola v. Cola, App. Div. (per curiam) (6 pp.) Judge correctly granted child support arrears, reimbursement of medical expenses, and reimbursement of payment of defendant’s business loan to plaintiff, but erred in awarding her counsel fees, since there was legitimate confusion underlying the litigation, caused partly by plaintiff own conduct.
Maahs, Sr. v. Maahs, et al., App. Div. (per curiam) (8 pp.) Court erred in denying plaintiff father’s motion for a credit against his child support obligation for the amounts which Social Security Administration paid directly to the children’s mother for the support of the children as a result of the father’s disability.
Konopinski v. Konopinski, etc., App. Div. (per curiam) (7 pp.) Defendants appeal is, in reality, an attempt to relitigate the terms of a July 1996 court order entered with the consent of both parties, and is therefore, untimely. Whether the state and federal tax authorities will accept defendant’s attempt to comply with the order – in amending her own income tax returns to remove the children as her dependants and to execute whatever waivers may be necessary so that plaintiff could take the children as such – is not a decision to be made by defendant or this court.
L.D. v. K.D., Chancery Div. (Lihotz, J.T.C., t/a) (7 pp.) Under the circumstances of this case, the court finds that the parties nineteen-year old daughter was not emancipated when she became addicted to heroin – which distinguishes this case from the public policy considerations of Baldino - and the daughter, therefore, continues a financially unemancipated child in need of child support while she completes her drug rehabilitation program residency and earns her GED. [Decided Mar. 25, 1998; approved for publication Aug. 17, 1998]
Mininni v. Minimmi, etc., App. Div. (per curiam) (5 pp.) Although the parties may have anticipated the fact that the previously-unemployed wife/mother would become employed full-time, there was no evidence that they had specifically considered child care expenses or the children’s extra-curricular activity expenses, and judge should have required the husband/father to submit a CIS in light if wife’s demonstrated shortfall in income due to the child care and extra-curricular activity expenses.
Whitfield v. Whitfield, App. Div. (Kleiner, J.A.D.) (18 pp.) Trial judge erred: (1) in refusing to hold a plenary hearing in light of the parties’ lengthy and contradictory certifications concerning visitation and visitation expense reimbursement; (2) in failing to refer the parties’ visitation disputes to arbitration or mediation in accordance with their agreement; (3) in refusing to compel defendant to reveal her employment and investment income, which was pertinent not only to a determination of the parties proportional responsibility for visitation expenses, but was clearly relevant to the child support determination, once the judge concluded that he intended to “enforce” the Virginia child support order; (4) in refusing to enforce a paragraph of the agreement or, alternately in refusing to interpret it in accordance with applicable Virginia law; and in refusing to apply Virginia law to those parts of the agreement which he did choose to modify; (5) in modifying child support since the registration of the Virginia decree allows only its enforcement pursuant to applicable Virginia child support guidelines, nit its modification; and (6) in refusing husband’s request for counsel fees.
Bailey v. Bailey, App. Div. (per curiam) (3 pp.) Judge correctly reduced child support, concluding that 22-year old son was emancipated not withstanding the suggestion that he might resume his full-time student status ion the future. Judge further was correct in acknowledging the deficiencies in the remainder of the defendant’s application to reduce child support based on changes in his employment, imputing income to defendant, and carefully crafting a remedy to reflect the realities of the economic circumstances of both parties.
Falconieri, etc. v. Eden, U.S. Dist. Ct. (Bissell, U.S.D.J.) (11 pp.) Family law matter which defendant removed to federal court based on his allegations that eh state court (1) had refused to enforce his fundamental and constitutional parental rights and (2) had violated his constitutional rights in assigning the collection of child support payments from him to the State – is remanded to state court to defects in the removal procedure and lack of subject matter jurisdiction. [Filed Aug. 12, 1998.]
Bloom v. Wall, App. Div. (per curiam) (3 pp.) Judge appropriately reviewed the parties’ child support guideline work sheets and calculated an increase in child support payable by the defendant.
Toscione v. Valentin, App. Div. (per curiam) (3 pp.) Where plaintiff/mother submitted nothing more definitive to the court than one letter from her doctor to her employer (as to her diagnosis of chronic fatigue syndrome and its alleged effect upon her), it was not improper for the trial court to demand further proof of mother’s inability to work before agreeing to modify her child support obligations; that her employer’s retirement system may have awarded her a disability pension is not conclusive on the issue of her responsibility toward her son’s support.
Portee v. Portee, Jr., App. Div. (per curiam) (6 pp.) Submission of a statement from the Probation Dept. reflecting that no child support arrears were outstanding required further inquiry by the judge, rather than an entry of a judgement based on an assertion of counsel that the Probation Dept. had a different “view” of the court’s earlier support orders, and order granting arrears is reversed; however, judge’s ruling with respect to child’s not being emancipated, and his determination that laches did not apply to plaintiff’s application for child support, are affirmed.
Pochara v. Mistry, App. Div. (per curiam) (13 pp.) Court affirms judge’s rulings reducing plaintiff’s child support and day care cost obligations; preventing defendant and her counsel from unnecessarily contacting plaintiff’s employer; denying defendant’s application for counsel fees and denying defendant’s cross-motion seeking return of the child to her; the trial court as well within its discretion when it determined that plaintiff could continue his parenting time even if his employment required him to leave the child in the care of his paternal relatives for a short period of time.
Brodsky v. Brodsky, App. Div. (per curiam) (12 pp.) While perhaps all of the defendant’s financial and medical difficulties are, unfortunately, real and not his own making, the court should not have merely accepted his words as his sudden and continued downward spiral (commencing almost immediately after the parties’ settlement was finally accepted) without requiring some financial documentation to support it, and reduction of defendant’s child support obligation is remanded.
Krull v. Wade, App. Div. Since the amount of defendant’s income was hotly disputed, the judge was required to make findings of fact concerning that issue, inasmuch as it was the starting point for determining appropriate weekly support, and award is reversed and remanded for such findings, also, based on the terms of the PSA, defendant is responsible for all unreimbursed dental expense and should pay plaintiff for orthodontic appliance required by one of the children.
Frattalone v. Frattalone, App. Div. In what the court terms as a sad, albeit not atypical, divorce case in which there is simply not enough money to support two households – particularly where there are six children in need of support - the court reviews the trial judge’s struggle to do the best she could in a case which had no possibility of a “successful” resolution, and affirms most of her decisions codified in the final judgement, except as to the retroactive date of support modification, and remand required to correct a potential mathematical error in the support award.
Stringer v. Berrios, App. Div. Court affirms post-judgement matrimonial order granting plaintiff’s motion increasing defendant’s child support obligation based on his having become an attorney since the divorce and his consequent increase in salary; despite the combined net income exceeding the former yearly $52,000.00 threshold, the support calculated is sustainable since the judge also evaluated the various child support factors contained in N.J.S.A. 2A:34-23A, and defendant also received an appropriate dollar for dollar reduction in his net income for student loans he is obligated to pay.
McClink, etc. v. Enea, App. Div. To avoid plaintiff’s having received double support payments, judge properly directed plaintiff to pay defendant an amount representing half of the amount that she had received for retroactive Social Security benefits on behalf of the parties’ minor son based on defendant’s disability, judge also properly emancipated parties’ daughter, effective June 1, 1998, the time she was expected to graduate from college.
Bates v. Bates, App. Div. Court affirms order reducing , but not eliminating, the amount of child support to be paid by defendant/mother to plaintiff/father for the parties’ two college-age children; defendant incurred fewer costs while the children were away at school, supporting the judge’s reaction, but the reduction does not acknowledge changed circumstances to the extent a plenary hearing and full financial disclosure was mandated.
Furrey v. Furrey, App. Div. (per curiam) (7 pp.) Although retroactive reductions in child support are prohibited, defendant’s loss of his job two days after the divorce hearing, his loss of six weeks pay without receiving unemployment benefits, under the totality of circumstances evidenced here, warranted some consideration in addressing his request to reduce future child support; defendant was entitled to have the court examine the financial circumstances he faced both with respect to the willfulness of his failure to maintain support as provided in the judgement, and with respect to his application for future modification.
McElya v. McElya, App. Div. (per curiam) (4 pp.) Judge properly determined that , (1) despite defendant’s overpayment of actual child care costs, retroactive modification was improper; and (2) defendant was not entitled to credit for contributions he made to parochial school tuition since there was never any order requiring him to so contribute; however (3) based on newly-discovered evidence following probation department’s financial audit, matter should be remanded to the trial judge for a hearing on defendant’s entitlement to various other credits.
Cicolello v. Pylarinos, App. Div. (per curiam) (7 pp.) Court correctly denied father’s application for retroactive modification of his child support obligation and for retroactive reimbursement for parenting-time transportation expenses incurred; in addition to the statutory bar on retroactive modification, the matter here was complicated by father’s inaction on the issue for years.
Coughlin v. Coughlin, App. Div. (per curiam) (6 pp.) Trial court failed to set forth a reasonable basis for the substantial; increase in child support it ordered only eighteen months after the execution of the parties’ original agreement, while there was a change in circumstances in the husband’s increase in income, the court failed to factor into its calculations that the wife’s income had also increased, and that the number of supportable unemancipated children had been reduced.
Sine-Coughlin v. Coughlin, App. Div. (per curiam) (6 pp.) Since there were factual issues concerning (1) the meaning of the defendant’s “12% private practice” income calculation in the divorce judgement, and (2) the changes in the custodial - and thus support – status of the children, the defendant’s support reduction request should not have been decided ion the papers; further, since a plenary hearing was granted on plaintiff’s cross-motion for custody, any support determination will be affected by the custody determination.
Romanelli, etc. v. Snure, App. Div. (per curiam) (5 pp.) Judge improperly (1) departed from the Child Support Guidelines without giving his reasons therefor; and (2) accepted plaintiff’s estimation of child care expenses without supportive documentation or actual proof of expenditure.
Cordell v. Cordell, App. Div. (per curiam) (5 pp.) The mere fact that defendant may have improved her economic situation by her remarriage to a “successful businessman” does not, as plaintiff argues, constitute a prima facie showing of changed circumstances under Lepis which would entitle plaintiff to discovery of defendant’s financial status, or a plenary hearing in anticipation of his seeking reduction in child support.
Wheatley v. Wheatley, App. Div. (per curiam) (8 pp.) Since plaintiff and the children reside in N.J., only N.J. has jurisdiction over the judgement and the power to modify its terms absent plaintiff’s consent; Georgia’s jurisdiction under URESA was limited to collecting and enforcing the child support arrearage, and the N.J. judge acted correctly in reinstating the original N.J. child support order which had been modified by the Georgia court.
Falk v. Zannetti, App. Div. (per curiam) (5 pp.) Judge properly denied father’s motion which sought to eliminate his responsibility for his daughter’s college expenses on the grounds that the daughter and mother had not consulted with him with respect to the choice of school or provided him with any information in that regard; although a prior court order required the parties to re-establish contact between the daughter and the father, and ordered the mother to encourage the daughter to share information with the father, insufficient time and elapsed from the entry of that order to the bringing of the motion, and the judge correctly declined to terminate the parental relationship completely in light of that short span of time.
Degani v. Degani, App. Div. (per curiam) (9 pp.) (1) Father’s failure to provide compete financial information, despite repeated requests by the court, cannot form the basis of his ability-to-pay defense in an application seeking financial compensation and the judge did not err in failing to conduct an ability-to-pay hearing. (2) Where the parties’ agreement was not made at the time that the father could obtain health insurance through his employment for the children, and the agreement provided that the father should provide such insurance, but was silent as to what should happen if the father could no longer obtain such employer-provided benefits, which eventually occurred, the judge acted equitably in ordering the father pay one-half of unreimbursed medicals for the children, and one-half of the cost of coverage.
Hendrickson v. Poinsett, App. Div. (4 pp.) Even before the defendant received a social security award for disability, he had made a prima facie showing of changed circumstances under Lepis and was entitled to a fuller analysis of his medical and financial circumstances, the circumstances of the two plaintiffs, and his support obligations under the new guidelines; judge’s order denying defendant’s application for a reduction in child support is reversed and remanded.
