NJ Child Support Guidelines Do Not Control For College Students

In Ferrer v. Reynaldo, the New Jersey Appellate Division ruled that the NJ Child Support Guidelines are not always an automatic calculation for college students. The Defendant, Carlos Reynaldo, appealed from part of a Family Court Order issued in 2013 setting his child support obligation at $139 per week arguing that the court