Capaccio v. Capaccio; Baldassarre v. Capaccio, App. Div. (17 pp.) Based upon the totality of circumstances presented, the judge did not err in determining that he would disregard the poverty guideline even though the amount he was prepared to follow from calculated guideline figure for the defendant’s three children would place defendant’s available income below the poverty guideline; the judge then properly modified those figures so that each child would be treated equally, recognizing the amount paid to the children from the Social Security Administration. (Approved for publication, Apr. 23, 1999)
Chasar v. Odonovich, App. Div. (per curiam) (6 pp.) Order directing defendant to pay a certain
amount per week in child support is reversed and remanded for reconsideration
since the child support worksheets used to calculate defendant’s obligation
should reflect the same percentage of visitation time because the parties have
equal visitation periods with the children; moreover, defendant’s support
obligation should be calculated using her net income, including deductions for
union dues and pension contributions.
Stone v. Stone, App. Div. (per curiam) (4 pp.) The judge – in determining that plaintiff had not produced sufficient medical proof of disability to support his application for reduction in child support – did not have the benefit of the outcome of plaintiff’s then-pending social security disability application, which had now been decided in his favor; since it would be unfair to require plaintiff to re-file since the judge was aware of the pending application, remand is ordered so that the judge may consider plaintiff’s application in light of the social security determination.
Ware v. Ware, App. Div. (per curiam) (11 pp.) Under the guidelines, the judge incorrectly calculated (1) plaintiff’s income, by considering only gross rentals received, and not considering ordinary and necessary expenses, and (2) child support, by considering all three children under Appendix IX-F, even though two children were in college and should have been considered under that Appendix.
Burlington Cy. Social Svcs., etc. v. Blum, App. Div. (per curiam) (10 pp.) Although
defendant could not pay child support or visit his children because their
mother had absconded with them and kept her whereabouts a secret for ten years,
his argument that laches an equity should bar his payment of arrears mischaracterizes
the nature of this proceeding; it is not his former wife that is the real party
in interest here, but the Commonwealth of Pennsylvania seeking reimbursement
for monies which it has expended by way of public assistance to support the
children. Any equities favoring
defendant attributed to his former wife’s misconduct must yield to the
cooperative federalism which is the cornerstone of RURESA; however, the panel
notes its expectation that defendant will; be afforded considerable latitude
lapse and defendant’s complete deprivation of contact with his children.
Del Vecchio v. Del Vecchio, App. Div. (per curiam) (8 pp.) The judge erred
in denying discovery to ex-husband and finding that he did not make a showing
warranting modification of his child support obligation, where he showed that
his former wife – previously a waitress – had since attained her college
degree, had re-married and was working as a teacher’s aide; the panel holds
that the ex-husband is entitled to discovery on his ex-wife’s current financial
situation.
Lewis v. Lewis, App. Div. (per curiam) (5 pp.) In a non-guideline case, although defendant argues that his circumstances have changed, the court notes that his net earnings – even after deduction of his new and increased expenses – is more than the amount he reported earning at the time of the Agreement when the support amount was negotiated and decided upon; if he was confident he could meet the terms of the support agreement on a lesser income, there is no reason why he shouldn’t be able to do so now.
Somerset Cy. Bd. Of Social Services., etc. v. Bank, etc., App. Div. (per curiam) (3 pp.) In light of defendant’s failure to timely challenge or seek vacation of prior default orders regarding child support in this paternity case, and in light of plaintiff’s good faith basis to have believed defendant to be father of her child, the panel sees no basis for the court’s later order requiring plaintiff to repay either the funds collected under those Court orders or those previously paid voluntarily, notwithstanding that defendant may have subsequently been found not to have been the father of the child by genetic testing.
DiFrancesco v. DiFrancesco, App. Div. (per curiam) (4 pp.) In case where defendant had waited twenty-four years before making application to the Family Part for the enforcement of litigant’s rights and the entry of judgment for child support arrears – which she stated had not been paid since “day one” – the court should not have entered a $30,000 arrears order and wage garnishment against plaintiff without making express findings of fact and conclusions of law in the face of the parties’ conflicting positions; without a coherent and careful examination and weighing of all of the essential factors as required by Tancredi and Dunne, the case must be remanded.
Lewis, etc. v. Schlaifer, App. Div. (per curiam) (10 pp.) On child support modification request, although the motion judge was understandably critical of defendant’s late supplemental certification, and while defendant should have filed a timely request for a protective order or for an extension of time, the panel finds that the financial information submitted in defendant’s original and timely certification was sufficient to warrant an adjournment so that the Court could consider the substance of supplemental certification, rather than dismissing defendant’s modification request. The award of counsel fees to plaintiff was a reasonable exercise of judicial discretion, but imposing an additional $500 sanction against defendant was not.
Rein v. Rein, App. Div. (per curiam) (5 pp.) After child support reduction ad been reversed and the court ordered arrearages repaid, the judge apparently intended to fix a nominal ($10 per week) arrearage repayment rate, but only pending the prompt completion of an audit by the probation department to determine the exact amount of the arrearage, when a more realistic repayment rate should be set; remand is now necessary to set the exact amount and repayment type.
Toscano v. Blazic, App. Div. (per curiam) (8 pp.) There was substantial evidence for the judge to conclude that the mother should provide health care coverage for the parties child through her new husband’s employment, and that the father should reimburse the mother therefore, since the father’s uneven employment history had made it difficult to maintain the coverage he was obligated to provide in the divorce judgment; however, the panel is unable to ascertain from the record the justification for ordering the father to continue to reimburse the mother for his coverage obligation at the rate ordered. Apparently, the parties’ child was able to be added to the new husband’s policy at no additional cost; and if the costs to provide family medical insurance coverage are the same regardless of the number of children, it is unreasonable to ask the defendant father to be responsible for almost the entire cost of plaintiff-mother’s family’s medical insurance coverage.
Sundberg v. Antinore, App. Div. (per curiam) (6 pp.) The panel reverses and remands judge’s denial of defendant’s application for a reduction or termination of his child support obligation based, inter alia, on his disbarment and incarceration; while the judge considered one prong of the test under Bergen County Bd. of Svcs. V. Steinhauer – considering that defendant expected 15-month incarceration for theft of government funds would be short term and therefore would not constitute a change of circumstances – he made no findings with respect to the second prong of the Steinhauer test, as to the extent of either of the parties’ assets. The judge on remand also must consider the disbarred defendant’s current ability to earn income.
Giambrone v. Giambrone, App. Div. (per curiam) (4 pp.) Defendant failed to sustain his burden of proving changed circumstances and a down turn in his delicatessen business where, at the time of the divorce, the defendant earned $15,000 annually, and, in the year prior to the motion, he had earned $16,900.
Shaddow v. Felix, App. Div. (per curiam) (4 pp.) Although plaintiff’s income had decreases at the time of his “changed circumstances” application, he had only just embarked on his new position, and it was impossible to determine whether his income would remain at the stated level or increase significantly as he generated sales and commission income; determination of changed circumstances required that the “change” be a continuing one, and such determination here could only be made after plaintiff spent a longer period of time in his new position.
O’Neill, etc. v. Nydegger, App. Div. (per curiam) (16 pp.) The appellate court agrees with the trial judge that plaintiff established a prima facie case of changed circumstances justifying disclosure of defendant’s financial information; however, remand is required for more particularized findings with respect to: (1) the amount defendant must pay in retroactive child support; (2) plaintiff’s claim for unreimbursed health care and work-related expenses; and (3) plaintiff’s application for counsel fees.
Jenny v. Jenny, App. Div. (per curiam) (14 pp.) The court affirms many of the rulings of the trial judge, including his imputation to plaintiff of income, for purposes of determining child support resulting from the exercise of stock options; however, the court reverses the judge’s retroactive modification of child support, finding no substantial reason therefore in the present case. Although plaintiff failed to supply defendant with his financial information as required by the parties’ consent order, her merely did nothing and his failure was not fraudulent; and, more importantly defendant did not provide her information either, and she took no steps to obtain plaintiff’s information before filing her motion four years after the consent order.
Burns v. Ferratti, App. Div. (per curiam) (3 pp.) In this case where each parent had residential custody of one child, and each paid the other child support, the judge did not err in ordering limited retroactive child support relief to defendant to equalize the support obligations; N.J.S.A. 2A:17-56.23a allows relief retroactive to the date on which the motion for modification of child support is filed.
Keegan v. Keegan, App. Div. (Linter, J.S.C., t/a) (10 pp.) The applicability of the antiretroactive child support statute – N.J.S.A. 2A:17-56.23a – is limited to prevent retroactive modifications decreasing or vacating orders allocated for child support, and does not apply to prevent retroactive increases in such support. [Approved for publication Dec. 8, 1999.]
Thomas, etc. v. O’Conner, App. Div. (per curiam) (8 pp.) Although affirming other aspects of the judge’s decision refusing to modify visitation, denying counsel fees and determining that plaintiff was obligated to reimburse defendant for certain of the daughter’s unreimbursed medical expenses, the panel reverses and remands that part of the judge’s determination reducing defendant’s obligation to pay child care costs from the 58% previously ordered to 50%, and capping defendant’s weekly payment; inter alia, the court notes that: (1) on plaintiff’s motion seeking recovery of defendant’s portion of increased child care costs, defendant had not cross moved for modification of the original appointment, and did not present any evidence of change of circumstances; and (2) the judge gave no reasons for finding the child care costs “prohibitive,” and made no findings of changed circumstances warranting the modification.
Buckley v. Buckley, App. Div. (per curiam) (8 pp.) The court remands, finding the factual record insufficient to provide meaningful review of the judge’s conclusions which: (1) included clothing and telephone expense in the daughter’s college costs; and (2) required defendant to pay the cost for his son’s private secondary education.
Carswell v.
Hirschberg, App. Div. (per
curiam) (10 pp.) Even though plaintiff provided accounting support for
defendant’s share of unreimbursed medical expenses when he deducted those
amounts from alimony, in the context of this longstanding litigation over
support and custody, court orders that future alimony be paid through probation
office.
Fenech v. Nizza, App. Div. (per curiam) (9 pp.) Where settlement agreement provided for the father to contribute to the child’s college education, but father and daughter had not communicated for five years because, according to the father, the mother had prevented that communication, trial court should have held evidentiary hearing to determine the circumstances of the estrangement.
Bodie v. White, App. Div. (per curiam) (4 pp.) Judge properly denied defendant’s application to reduce his weekly child support payments, declining to apply the self support reserve test; the judge found defendant underemployed and capable of earning more than the income he received as a physical fitness trainer, and appropriately imputed income to defendant, although not in a specific amount.
Schwarz v. Schwarz, App. Div. (Wallace, Jr., J.A.D.)
(14 pp.) Although the court has found no published opinion regarding the
application of the other-dependent deduction, it notes that Appendix IX-A of
the court rules provides that, in considering the use of this adjustment, the
trial judge should apply certain guidelines; the record reflects that defendant
complied with the rule’s requirements and submitted three separate support
calculations which the guidelines indicate must be prepared. Thus, although correctly reducing the defendant’s child support obligation due
to changed circumstances, the judge erred in failing to calculate and apply an
other-dependent deduction or to explain why such a deduction was not
applicable. Remand is required for
reconsideration of this issue, on which remand the court shall consider the
changed circumstances and their effect on defendant’s request to change his
life insurance beneficiary designation to include his new wife and new child.
[Approved for publication Feb. 18, 2000.]
Costa v. Costa, App. Div. (per curiam) (5 pp.) (1) Judge correctly stayed defendant’s support obligation and vacate the bench warrant due to his incarceration. He also correctly credited defendant’s arrears effective to the date of his daughter’s emancipation. The judge did not err in refusing to honor defendant’s request to credit his support retroactive to his date of incarceration. (2) Defendant’s challenge to the quantum of equitable distribution reflected in the QDRO should have been raised on a direct and timely appeal and is now time-barred; defendant cannot collaterally attack a judgment through the guise of challenging the factual underpinnings of the judgment or an expert retained to report on such facts.
Davin v. Davin, App. Div. (per curiam) (6 pp.) There was no justification for the judge’s arbitrary reduction of the needed child support based on the child’s relocation to Florida and plaintiff’s stated intention to incur expense in visiting the child there twice a month; since the undisputed evidence was that plaintiff had only visited the child three times over the prior ten-month period. The judge’s decision was based merely on a prediction of what plaintiff might do in the future; an appropriate monetary adjustment could be made with respect to actual visits.
O’Neill, etc. v. Nydegger, App. Div. (per curiam) (3 pp.) The panel affirms the order increasing defendant’s child support obligation retroactively, and denying plaintiff counsel fees.
Chernek v. Chernek, App. Div. (per curiam) (5 pp.) The judge erred in reducing defendant’s child support obligation, even though he recognized that defendant did not produce enough information to warrant relief under Lepis. The party moving to reduce his support obligation must satisfy the burden of showing changed circumstances, and, in granting plaintiff the opportunity to seek reconsideration if she found that defendant’s representations concerning his income were inaccurate, the judge misplaced the burden of proof.
Dorsey v. Dorsey, App. Div. (per curiam) (6 pp.) Plaintiff’s motions either sought a review of prior Family Part decisions that had been adjudicated and resolved on appeal, or made applications that were not supported by either adequate, or any, documentation; the judge reviewed each of the standards enunciated in Newburgh in detail, concluding that he could not grant the relief requested absent current and relevant information.
Sloan v. Craker, App. Div. (per curiam) (2 pp.) The court below properly denied plaintiff’s application to require defendant to pay child support arrears from 1987-1997, since defendant’s child support payments were suspended by a court order entered in 1986; plaintiff never appealed that order, and it would be inequitable to now require defendant to make such payments.
Moore-Blakely, App. Div. (per curiam) (7 pp.) In awarding plaintiff a child support increase retroactive to the date of the mailing of her motion, the judge accurately applied N.J.S.A. 2A:17-56.23a, which prohibits retroactive modification of child support except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed; this is not inconsistent, as argued by social services on behalf of plaintiff, with the federal mandate of 42 U.S.C.A. 666(a)(9)(C). Assuming arguendo that federal law gives discretion to the motion judge to make the increase retroactive to the date of an initial request for review of child support made to the State agency, and assuming that such a request could be considered the equivalent of a petition for modification, the record shows no more that that the delay between plaintiff’s agency request for child support review and the county’s motion for modification filed on her behalf two and a half years later was the product of a combination of delay on the part of all involved; there is no abuse of discretion in the judge’s determination.
Taylor v. Walker, App. Div. (per curiam) (6 pp.) Defendant’s request for a downward modification of child support was appropriately denied because he voluntarily moved to South Carolina and accepted a lower paying job.
Onofri v. Marbach, App. Div. (per curiam) (2 pp.) Child support order is affirmed, the panel rejecting defendant’s renewed arguments that the support should be established in accordance with the terms of the 1988 PSA, rather than the Child Support Guidelines; that he should be able to claim child care expenses for the children of his present marriage if the guidelines are not used; and that he should be given credit for time his children spend with him in accordance with the visitation/parenting agreement in the PSA.
Markey v. Markey, App. Div. (per curiam) (4 pp.) The Family Part judge properly dismissed son’s suit against his mother, seeking to enforce his right to child support to the mother, she still had to feed, clothe and house her children; thus, any arrears mist be paid to her, not directly to the child. While the son is correct when he states that both parents are obligated to support their child, the court cannot disregard a valid court support order providing that the father should pay the support, simply because the son refuses to be bound by his parents’ agreement.
Offner v. Lewis, App. Div. (per curiam) (11 pp.) Judge did not abuse his discretion: (1) in concluding that child support should be retroactively reduced to the date on which defendant ultimately complied and supplied the requested financial information to the plaintiff, rather than the date after defendant filed his initial motion requesting the reduction; and (2) in assessing counsel fees against defendant and in favor of plaintiff, since the matter was in part to enforce plaintiff’s litigant’s rights, and defendant had acted inappropriately in withholding ordered payments in anticipation of an assumed credit.
Toscani v. Toscani,
App. Div. (per curiam) (4 pp.) Since defendant was the party seeking
modification of child support, based upon an alleged change in his financial
circumstances, it was his obligation to establish existence of that change;
since he did not submit appropriate financial information, and the trial court
admitted that it did not know defendant's current income, then, a fortiori,
defendant had failed to establish changed circumstances and the reduction
should not have been granted.
Lubertazzi v. Mos, App. Div. (per curiam) (6 pp.) The court reverses order which directs defendant to pay a certain amount in weekly child support for his four children through the Probation Department, effectuated by way of a wage execution. The judge erred in refusing to consider, in his child support award for the four toddlers under the Child Support Guidelines, another continuing child support obligation which the defendant had for another child of a different relationship; his impression that he could not consider this additional support obligation unless it was being deducted from defendant's pay check by virtue of a prior support order enforced by a wage execution was mistaken. Further, there is nothing in the record that would indicate the necessity of a wage execution against defendant.
Ewing v. Hart, App. Div. (per curiam) (3 pp.) Plaintiff's income had never been determined due to his failure to fully disclose his financial information; thus each child support order was subject to ongoing review. The hearing officer in this matter properly calculated arrears and re-examined the financial data submitted by each party; the judge's order incorporating his imputation of $30,000 income to plaintiff and fixation of child support is affirmed.
Wiedaseck v. Wiedaseck, etc., App. Div. (per curiam) (4 pp.) On defendant/former wife's appeal of an order which modified the child support obligation of plaintiff/former husband, the court agrees with both parties that additional discovery should be provided so that each party can fully explore the financial condition of the other.
Murnen v. Murnen, App. Div. (per curiam) (5 pp.) The court affirms post-judgment matrimonial order which reduced defendant's child support obligation by one-third from the amount agreed upon by the parties in their PSA in 1995, based on the judge's finding that plaintiff's earned income constituted changed circumstances. When the parties' finances are considered in their entirety, it is apparent that the modification allowed by the judge does not undermined the foundation of the PSA, as argued by plaintiff.
Decter v. Decter, App. Div. (per curiam) (2 pp.) Judge properly denied defendant's application for a reduction in child support due to his failure to supply financial records and documentation necessary for a fair determination of the issue; defendant is not foreclosed from making a proper application so supported.
Butterfield v. Butterfield, App. Div. (per curiam) (4 pp.) Judge accurately found that defendant, who knew he owed child support, yet didn't pay anything and moved from state to state without letting plaintiff and the probation department know his location, did not come into court with clean hands; thus, the judge properly denied the defendant's motion seeking to set aside the default judgment, entered ten years earlier, conveying his interest in the former marital home to plaintiff in lieu of child support arrearages.
Sheridan v. Sheridan, App. Div. (per curiam) (11 pp.) (1) As addressed in Youssefi, while N.J. did not have "continuing exclusive jurisdiction" because neither party nor their children now reside in N.J., since the N.J. order is the only order setting defendant's child support obligation, it controls and must be recognized; trial court's determination that it had jurisdiction over this child support matter is affirmed. (2) The court erred in enforcing the child support obligations contained in the divorce judgment because the custody and living arrangements had changed; and the husband did not have an opportunity to address the child support enforcement issues. (3) The court did not err in ordering the husband to reimburse plaintiff for medical expenses. (4) Investigation at a plenary hearing is required to determine the parties' intent with respect to cost of living adjustments in that portion of the husband's military pension payable to the wife.
Ng v. Ng, etc., App. Div. (per curiam) (3 pp.) The judge properly denied defendant's request for increased child support, since defendant made no showing that there had been any change of circumstances after the original level of support was set, let alone one that would justify an increase. The judge erred in awarding counsel fees to plaintiff, however, since he did not consider all of the appropriate factors necessary for such an award.
Cool v. Rosati, App. Div. (per curiam) (3 pp.) The motion judge did not abuse his discretion in requiring plaintiff to make a modest contribution toward his estranged daughter's post-high school educational expenses. Further, the judge did not abuse his discretion in entertaining defendant's motion, since she produced tax returns for plaintiff's review in accordance with a prior court order on the return day of the motion.
Muller v. Mollozzi, App. Div. (per curiam) (4 pp.) The court agrees with defendant that the modified child support award is lower than the amount established by the child support guidelines, and exercises its original jurisdiction to perform the basic arithmetic calculation required to derive the appropriate award. However, the court does not agree with the defendant's contention that the modified award should be made retroactive to the date of the filing of her initial application, since plaintiff was never noticed of that application; the judge properly made the award effective as of the time the opposing party received notice of the motion.
Wolhar v. Suszczynski, App. Div. (per curiam) (3 pp.) Although defendant may not be the "poster boy of deadbeat dads" as described by the trial judge, the record was adequate for the judge to conclude that defendant was not completely honest with the court, and he should have been able to pay his arrears.
Ferguson v. Logan, etc., App. Div. (per curiam) (3 pp.) The court affirms that portion of a post-judgment order directing defendant/mother to pay $78 per week in child support, as well as 40% of college expenses for the couple's then eighteen-year old son. The judge was aware that the boy was scheduled to graduate from high school, but rejected the mother's contention that her support should terminate as of that date. Although the appellate court cannot fix with precision the amounts due for college tuition and books, the record is clear that the son is living in an apartment, incurring rent and utility costs, as well as costs for food, clothing and necessities, to which his mother should contribute. The mother has not established that the $78 per week duplicates any portion of the college expenses for which she is responsible.
Silva v. Hill, App. Div. (per curiam) (3 pp.) The Family Part order modifying defendant's child support obligation for his two children is affirmed, the court rejecting defendant's argument that, because of the non-traditional custody arrangement between defendant and his ex-wife, good cause existed to support a deviation from the guidelines. Defendant's custodial time with his children does not meet the definition of "three overnight periods" under the guidelines.
Campion, etc. v. Montagna, App. Div. (per curiam) (7 pp.) (1) The motion judge did not abuse his discretion in deviating from the child support guidelines since the parties' son had reached majority and was no longer enrolled in secondary education. (2) The judge correctly ordered plaintiff to amend her tax return to allow defendant to take the dependency exemption for the son, pursuant to the terms of the PSA. (3) Although there was a presumptive change of circumstances, the judge's order of an increase in child support, however, cannot be affirmed as he lacked the specific information required to make an informed decision; remand is required for the production of, inter alia, current as-of-the-motion-date CIS forms from both parties and more specific information regarding the son's college educational expenses.
Jordan, etc. v. Muhaw, App. Div. (per curiam) (15 pp.) The court affirms an order setting defendant's child support arrears at $25,955 and requiring liquidation thereof by lump sum payments, and denying defendant's request for a credit against the arrears for the value of his interest in a parcel of real property acquired by the parties during their post-judgment cohabitation.
Velez v. Velez, App. Div. (per curiam) (4 pp.) When the parties agreed to change their son's living situation, and the boy went to live with defendant, the parties agreed that defendant's child support payments to plaintiff would stop, and that plaintiff would pay no child support to defendant. Nine months later, defendant moved for child support from plaintiff. The judge did not err when he denied the application, finding that insufficient time had elapsed between the parties' agreement and defendant's application to permit a finding of the requisite changed circumstances.
Predale, etc. v. Predale, App. Div. (per curiam) (6 pp.) Judge correctly denied mother's motion for child support arrears, as the father's child support obligation expired when he obtained custody of the child with the mother's consent, which was at least implied by her failure to contest it; N.J.S.A. 2A:17-56.23a did not bar cancellation of arrears which accumulated against the father after the custody change. The judge also correctly granted the father's motion requiring the mother to pay 50% of the child's health care expenses.
Esposito v. Esposito, App. Div. (per curiam) (15 pp.) The panel holds that the judge's lack of factual findings and conclusions dictate reversal of his (1) denial of defendant's application to compel plaintiff to contribute toward the college education expenses of their child; and (2) fixing of the amount of plaintiff's child support obligation. In denying the college contribution request, the judge focused only on the lack of a relationship between plaintiff and her son, and not on any of the other Newburgh factors. If the trial court intends to rely upon the relationship factor, the cause of the deterioration of that relationship is also a relevant consideration. As to the child support determination, the record is unclear and incomplete.
Borai, etc. v. Crosby, App. Div. (per curiam) (3 pp.) Defendant's motion to entirely terminate his child support obligation was justifiably denied, since he had already been granted a significant modification of his support obligation a year earlier based on his disability and deteriorated economic situation. He did not show that he had experienced such a further change in circumstances as would warrant an additional adjustment.
Berthoud v. Berthoud, App. Div. (per curiam) (2 pp.) Defendant was forced to file an enforcement motion when plaintiff failed to make insurance premium payments which he was required to do to insure uninterrupted coverage for the minor child. The court finds that the trial judge properly granted defendant's motion, and awarded her $930 in counsel fees. The court rejects plaintiff's contention that the trial court should not have considered the motion because he had made the past due payments prior to the return date of the motion.
Seiden, etc. v. Newman, App. Div. (per curiam) (4 pp.) In "yet another revisit of an ongoing dispute between [the parties] regarding child support payments and credits for the parties' oldest child," the court affirms the Family Part judge's order: (1) denying defendant's motion for a $43,000+ credit/payment against the plaintiff related to child support; (2) directing a probation audit of defendant's child support arrearages; and (3) directing defendant to make future child support payments to plaintiff's lawyer for direct remittance to plaintiff.
Rath v. Rath, App. Div. (per curiam) (5 pp.) (1) Despite fluctuations in defendant's income, the court below properly denied his 1999 motion seeking a reduction in his support obligation and the arrearages he owed; since defendant, on appeal, states he has not worked since Feb. of 2000, this ruling is without prejudice to his filing a new application for such relief, is appropriate, with the Family Part. (2) The court reverses and remands that portion of the order which entered an almost $800 judgment against defendant based on his allegedly wrongly taking a tax exemption for the parties' children; further evidence needs to be developed below regarding this issue.
Morita v. Morita, App. Div. (per curiam) (4 pp.) Where after defendant's appeal of the denial of his application for modification of his child support obligation the child ceased attending private school and now is in the care and custody of the Division of Youth and Family Services rather than residing with plaintiff, the issues on appeal have been rendered essentially moot; the matter is remanded to the trial court for reconsideration, with DYFS' involvement, of all provisions of the order under review; whatever visitation mechanism are ordered in respect of either parent must be the result of the trial court's own considered evaluation and not the delegation of authority to any mental health professional or other person or agency.
Keorlet v. Keorlet, App. Div. (per curiam) (6 pp.) The court affirms the Family Part judge's denial of defendant's motion for modification of his child support obligation. Inter alia, the divorce took place only seven months before defendant moved for relief. At the time he agreed to the divorce settlement, he was unemployed; therefore, since he was at least employed at the time he brought the motion, his situation had, if anything, improved. The judge also found that defendant had voluntarily accepted employment that was at an income significantly lower than his previous earning level, without presenting any evidence of a diligent search in his chosen field.
Bellardino v. Bellardino, App. Div. (per curiam) (10 pp.) Despite plaintiff's desire that certain of the defendant's obligations for his share of the children's extra-curricular expenses, pre-school tuition, and college fund be paid to her directly with his regular child support payment, the judge did not abuse his discretion in denying that request and ordering, instead, that the parties create a joint account into which each could deposit his or her contributions.
Cybulski, Sr. v. Cybulski, App. Div. (per curiam) (6 pp.) The trial judge properly found that defendant had failed to sustain her burden of proving her right to recover child support arrears for the years 1989-1991. From 1992 until the divorce hearing in 1999, defendant never made a formal motion to set arrears, although numerous orders were entered during that period pertaining to support and arrears accruing after 1992. Although neither party's testimony was particularly satisfying -- and the court is not convinced either that no arrears were due, or that any arrears were due, for the pertinent period -- when the evidence is in equipoise, the panel can find no basis for interfering with the judge's conclusion that defendant failed to sustain her burden of proof.
Giordano v. Giordano, App. Div. (per curiam) (2 pp.)Although it might have been preferable for the judge to have granted defendant oral argument on plaintiff's child support application, the court cannot conceive of any legitimate argument, based on the record and applicable law, that would have changed the equitable result and award reached by the judge.
Stamato v. Stamato, Jr., App. Div. (per curiam) (8 pp.) The appellate panel agrees with the plaintiff that she made a prima facie showing of changed circumstances for an increase in child support, given the nine-year maturation of the now-teenaged children since the divorce, along with their increased expenses, and the children's entitlement to share in defendant's good fortune in the sale of his business for over $30 million. The fact that plaintiff also had improved finances and could, by herself, support her children's needs should not afford defendant an avenue for escaping his financial obligation.
Anderson v. Anderson, App. Div. (per curiam) (8 pp.) On plaintiff's application, the motion judge found changed circumstances and entered an order increasing defendant's child support obligation. On plaintiff's appeal, the court reverses, and remands, agreeing with plaintiff that the support order was insufficient, and that the judge should have ruled on the other issues presented in her motion, regarding life insurance, health insurance, and attorney's fees.
Curtis v. Chastain, App. Div. (per curiam) (20pp.) After two appeals resulted in decisions that the child support ordered below was too low, on defendant’s third appeal, the trial court’s denial of her claim for child support arrears in reversed. The trial judge failed to consider plaintiff-father’s income and expenses and did not supplement the support guidelines for income over $52,000. The court sets forth a methodology for a new worksheet regarding social security payments to plaintiff’s two sons from a previous marriage. Despite defendant’s move to Texas, the child support guidelines must be applied on remand.
Lei v. Lei, App. Div. (per curiam) (6 pp.) The court affirms the denial of defendant's motion seeking to modify his child support payments, since the issue of reduction based on defendant's disability and reduced-income status had been recently considered and there had been no change in income circumstances since the entry of that order.
Jones v. Jones, App. Div. (per curiam) (13 pp.) (1) The trial court did not make the findings required to justify the increase in plaintiff's child support obligation; defendant's application for such relief must be remanded for reconsideration. (2) Since plaintiff was fully aware of his daughter's intention to apply for admission to private parochial high school -- which had been his wish during the marriage, and which school his son had already attended -- and made no objection to this plan, the court did not abuse its discretion in ordering plaintiff to contribute to the costs of the daughter's education at that private school.
Essex Cy. Div. of Welfare, etc. v. Harris, Jr., App. Div. (per curiam) (4 pp.) The evidence makes it abundantly clear that defendant is unable to pay any child support, as he is totally disabled and his total income is below poverty level. The judge did not err, therefore, in terminating defendant's child support obligation.
Ruiz v. Anjos, App. Div. (per curiam) (6 pp.) On plaintiff's motion seeking support arrearages and other relief, and defendant's cross-motion for support relief due to changed circumstances, the motion judge erred in reaching his conclusion -- that defendant was in willful contempt of court -- on the papers and without holding a plenary hearing. Inter alia, there is a material factual dispute concerning defendant's income and source of income, and his consequent ability to comply with the court's prior order.
Mayewski, etc. v. Ingrassia, App. Div. (per curiam) (6 pp.) The Family Part judge properly denied defendant's request to terminate child support for his daughter, who, although living at home, was paying the costs of her college education herself, and even though some of the funds she used had voluntarily been provided by defendant. Although defendant had not been advised that his daughter had become pregnant and dropped out of school, and he continued to pay support, the judge found no fraud. Instead, he discontinued defendant's support obligation for a year, and ordered that it should be reinstated if the daughter went back to school full-time.
James v. James, App. Div. (per curiam) (4 pp.) In the face of defendant's erratic employment history, the plaintiff insisted on a specific provision in the parties' PSA which provided that child support payments were not to cease because of defendant's lack of employment. Later, defendant moved for reduction of child support on exactly such grounds. The trial judge properly denied such relief, finding that defendant's capacity to earn had not changed and, in fact, his lifestyle after remarriage had substantially improved, as defendant's new spouse earned a comfortable income and defendant did not have much incentive to earn more.
Sine-Coughlin v. Coughlin, App. Div. (per curiam) (5pp.) The effective dates of defendant’s support obligations, entered after his motions for modification based on changes in the children’s residential status, is affirmed with respect to one daughter but reversed with respect to another based on an interpretation of a prior support order.
Maher v. Schaible, etc., App. Div. (per curiam) (11 pp.) The panel affirms the judge's numerous post-judgment rulings in this matter involving plaintiff's obligations to defendant for arrears in child support, medical and dental expenses, and private schooling costs; defendant's taking the children as tax exemptions; and the award to defendant for counsel fees and costs, to be paid by plaintiff.
Kohlmann v. Kohlmann, App. Div. (per curiam) (12 pp.) Plaintiff fell far short of showing that the substantive provisions of the Family Part judge's order -- dealing with the youngest child's custody, visitation, and medical care -- can in any way be considered an abuse of the judge's discretion in handling such questions. However, the panel is constrained to reverse that portion of the court's order which declined to modify plaintiff's child support obligations, since the amount was initially set at the time of the divorce in 1989, and has never been modified, even though the oldest child has been formally emancipated and the middle child has moved in with plaintiff.
Watson v. Watson, Jr., App. Div. (per curiam) (6 pp.) Social Security benefits paid directly to defendant's children should have been credited to his child support arrears from the date defendant and the children began to receive such benefits. The motion judge erred in denying such relief, apparently misconstruing the relief sought by defendant as an application for retroactive modification of his child support obligation.
Klinge v. Klinge, etc., App. Div. (per curiam) (7 pp.) The court agrees with plaintiff that: (1) the motion judge twice subtracted the same child support and medical reimbursement figures from the sum owed her for her share of the marital residence; and (2) the unreimbursed medical expenses owed by plaintiff were overstated. Plaintiff's other contentions are without merit, including her challenge to the judge's order of payment out of plaintiff's equity in the marital residence to satisfy the fee award to her former attorney rendered by the District Fee Arbitration Committee. The appellate panel has no jurisdiction to review such an award.
Shadis v. Zydzik, etc., App. Div. (per curiam) (4 pp.) Order reducing plaintiff's child support obligation retroactively must be reversed because: (1) plaintiff's motion was not properly supported by a CIS; (2) the motion should not have proceeded without oral argument; and (3) the judge failed to provide findings of fact and conclusions of law.
Clark v. Clayton, App. Div. (per curiam) (4 pp.) Although, after the support order was entered, the judge forwarded to counsel a child support guidelines worksheet purporting to result in plaintiff's weekly support obligation, it is clear that certain disputed items were not included in the calculation -- particularly a $250 per week child care expense claimed by plaintiff -- and that inclusion of such items would drastically change the resulting calculation. Since the judge did not give a statement of his reasons for the decision, the panel cannot effectively review the order. Remand is required.
Henry v. Patterson, App. Div. (per curiam) (4 pp.) The trial judge's calculation of child support and award of counsel fees to plaintiff is not supported by the record, and remand is required. Inter alia, there were no findings to support the imputation of income to either defendant or plaintiff; nor were the counsel fee factors or analysis required by Chestone v. Chestone considered.
Bagley v. Bagley, App. Div. (per curiam) (4 pp.) The defendant was justly ordered to make payments towards his daughter's college and medical bills. The record does not show sufficient change in circumstances warranting a modification of the prior orders compelling him to pay; nor does it establish that the trial judge mistakenly exercised his discretion.
Mazzarell v. Mazzarell, App. Div. (per curiam) (5 pp.) All of the trial judge's orders are affirmed with the exception of his reduction of defendant's weekly child support obligation, which is remanded. Although the judge referred to the statutory criteria for determining the correct amount of child support, he never explained how any of the criteria were applicable to the present situation. Nor did he explain why the daughter's relocation from her mother's home to live with defendant should not result in a larger reduction in the support obligation. Finally, the judge did not make any findings on plaintiff's contention that he had experienced a significant reduction in income.
Gilbert, etc. v. Calabrese, App. Div. (per curiam) (9 pp.) The judge appropriately exercised his discretionary authority by finding that a separate hearing would not be necessary to determine the defendant-father's child support, college expense, automobile and medical contribution obligations. The parties had presented the court with the necessary information, and the judge took the relevant Newburgh criteria into consideration. He also considered the strain in the relationship between defendant and his son.
Kenny v. Kenny, App. Div. (per curiam) (6 pp.) The trial judge aptly found defendant to be in violation of litigant's rights for failure to abide by the terms of the parties' PSA requiring him to pay for half of the children's summer camp costs. Despite defendant's contention that plaintiff failed to consult him before signing the children up -- one for sleep-away and one for day camp -- he acknowledged that he was aware of the plans for 10 months before camp started, and never objected. Nor did he first seek mediation of the dispute as the PSA required.
Ur-Britt v. Ur, App. Div. (per curiam) (4 pp.) Although the court below issued an order increasing defendant's child support obligation based on an apparent change in his income, as well as a finding of imputed income to the plaintiff, the court further directed plaintiff to submit to an evaluation by an employability expert for the purpose of allowing a more accurate imputation of income to her. The court further granted defendant's broad discovery request, and scheduled a case management conference and plenary hearing date in the future months. Since the very issue that is the subject of this appeal, child support, has not been conclusively determined, but, rather, has been expressly reserved for further discovery, proof and determination by way of plenary hearing, the court dismisses this appeal as interlocutory.
Dina v. Dina, App. Div. (per curiam) (4 pp.) The evidence clearly demonstrated that defendant had significant assets and the ability to generate substantial income. The trial judge's finding that defendant failed to establish a change of circumstances sufficient to warrant a reduction in support is substantiated by sufficient credible evidence in the record.
Schemm v. Huber,
App. Div. (per curiam) (2 pp.) Where, as a result of a subsequent marriage and
divorce, appellant has sole custody of two children pursuant to a judgment of
divorce entered in Austria that does not allocate any dollar amount for support
payments, the trial judge's determination that appellant is entitled to the
Other Dependent Deduction in the Child Support Guidelines, but not for a Prior
Child Support Order, is affirmed.
Menaged v. Menaged, App. Div. (per curiam) (14 pp.) Accrued and unpaid pendente lite child support is different from counsel fees; because such orders pertain to the welfare of children, where the final decree of divorce is silent, there is no automatic expungement of such arrears.
Leo v. Leo, Sr., App. Div. (per curiam) (4 pp.) On the facts of this case, the trial court did not abuse its discretion in declining to compel the parties' daughter -- a sophomore enrolled at Fordham -- to seek student loan funding at the present time. Inter alia, the record supports the defendant's ability to contribute to his daughter's education, the daughter contributes to her education through a part-time or summer job, and she already receives a substantial academic grant.
Delano v. Downey, App. Div. (per curiam) (3 pp.) The trial court did not err in failing to vacate a default judgment against defendant, based upon a finding that he owed over $80,000 in child support payments, since defendant did not establish his eligibility for relief under the rule with sufficient clarity, either in respect of having an excusable basis for failing to oppose plaintiff's earlier motion for enforcement of litigant's rights relative to child support arrearages, or with regard to the existence of a meritorious defense in that connection. Nor did the court err in requiring that defendant reimburse plaintiff for medical and dental expenses and provide medical insurance for the child, as the parties' property settlement agreement clearly imposed this obligation on defendant.
Benisch v. Benisch, App.
Div. (Lesemann, J.A.D.) (11 pp.) In applying the Child Support Guidelines in a
case where a child is to spend precisely equal amounts of time with each of his
divorced parents, the trial court should either set out some rational basis for
its designating one parent as the Parent of Primary Residence (PPR) and the
other as the Parent of Alternate Residence (PAR), or should otherwise divide
equally between the two parents the benefit of the PPR designation, or
designate both parents as PPR. [Approved for publication Feb. 6, 2002.]
Rubinstein v. Rubinstein, App. Div. (per curiam) (7 pp.) The panel affirms the Family Part judge's order increasing the plaintiff's child support obligation, effective as of the filing date of defendant's motion. The judge did not miscalculate the award, nor did he err in: refusing the make the increase retroactive; only giving one child a "teenage" support enhancement; deducting plaintiff's student loan payment from his gross income in calculating support; or refusing to allow defendant counsel fees.
Fedorow v. Fedorow, App. Div. (per curiam) (10 pp.) The motion judge erred in failing to give defendant a credit against his child support obligation for the amount of the social security benefits being received by his daughter as a result of his retirement. A plenary hearing is required to reevaluate child support on remand, in light of the conflicting certifications of both parties' changed circumstances. In light of defendant's challenge to plaintiff's assertions concerning her disability and the disability and increased medical problems of the child, the judge should require plaintiff to provide documentation of these critical matters on remand.
Tufaro v. Ettman, App. Div. (per curiam) (4 pp.) While not condoning defendant's apparent violation of prior court orders requiring production of financial information regarding the sale of his business, the appellate court nevertheless holds that the present record supports the judge's determination, utilizing the revised child support guidelines, that defendant had shown sufficient changed circumstances for a reduction in child support. It is also noteworthy that plaintiff's own income had increased from roughly $63,000 to $100,000 per year, supporting the reduction.
Bailey v. Bailey, App. Div. (per curiam) (4 pp.) The Family Part judge properly rejected defendant's contention that his child support obligation should have been reduced or eliminated when his estranged wife moved with their son, without his or the court's consent, from Gloucester County to Philadelphia. The judge essentially found that plaintiff's move was in good faith, and granted her permission to relocate nunc pro tunc. Moreover, the move was only 25 miles away, and did not interfere with defendant's parenting time.
Napolitano v. Napolitano, App. Div. (per curiam) (13 pp.) The fact that one of the parties' daughters was emancipated on entering the military was only one factor that needed to be considered by the motion judge to determine a new amount of child support; a court needs to know the full financial picture of the parties before it can determine if a modification of a pre-existing child support order is warranted. Here, the judge erred in reducing defendant's child support obligation without first obtaining defendant's updated financial information. Moreover, the record demonstrates that defendant was not completely forthcoming with the court in his application.
Linden v. Linden, App. Div. (per curiam) (16 pp.) The Family Part judge properly rejected defendant's contention that his child support obligation should have been reduced or eliminated for both of his sons. Although the older son is 35 years old, he is a chronic paranoid schizophrenic collecting Social Security Disability, and there was no evidence that this condition has improved or that he can support himself; defendant's assertion that he is employable at least on a part-time basis is belied by the employment records which show that the son has failed to remain employed by more than 60 employers. As to the younger son, presently in his last year at Lehigh, the court disagrees with the defendant's premise that he has obtained independent status simply because the father-son relationship is not harmonious. The estrangement was already extant when the parties negotiated the divorce settlement, and the son cannot be held entirely responsible for the continued chilled relationship. Moreover, despite his assertion that the son attend only Rutgers, there was nothing in the parties' agreement limiting him to a state school. Defendant was notified and kept apprised of the son's plans all along. [Related to 20-2-9857 below.]
Tyrrell v. Tyrrell, App. Div. (per curiam) (6 pp.) The Family Part judge aptly denied defendant's motion seeking an increase in child support, finding no change of circumstances justifying such an increase. Inter alia, the judge found that defendant had entered into the divorce consent order in contemplation of her re-marriage, and that, since the divorce and that re-marriage, she had voluntarily become underemployed, choosing to work only part-time to spend more time with her son, which she was able to do because her new husband was able to support her. He stated, "It appears that the wife has traded employment for the benefits of a marriage to a husband who can provide for her expenses."
D'Antonio v. D'Antonio, App. Div. (per curiam) (5 pp.) The Family Part judge aptly denied plaintiff's motion for reconsideration of an order fixing his child support arrearages, rejecting plaintiff's contention that part of the arrearages calculated included a sum dealing with his obligation to maintain a residence for defendant and the children, which was alimony and not child support, and hence terminated at defendant's remarriage. Although plaintiff's obligation to provide a residence was not characterized in the PSA as either alimony or child support, the panel is satisfied that, viewing the totality of the parties' circumstances, the obligation in primarily characterizable as a component of child support.
Courtney v. Courtney, App. Div. (per curiam) (10 pp.) The Family Part judge aptly denied defendant's motion seeking reconsideration of an order compelling him to pay 75 percent of his daughter's college expenses and to continue paying $550 per week child support for his three children. The record belies defendant's assertions on appeal that the judge did not properly consider the strained relationship between him and his daughter and an inheritance due to plaintiff. The judge did consider the strained relationship, but this one factor does not preponderate over the numerous other factors he also considered which weighed against defendant's position. As to the inheritance, the unrefuted evidence showed that plaintiff has not received it yet, and does not expect to for at least a year; no income can be imputed to that which she does not have.
Fiore v. Fiore, App.
Div. (per curiam) (8 pp.) In considering plaintiff's motion for a reduction in
child support based upon changed circumstances, the judge should have accepted
the evidence of the transcript of the divorce proceedings incorporated into the
judgment of divorce. Clearly this evidence dealt with the parties' assumption
that plaintiff's criminal conviction would constitute changed circumstances
justifying a support change. It is reasonable to infer that the parties
understood that the collateral consequences of such a conviction, such as loss
of licensure, might affect plaintiff's ability to earn a living and ability to
pay. While the agreement did not specify what impact that circumstance would
have on specific obligations, plaintiff certainly made out a prima facie case
of changed circumstances by virtue of his conviction. Accordingly, he was
entitled to discovery and a determination respecting his ability to pay the
support and alimony fixed by the JOD.
Garry v. Garry, App. Div. (per curiam) (4 pp.) At the time of the divorce, defendant was earning $30,000 a year managing his brother's rolling chair business on the Atlantic City boardwalk. He later lost that job and relocated to South Carolina, where he became employed part-time as a bartender. He filed for a reduction of child support based on changed circumstances, but the trial judge found that he had a duty to find employment sufficient to support his family, and concluded that he had not demonstrated that he had made substantial efforts to find full-time employment or additional part-time employment in that regard. He imputed $30,000 income to defendant and actually increased his child support obligation, based upon the guidelines. The panel rejects defendant's contention that the trial judge erred in imputing income to him, and in failing to reduce his obligation because of the loss of his unique form of employment and inability to find similar work.
Tocci v. Tocci, App. Div. (per curiam) (3 pp.) The panel is constrained to remand on defendant's appeal of the lower court's order declaring that the parties' twenty-five year old daughter was not emancipated and ordering defendant to pay support and one-half of the costs of her tuition and book costs at a state college. There is no indication that the required information regarding the parties' respective financial situations was submitted to the trial court, and that court made no findings on that issue when it entered the support order. Additionally, the court never addressed the significance of the daughter's protracted attendance (four years) at a two-year junior college. Finally, defendant complains that he has never received credits on his arrears for overpayments he made for his other daughter's support. All of these issues must be considered on remand.
Schuster v. Schuster, App. Div. (per curiam) (5 pp.) The Family Part judge did not err in ordering defendant to pay child support for his two children effective Sept. 1, 2000 -- the date on which plaintiff had undisputed custody of the children -- even though plaintiff's motion seeking to compel defendant to pay support was not returnable until Feb. 16, 2001. This did not represent impermissible retroactive modification of child support, as defendant, who previously had custody of the children, had no child support obligation prior to this decision.
Van Wagner v. Van Wagner, App. Div. (per curiam) (3 pp.) Although defendant's modification motion was made before "the ink [was] barely dry on the [divorce] judgment," the lower court nevertheless erred in refusing to consider defendant's application to eliminate or modify his support obligations. It was clear at the time of the entry of the divorce judgment that defendant had an expectation of being able to buy a business on the basis of which he contemplated being able to earn $150,000 per year. Although his support obligations were not specifically made contingent on these happenings, which did not come to fruition, everyone was aware of these circumstances. The trial judge erred when he referred to defendant's situation as a "temporary financial setback." Defendant is entitled to a hearing on his ability to pay.
Loro v. Del Colliano, App. Div. (per curiam) (22 pp.) This appeal once again addresses the issue recently discussed in Issacson v. Issacson, to wit, modification of a child support award where the supporting parent is a "high-income earner" and the income of the parties exceeds the child support guidelines. In this opinion, the court focuses on the "incidental benefits" that may accrue to the custodial parent of a child who benefits from a supporting parent's good fortune. The court concludes that the judge properly increased support to $700 per week, but that he failed to adequately address the custodial parent's entitlement to nonessential items of support, specifically, improvements to the custodial home and furniture for the child. He also erred in his methodology for computing the counsel fee award. [Decision dated Jun. 6, 2002.]
Cole v. Williams, Jr., App. Div. (per curiam) (8 pp.) Relying on Cleveland v. Cleveland and Mehne v. Hess, the Family Part judge correctly considered the disabled and unemployable defendant's personal injury settlement award in determining the quantum of child support and in ordering that certain of the proceeds of the settlement were to be placed in a trust administered by the Surrogate's Office for future child support. [Decision dated Jun. 6, 2002.]
Philipp v. Sthal, Supreme Ct. (per curiam) (36 pp. -- including underlying Appellate Division opinion) Agreeing with the dissenting judge in the Appellate Division decision below, the court concludes that, pursuant to the Uniform Interstate Family Support Act, N.J. does not have jurisdiction over an application to require the former husband, a Georgia resident, to contribute to his daughter's college education expenses, because Georgia maintains continuing, exclusive jurisdiction over the original support order entered in Georgia in 1993.
Lattimer v. Lattimer, App. Div. (per curiam) (7 pp.) As there is no analysis or reasons given for the entry of the two orders under review, the court reverses and remands on: (1) the denial of defendant's application seeking to modify or limit the scope of the order requiring him to pay tuition, room, board, books, and other "extracurricular" fees of his son's college education, and to reimburse plaintiff, his wife, for same; and (2) the denial of plaintiff's application to compel defendant to pay their son an allowance. Inter alia, there was no analysis of what the boy's expenses were, or should be, encompassed in the "extracurricular" category.
Dean v. Dean, App. Div. (per curiam) (6 pp.) Plaintiff had a right to be heard in this matter and the totality of the circumstances warrant a remand for reconsideration, after argument is heard, of the order setting child support. [Decision dated Jun. 19, 2002.]
Thompson v. Thompson, Jr., App. Div. (per curiam) (4 pp.) The judge justifiably denied defendant's application to eliminate child support arrears, noting that a later change of circumstances cannot form the basis to modify child support which accrued under the terms of an earlier child support order. The court rejects defendant's contention that he is entitled to a credit against arrearages for lump sum retroactive dependent Social Security Disability benefits; there is no evidence that the arrears accrued, as required, during the period of defendant's disability. [Decision dated Jul. 8, 2002.]
Melillo v. Melillo, App. Div. (per curiam) (12 pp.) A major issue still in dispute when the parties entered into their property settlement agreement was whether defendant was disabled; subsequently, the Social Security Administration concluded that he was, and defendant moved to modify his child support obligation. The panel concludes that there was an insufficient basis in the record to support the trial judge's conclusion that defendant's application to modify his child support obligation should be denied on the basis that he had "unclean hands" because he knowingly failed to disclose at the time the parties entered into their PSA the nature of his application to the SSA; that if he qualified for SSI benefits, amounts he received from local public assistance would be reimbursed from any retroactive amounts owed; and that the children would not be entitled to benefits. While there are certain facts that might support the judge's conclusion, defendant, for his part, contends that he, in fact, was not aware of the intricacies of his application regarding benefits for his children or reimbursement to the local authority. The matter is remanded for further proceedings as to defendant's disability and his support obligation.
Mercer v. Buel, App. Div. (per curiam) (8 pp.) The Family Part judge did not abuse his discretion in denying defendant's motion, without prejudice, to declare his educable but mentally retarded son emancipated. It was within the court's discretion to allow the expiration of a "few years" to evaluate the level of the boy's progress toward "autonomy" before deciding the emancipation issue, as recommended by the expert. In the future, if factual issues arise concerning the boy's ability to be economically self-sufficient, the court should conduct a plenary hearing to resolve the issue. The matter is remanded, however, for consideration of defendant's alternative claim that his support for the boy should be suspended in light of the boy's earnings at his current job. The order awarding counsel fees to plaintiff is also reversed and remanded, as the substance of the defendant's motion was not "unreasonable," as the trial judge found in making the award.
Mattei v. Bartolucci, App. Div. (per curiam) (2 pp.) The trial judge erroneously included defendant's current wife's income in calculating his child support obligation under the guidelines. The award is reversed and the matter remanded for recalculation of the defendant's obligation utilizing only his income.
Bassi v. Bassi, App. Div. (per curiam) (3 pp.) Since defendant refused to submit an update CIS as ordered by the court, the panel finds this refusal bars the specific relief he seeks: credit for the approximately eight-year period of his incarceration on the ground of present inability to pay the arrears otherwise due and accrued. The credit is eliminated from the judge's support order, which is otherwise affirmed. Although the guidelines do not apply on an arrears-only account, the judge had no more rational basis for setting a payment schedule due to defendant's recalcitrance, and the panel will not intervene.
Cooper v. Wakefield-Cooper, App. Div. (per curiam) (3 pp.) On
remand to set forth her calculations of the child support award, the judge
properly submitted a copy of her worksheet and demonstrated the basis of the
calculation. While plaintiff was given an opportunity to file a supplemental
brief to address the judge's submission, he has essentially argued the same
issues raised in his earlier submission which caused the remand. Despite
plaintiff's claims that he has an inability to provide the quantum of support
ordered, he has failed to provide documentation to support those claims. The
child support award is affirmed.
Krzyzaniak v. Krzyzaniak, etc., App. Div. (per curiam) (6 pp.)
The amount of child support determined by the trial court was completely in
accord with the present child support guidelines. There was no error in the
judge's refusal to impute income to defendant under the circumstances of this
case; nor was there error in ordering plaintiff to reimburse defendant for
health insurance premiums she had to pay when he did not fulfill his
obligations in that regard. However, portions of the order are reversed as no
reasons were given for the judge's: (1) relieving defendant of the prohibition
against removing the child from the continental U.S.; and (2) denying
plaintiff's request to enforce a prior counsel fee award against defendant.
Dean v. Dean, App. Div. (per curiam) (6 pp.)
Plaintiff had a right to be heard in this matter and the totality of the
circumstances warrant a remand for reconsideration, after argument is heard, of
the order setting child support. [Decision dated Jun. 19, 2002.]
Arlene J. Martina, etc. v. Carmen A. Martina, App. Div. (4 pp.) Given the subjectivity and imprecision of the multi-factor Newburgh analysis which the judge made continuously from the original child support and tuition application and on through remand proceedings, he did not abuse his discretion or commit any legal error in award made either in the amount or in the credits applied toward previous payments.
Luciana A. Lanza v. Michael A. Lanza, App. Div. (6 pp.) (1) Judge’s child-support rulings are affirmed, including the imposition of sole responsibility for children’s for children’s post-secondary education on defendant, since the judge concluded that defendant’s true income and assets might never be discoverable, and imposed the responsibility on him as the party who had demonstrated in the past the ability to generate substantial income over a sustained period.
Maryann Nittoli v. Joseph Nittoli, App. Div. (4 pp.) Trial judge properly determined defendant’s contribution to daughter’s college education at a private school, despite defendant’s assertion that daughter should attend less expensive state school, finding that if defendant had been residing at home with his family, the parties’ would have made a substantial effort to send their daughter to the private school. Judge further did not abuse her discretion in imputing income to defendant from a second job which he had quit with the knowledge that his daughter was going to school and expenses would increase.
Ludwig v. McCormack, App. Div. (4 pp.) Judge erred when he failed to make findings to justify his post-divorce order, which required father to pay two-thirds of the net college expenses for his daughter, while continuing to pay the full amount of child support for that same daughter – amounting to a combined sum which is 50 percent of his annual net income – and in refusing to consider the earning capacity of the daughter.
Kodack v. Kodack, App.
Div. (per curiam) (15 pp.) At the time of the entry of the child support order,
both children were residing at home with defendant; when the son began college,
his residential attendance there constituted a change in circumstances
warranting a re-examination of the child support order, particularly in light
of the college costs incurred. Plaintiff's child support obligation was based
on the application of the guidelines, and some of the college costs, also
included in the guidelines award, are thereby duplicated to some degree.
Gary S. Grest v. Kuldip K. Grest, App. Div. (25 pp.) On post-divorce appeal by ex-wife of various of the motion judge’s decisions, the judge erred in compelling the ex-wife to pay up to $1,000 of summer camp expenses, making no findings as to her ability to pay, not addressing the representation made that the children did not want to attend the camp, and not considering the alternative of a free municipal summer recreation program. The judge also erred in modifying final judgement to provide that both parents must agree on the children’s participation in extracurricular activities, since the ultimate responsibility for such decisions would fall to ex-wife as the primary caretaker in the absence of a change of circumstances, which were not shown.
Francine L. Garbut v. Arnold Garbut, App. Div. (14 pp.) Since there was substantial evidence of an ongoing dialogue between the parties and recognition by each of them of their additional responsibilities towards certain necessary expenses for the children, the judge’s decision ordering the husband to pay certain of these expenses was not a modification of the divorce agreement, requiring a plenary hearing, but a recognition and enforcement of the parties’ practice supported by certifications, and susceptible to a decision on the papers, therefore, with respect to contributions toward the costs of religious instruction, tutoring, college expenses, and child support arrears, the decision is affirmed, however the trial court’s order that the husband reimburse wife fore amounts she expended on son’s car loan is reserved as “unnecessary”.
Bergen Cy. Bd. Of Svcs. Etc. v. Todd Steinhauer, Chancery Div. (12 pp.) Long-term incarceration in a significant change of circumstances which prevents the child support obligor from earning money to pay child support, and where incarcerated defendant had no other assets from which to satisfy the obligation, his child support obligation will be suspended. [Approved for publication Oct. 4, 1996.]
Halliwell v. Halliwell, App. Div. (Kleiner, J.A.D.)
(24 pp.) In an appeal requiring the court to reconcile two conflicting Chancery
Division decisions addressing the effect of a support obligor’s incarceration
on a pre-incarceration support order, the panel concludes that the motion judge
here erred in failing to suspend defendant’s obligation to pay weekly support
through the probation department; although defendant’s obligation will
continue, and arrears will accrue, defendant will not be in violation of
litigant’s rights during his continued incarceration, and additional
enforcement proceedings will not be necessary.
Upon his release, defendant will be required to submit a case
information statement regarding his then-current finances and will be required
to pay child support and address arrearages. [Approved for publication Dec. 17,
1999.]
Gotlib v. Gotlib, App. Div. (8 pp.) Given the clear evidence that the parties were unable to reach any mutual agreement on matter of summer camp for children the motion judge properly stepped in and ordered defendant to pay the camp costs since plaintiff, as the custodial parent, had the ultimate authority to make the final decision.
S.T. v. E.D.J., App. Div. (2 pp.) Since defendant, the custodial parent, contributed more than her percentage share towards son’s support, an during the period under consideration, paid $6,000 for the boy’s Bar Mitzvah, the judge properly found that she was entitled to claim the boy as a dependant for tax purposes, and denied plaintiff’s application to do so, despite the fact that he paid more than the maximum child support fixed by the guidelines, and paid 60% of both the health and camp expenses of the son.
Herd v. Herd, App. Div. (Landau, J.A.D.) (7 pp.) Judge’s findings and conclusions as to defendant’s need for changed circumstances Lepis relief should be affirmed, however, his decision denying deduction from child support of social security benefits paid to the child is reversed; discussing the extensive recent revisions to Child Support Guidelines Appendix IX-A through H, the court finds that the social security payments are not, as stated in the opinion, the result of plaintiff’s entitlement to SSI, but arise by reason of her entitlement to SSI, but arise by reason of her entitlement to non-means tested Social Security Disability payments, and, as such, deduction is required from the basic support computation. [Approved for publication Feb. 6, 1998]
Tash, et ux. v. Tash, App. Div.
(Collester, J.A.D.) (11 pp.) The grandparents had custody of the children and
were receiving Social Security death benefits from the children's deceased
parent. The panel holds that the death benefit is to be subtracted from the
estimated cost of raising the children calculated pursuant to the Child Support
Guidelines, and the percentage of the support obligation attributable to the
grandparents and the father, based upon their respective incomes, is then
applied to ascertain the amount of the father's child support obligation.
[Decision dated and approved for publication Jul. 8, 2002.]
Deacon, Jr. v. Deacon, App. Div. (per curiam) (9 pp.) In addressing a variety of issues between the parties, the court affirms most of the judge’s decisions, but finds that, inter alia, (1) the judge erred in setting off debt owing from wife to husband against child support, as the right of such support belongs to the child and cannot be waived by the custodial parent; and (2) the judge erred in ordering summer visitation with the father effectively changing the custody arrangement ordered at the time of the divorce and in violation of the property settlement agreement.
Blazek v. Blazek, App. Div. (per curiam) (13 pp.) (1) The motion judge did not err in setting defendants support obligations based upon his current income level, even though defendant was working three jobs and over 99 hours per week (which he alleged he could not continue to do indefinitely) since overtime and income from multiple jobs are specifically listed as appropriate income sources in the guidelines, and, should defendant’s situation change, he can always make a Lepis application. (2) Since defendant is productively employed, apparently now healthy and drug-free for over three years, there was no basis for the judge to require that the accountant he had set aside for the oldest son’s college education be transferred to plaintiff and that plaintiff be made trustees thereof. (3) Because the judge failed to make the required findings of fact and conclusions of law with regard to his remaining findings regarding the children’s college expenses, the matter is remanded.
LaRusso v. LaRusso, App. Div. (per curiam) (9 pp.) Although husband’s allegations regarding the reduction in his income may have provided prima facie proof of changed circumstances, the judge erred in simply reducing his support obligations without affording the wife an opportunity for discovery or a hearing, especially in light of the fact that the husband was self-employed and previously been found to have understated his income. Order requiring wife to pay one-half of the income tax liability for a certain year is also reversed as unsupported by the parties’ agreement.
Baber, etc. v. Baber, App. Div. (per curiam) Judge mistakenly considered plaintiff’s application for defendant’s contribution to child’s “activities fees” as something that he could consider outside of the support guidelines, since the fees-for band, bowling, track and other extracurricular activities are considered in establishing the guidelines, and judge should have considered the application under the standards for plaintiff seeking an increase in child support.
Dannnberg v. Estate, App. Div. (per curiam) (8 pp.) Family part judge properly dismissed plaintiff’s complaint on the ground that it was barred by a six-year NY statute of limitations which ran for child support from the date of a child’s emancipation.
Connell, etc. v. Connell, Jr., App. Div. (Fall, J.S.C., t/a) (10 pp.) The trial judge properly found that an inheritance received by a parent is a proper consideration on computing child support, but the matter must be remanded because of irregularities in the calculation. [Approved for publication July 1, 1998.]
Rucker v. Rucker, App. Div. (per curiam) (22 pp.) On the facts of this case, the panel finds, inter alia, that the court did not err in barring plaintiff's proffered expert witness due to the untimely production of the expert's report, refusing to permit plaintiff to obtain new counsel as trial was about to begin, or in determining that the present offset method should be used in distributing the pension. However, the panel is struck by the trial judge's failure to consider defendant's very substantial inheritance as a factor in awarding child support as well as in equitably distributing the martial assets. While the inheritance was properly excluded from the marital estate subject to equitable distribution, it is clear that defendant's overall financial picture, including the inheritance, must be taken into account in determining child support and fairly distributing all of the marital assets. Plaintiff should not be forced to make a "changed circumstances" application once defendant receives his inheritance where much of the relevant information is available at present.
Leavengood v. Leavengood, App. Div. (per curiam) (5 pp.) Under Full Faith and Credit Child Support Orders Act, Florida retained exclusive jurisdiction to modify child support order because defendant remained a resident of Florida; merely registering the out-of-state order in NJ does not enable the courts of this state to modify the Florida order.
Chappell-Seijas v. Seijas, App. Div. (per curiam) (4 pp.) Where Florida resident defendant, against whom default had been entered in the N.J. divorce, appeared in N.J. courts on at least five occasions to deal with support and visitation issues, he waived any possible objection to personal jurisdiction. However, the court remands for a plenary hearing as to defendant’s ability to pay child support and for possible retroactive adjustment to when he first contested jurisdiction, and later appealed the denial of his modification request.
Wohlers v. Wohlers, App. Div. (4 pp.) Trial court should hold plenary hearing where a material issue is in dispute – in this case whether there was an oral agreement between the pro se parties to reduce the amount of child support.
Sheren v. Moseley, App. Div. (per curiam) (18 pp.) (1) There was
no legal basis for the judge’s order – directing plaintiff to pay defendant’s
counsel fees, for defendant’s having to respond to plaintiff’s unsubstantiated
claims of unfitness against defendant’s wife – since the judge made no record
concerning his review of the wife’s medical records or his reasons for his
determination that the wife was fit and some of the fees awarded were from
hearings for which such an award was out of time. (2) The panel reverses the judge’s allocation
of income tax exemption for one of the children, and remands for findings and conclusions.
(3) Motion seeking credit for disability benefits is not tantamount to a
request for modification, since there is no material change in circumstances,
but only a change in the source of the payment.
(4) Defendant was entitled to a credit against the arrearages accrued
during the period of his disability, but not against his future child support
obligations. [Full case opinion, related to 20-2-0437 below.]
Sheren v. Moseley, App. Div. (Eichen, J.A.D.) (8 pp.) (1)
Defendant’s motion for a credit against his child support obligations for the
retroactive lump sum social security disability benefits paid to his dependant
children does not implicate the child support guidelines, because the motion
does not seek “modification” or altering of the amount of child support
obligation, but only the source of payment.
(2) Defendant was entitled to a credit only against the arrearages
accrued during the period of his disability, but not against his future child
support obligations. (3) Defendant is
not entitled to a retroactive credit for that [art of the lump sum social
security disability benefit paid to his dependant children which exceeds the
amount attributable to his period of disability. [Approved for publication June
23, 1999.] [Abbreviated case opinion, related to 20-2-0436 above.]
CHILD SUPPORT –
JURISDICTION – U.I.F.S.A.
Peace v. Peace, Chancery Div. (Todd, J.S.C.) (12 pp.) Addressing the type of inquiries which may be necessary in resolving questions as to jurisdiction under the recently-enacted Uniform Interstate Family Support Act, the court specifically finds that divorce proceedings initiated in Nevada did not divest the N.J. court of authority to review and modify support orders properly entered here previously; inter alia, the court finds that: (1) N.J. and Nevada both have continuing, exclusive jurisdiction; (2) the wife did not either expressly or impliedly consent to Nevada’s assuming exclusive jurisdiction and depriving N.J. of same by agreeing to the divorce in Nevada; and (3) N.J. is the state with the controlling order on the issue. [Decided May 13, 1999; Approved for publication Sept. 24, 1999.]
Country of Luxembourg, etc. v. Canderas, Chancery Div. (Brock, J.S.C.) (9 pp.) The plaintiff asks the court to enforce a judgment for child support entered against the defendant by the Court of Conciliation of Esch-sur-Alzette in the Grand Duchy of Luxembourg. The court determines that the issuing tribunal did not have personal jurisdiction over the defendant, and therefore the registration of the judgment for enforcement of child support under the Uniform Interstate Family Support Act is vacated and the request to otherwise enforce the judgment is dismissed. [Decision dated Dec. 29, 2000; Approved for publication Feb. 28, 2001.]
CHILD SUPPORT – EMANCIPATION
DeVoe v. DeVoe, App. Div. (per curiam) (5 pp.) The court reverses order which continued father’s obligation to pay child support and medical insurance for his 26-year old, learning disabled, adult daughter until she graduates from college, and remands for further exploration of (1) whether a change of major had occurred, triggering an unemancipation, and (2) the daughter’s plans for completion of her course requirements.
Dame, etc. v. Dame, App. Div. (per curiam) (8 pp.) The judge erred in denying the defendant’s motion which sought to clarify the dates of emancipation of his children, which relief he is entitled to as acknowledged by plaintiff; however, the judge did not err in denying defendant a credit against arrearages for those periods of time in which the children had lived with him.
Del Gavio v. Del Gavio, App. Div. (per curiam) (5 pp.) (1) The judge correctly denied plaintiff an increase in child support in the absence of her making a formal motion requesting same; her cross-motion in response to defendant's emancipation motion only sought to compel defendant to produce an update CIS, which he did. Busy family court trial judges cannot be expected to intuit litigants' positions based solely on the parties' CIS's. (2) The judge also correctly emancipated the parties' son prospectively as of his relatively certain college graduation anticipated seventeen days after the order was entered.
Goldberg v. Goldberg, App. Div. (per curiam) (2 pp.) The judge erred in denying defendant credit for child support payments made with respect to his emancipated son subsequent to the date of emancipation. The judge's decision was based upon an incorrect understanding of the existing state of the law dealing with retroactive modification of support. The statutory preclusion of retroactive termination of child support does not apply where the child is emancipated.
CHILD SUPPORT – INTERSTATE JURISDTICITON
Teare v. Bromley, Chancery Div. (Lihotz, J.T.C., t/a) (12 pp.) Where mother and child remain residents of N.J., where child support order was originally entered, but the father moved to Maryland, where enforcement and modification proceedings were held, the court determines that N.J. is the state which issued the "controlling order" pursuant to N.J.S.A. 2A:4-30.74, and that the fact that the last modification order was issued in Maryland is not of consequence. Further, the mother did not waive N.J.'s jurisdiction by seeking URESA enforcement in Maryland. Therefore, the Maryland order closing the child support account due to the daughter's reaching the age of 18 is not binding on the N.J. court; so long as the daughter is unemancipated (attending college in this case), an order for her support is necessary. [Decision dated Mar. 10, 2000; Approved for publication Jun. 20, 2000.]
CHILD SUPPORT – STEP PARENTS
Cumberland Cy. Bd. of Social Svcs. v. W.J.P., et al., App. Div. (Rodriguez, A.A., J.A.D.) (10 pp.) Once a natural parent has been identified, has been ordered to pay child support, and establishes a relationship with a minor, in loco parentis support cannot be compelled from a stepfather. [Approved for publication Jul. 14, 2000.]
CHILD SUPPORT – GRANDPARENTS
A.N., etc. v. S.M., Sr., etc., App. Div. (Stern, P.J.A.D.) (19 pp. -- including concurring opinion by Kestin, J.A.D.) Plaintiff, mother of a fourteen-year old daughter who had a child with the fifteen-year old son of the defendant, sues, seeking contribution to the child's support by the defendant. The panel agrees with the trial court that, generally, a grandparent has no legal obligation to support a grandchild, and in the absence of a statute defendant cannot be compelled to support the offspring of his unemancipated child. However, the court finds that the defendant may have an obligation of support under the unique facts of this case, where he decided that his son should not get a job, which could generate earnings to help support the baby, but, instead, should focus on his school work so that his marginal grades could improve. Remand is required for further proceedings, since the amount of support/imputed income available for the baby flowed from defendant's own, independent responsibilities and decision-making for his son. [Approved for publication Aug. 1, 2000.]
CHILD SUPPORT – INHERITANCE – RETROACTIVITY
Connell v. Connell, App. Div. (per curiam) (5 pp.) The trial judge properly adjudicated the extent to which to impute income to a party for child support calculation purposes based on that party's receipt of an inheritance; however, the modification should not have been retroactive to a time before the motion was filed.
CHILD SUPPORT MODIFICATION
Weibgen, etc. v. Weibgen, App. Div. (per curiam) (5 pp.) The Family Part judge accurately determined the parties' support and educational expense obligations for their two children. Although, as defendant contends, the original PSA did not provide for the support obligation ordered, the changes in the parties' respective incomes were enormous; a modification was not only justified, but probably mandated. Further, the judge's treatment of the employer/United Nations' payments exclusively to be earmarked for educational purposes was mandated by defendant's express representations to the UN that he would so use the funds; defendant was estopped from arguing to the contrary before the Family Part. Lastly, in computing plaintiff's daughter's pro rata educational expense contribution, the court did -- despite defendant's contention to the contrary -- include the Rutgers' tuition cost figures.
CHILD SUPPORT – SPCIAL SECURITY – Q.D.R.O.’S
Burke v. Burke, App. Div. (per curiam) (11 pp.) Defendant, who owed child support arrearages of over $37,000, moved to vacate the court's order directing that the arrears be drawn from his annuity plan, his retirement account, and his Social Security account. His objection was not to the concept, but to the timing, as he had filed another motion which he believed would caused the court to vacate the prior divorce judgment, mooting the arrears. The judge below properly rejected this argument, largely due to the amount of arrears, and because of the uncertainty of the disposition of any future motion. On appeal, the panel reverses that portion of the lower court's order which directed that support arrears be drawn from defendant's Social Security account, noting that the right of a child support obligor to any future benefits is not transferable or assignable. Since defendant is not a current recipient of Social Security benefits, and will not be eligible until he reaches the age of permissible retirement under the Act, his account is not yet subject to garnishment. The panel affirms the balance of the order authorizing entry of a QDRO for assignment to plaintiff of vested retirement funds due to defendant under his annuity and retirement plans; however, it notes that court orders cannot re-write a pension or annuity plan, or impose on the plan administrator that which is not permissible under the existing plan. Therefore, prior to the execution of the QDRO's, the plaintiff must provide the trial court with proof that the plan administrators have approved the orders of distribution.
CHILD SUPPORT – EDUCATION EXPENSES
Fayad v. Fayad, App. Div. (per curiam) (4 pp.) In this case the plaintiff-mother had custody of the parties' two daughters, and paid for their college expenses, and the defendant-father had custody of the two sons, and paid for their expenses. After the youngest child -- one of the daughters -- completed her college education, a motion was filed to resolve any credit plaintiff might be due. The parties agreed to submit the issue to an accountant in 1995. The panel affirms the judge's determination accepting the accountants' figures and splitting the difference between what each party paid, resulting in a credit to plaintiff of $1,892. If plaintiff had problems with the 1995 report, she should have immediately protested. The accountant and his records are now unavailable. Plaintiff has not established that she is entitled to any further credit.
CHILD SUPPORT & CUSTODY
Bandler v. Tabachnick, App. Div. (per curiam) (6 pp.) The court finds no reason to interfere in the Family Part judge's order awarding: (1) joint legal custody of the parties' daughter, with primary, physical residential custody to defendant/mother and liberal visitation to the plaintiff/father; and (2) $500 per month child support to be paid by plaintiff. Inter alia, the evidence supported the judge's conclusion that plaintiff was a well-educated, articulate adult with substantial business experience; the imputation of income to him was appropriate.
Duggan v. Geller, App. Div. (per curiam) (4 pp.) The court correctly awarded custody to the plaintiff; ordered defendant to pay child support of $881 per week; entered judgment for child support arrears against defendant; and ordered defendant to pay plaintiff's counsel fees and reimburse her for certain health insurance, medical bills and child care expenses.
CHILD SUPPORT – VISITATION
Burewall v. Bergman, App. Div. (per curiam) (11 pp.) Husband was diagnosed with bi-polar disorder, became entitled to Social Security disability benefits, and moved for modification of child support. The court notes that the parties' child was not receiving any Social Security payments at the time the support order was entered, but is now. Accordingly, remand is required for reconsideration of the amount of child support to be set. Further, remand is required for further review of that portion of the order denying abatement for extended visitation expense incurred by the husband.
CHILD SUPPORT – COUNSEL FEES
Hasselberger v. Hasselberger, App. Div. (per curiam) (3 pp.) The Family Part judge granted plaintiff's request for an increase in child support and denied defendant's motion for reconsideration. The appellate panel then affirmed the Family Part decision. Defendant later moved to vacate the child support order under R. 4:50-1; but the motion judge denied this request, correctly finding that the earlier appellate affirmance barred defendant's attempt to secure collateral relief. However, the panel cannot agree with the judge's award of legal fees and costs to plaintiff, since there were no essential findings made. Simply because plaintiff prevailed does not necessarily mean she should be granted counsel fees; and this aspect of the matter is remanded for further findings.
CHILD SUPPORT – LEVIES
Spuler v. Dept. of Human Services, App. Div. (Axelrad, J.T.C.) (7pp.) This appeal of a levy on appellant’s bank account by the Dept. of Human Services, Division of Family Development, Office of Child Support & Paternity Programs – FIDM Unit, for child support arrearages is transferred to the Family Part judge who previously issued an order regarding weekly payments toward the arrearage, for a hearing on notice to the payee and obligor. The court expresses concerns regarding the FIDM enforcement procedure and suggests that the Family Practice Committee consider the appropriate forum for these appeals. [Approved for publication April 5, 2001.]
Spuler v. Dept. of
Human Svcs., App. Div. (Axelrad, J.T.C.) (3 pp.) Plaintiff appealed a levy
on his bank account by respondent for child support arrears, contending that
another Family Part order effectively voided the levy. The panel previously
remanded to the Family Part judge for further consideration of the arrears
issue, continuing the levy pending further order. The respondent appealed,
seeking reconsideration, but the panel denied same, reiterating its prior
decision. There is no undue hardship to respondent as the res remains
undisturbed pending the hearing before the judge who is most familiar with the
issues in the case. In fact, the payee will receive any levied funds due on
account of child support arrears in a shorter period of time than if the panel
had permitted the appeal to proceed. [Approved for publication May 21, 2001.]
CHILD SUPPORT – IMPUTATION OF INCOME
Gulya v. Gulya, App. Div. (per curiam) (6 pp.) Under the circumstances of this case, the judge erred in imputing income to defendant on plaintiff's motion seeking an increase in child support. Although defendant was a certified public accountant, he was not deliberately underemployed to shirk his responsibilities to his children, but rather because he wanted to, and did, spend more time with his children under the parties' joint parenting arrangement.
CHILD SUPPORT – COLLEGE EXPENSES
Foust v. Glaser, App. Div. (Alley, J.A.D.) (7 pp.) The appellate panel reverses a child support award under which plaintiff was required to pay $41.00 per week toward college tuition for her son, since defendant never established the applicable factors governing college expenses set forth in Newburgh. This, in turn, makes it impossible to properly assess plaintiff's requests for modification of child support based on alleged "changed circumstances" under Lepis, since that decision necessarily entails knowing the starting point from which the change can be measured. Moreover, it is implicit in a number of the Newburgh factors that an adult child desirous of pursuing higher education is not necessarily immunized from the ill fortunes of a parent whose lifestyle involuntarily has come to preclude an ability to meaningfully contributed financial support. [Approved for publication May 8, 2001.]
Green v. Green, App. Div. (per curiam) (10 pp.) The motion judge correctly considered the applicable factors and used his discretion in allocating 70 percent of the daughter's college expenses to the father. He considered the parties' financial resources and ability to pay; and also considered the father's stated intention to be financially supportive of his daughter's pursuit of a higher education and his encouragement that she apply to Rutgers. The judge did mistakenly order, however, that the father pay 100 percent of the daughter's per month personal allowance; this should have been subject to the 70 percent allocation as well.
Sharin, etc. v. Sharin, App. Div. (per curiam) (13 pp.) The trial judge correctly computed the parties' responsibilities for their children's college expenses, agreeing with defendant that, after the total cost was determined, that total cost should then be reduced by the amount held by plaintiff in custodial accounts she had set up for the children with funds received from her new father-in-law, to produce a net education expense to which the 55/45 percent ratio should be applied. The judge erred, however, in determining that support payments to be made by plaintiff for the parties' son (who resided with defendant) should terminate when the son began to attend college, rather than continue until emancipation.
Reynolds v. Reynolds, App. Div. (per curiam) (4 pp.) The Family Part judge justifiably ordered the plaintiff-father to pay college contributions for the benefit of his unemancipated, almost 23-year-old daughter. Although the daughter was arguably in the third year of what plaintiff asserted was a two-year program, the judge considered the principles of Newburgh v. Arrigo and found that the daughter was nevertheless a full-time student, which obligated plaintiff to continue child support payments and contribute to her education. Inter alia, the daughter's academic progress had been delayed because she was required to take remedial courses before embarking on her degree program.
CHILD SUPPORT – INDIGENTS
Scalchi v. Scalchi, App. Div. (Axelrad, J.T.C., t/a) (5 pp.) An indigent defendant in a civil support enforcement proceeding is not constitutionally entitled to counsel, even though the defendant faces the possibility of incarceration. [Approved for publication Feb. 7, 2002.]
MEDIATORS/GUARDIANS AD LITEM – CHILD SUPPORT
Isaacson v. Isaacson, App. Div. (Carchman, J.A.D.) (39 pp.) (1) The roles of a court-appointed mediator and guardian ad litem are so inherently incompatible that one individual cannot serve in this dual capacity in the same ongoing litigation. (2) The second issue concerns the modification of child support where a parent has received a substantial increase in income, and can be classified as a "high income earner" whose level of income exceeds the scope of the child support guidelines, and who does not dispute the ability to pay any reasonable amount of child support. The primary guideline for consideration, and the centerpiece of the analysis, should be the reasonable needs of the children, which must be considered in the context of the standard of living of the parties. Other economic dependent factors are of less significance. The court must also consider the age and health of the children, as well as other assets, income and debts of the children. [Approved for publication Mar. 8, 2002.]
CHILD SUPPORT- EQUITABLE DISTRIBUTION
Cardarelli, etc. v. Cardarelli, App. Div. (per curiam) (4 pp.) The trial court's denial of plaintiff's motion seeking reversal of the award of an increase in her child support obligation without a plenary hearing is fully sustainable on the facts of this case. Further, the panel rejects her claim that the changed circumstances requiring her to pay the increase renders the property settlement agreement inequitable. The language of the PSA itself belies plaintiff's argument that she waived a claim to defendant's retirement benefits and alimony "in exchange for" the minimum child support obligation.
Cooper v. Wakefield-Cooper, App. Div. (per curiam) (3 pp.) The court affirms that portion of the post-judgment order which compelled plaintiff to reimburse defendant for expenses incurred by her in paying off a car loan, after plaintiff failed to fulfill his obligations in that regard as set forth in the parties' divorce judgment. However, as to the judge's setting of plaintiff's child support obligation, the panel remands for recalculation, as the judge below did not set forth any findings or explanation as to why he set the amount as he did.
Ellery v. Ellery, App. Div. (per curiam) (6 pp.) (1) Although plaintiff should have served an updated CIS and produced tax returns, the judge did not abuse his discretion in deciding the child support issue without them, as he eventually obtained sufficient financial information by way of the documents he had before him to make the determination. Inter alia, plaintiff was a wage earner whose income is presumptively reflected in her W-2's; defendant has not suggested that she has other, unreported sources of income. (2) Based upon the conflicting certifications, the judge aptly found that defendant had not proved by clear and convincing evidence that his wife had agreed to modify the divorce judgment to accept a quitclaim deed from him for the parties' real estate, thus vesting her with the entire equity and relieving defendant of his mortgage and maintenance obligations.
CHILD SUPPORT – INCARCERATION
Bassi v. Bassi, App. Div. (per curiam) (7 pp.) Contrary to R. 1:7-4, the judge failed to make findings with respect to defendant's ability to pay or to give sufficient reasons for his rulings, and he also failed to consider the several published decisions that address the effect of incarceration upon the accrual of child support arrears. Thus, the panel has no alternative but to vacate the order for arrears and remand for further proceedings.
Rutkowski v. Rutkowski, App. Div. (per curiam) (5 pp.) The court reverses a post-judgment order holding plaintiff responsible for forty percent of the private school tuition of her youngest daughter. The PSA specifically provided that the children would attend public school and that, if a parent wished to send a child to private school, that parent would pay the full 100% tuition therefore. Although the parties had apparently informally agreed to split the cost of the middle child's private school tuition, this did not translate to a blanket modification of the PSA such that plaintiff was obligated to pay for the youngest child's tuition at a private school, to which she objected.
Steege v. Steege, App. Div. (per curiam) (25 pp.) Following the entry of a child support order in Germany, the German Institute for Youth, Human Services and Family Law submitted an application to Trenton requesting registration and enforcement of the foreign order under the Uniform Interstate Family Support Act. Notice of Registration of the German orders was filed with the Superior Court and served on defendant, who filed a motion requesting denial of registration and enforcement. The judge denied the defendant's motion, effectively enforcing the orders; the appellate panel affirms. Although the judge made references to defendant's credibility, an improper consideration in determining whether there are disputed facts requiring a hearing, such error was harmless. Analogizing the motion practice engaged in here as one for summary judgment, the panel determines that the proofs presented in favor of enforcement of the Notice and those presented by defendant in opposition, even "when viewed in the light most favorable to [defendant], are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of [plaintiff]."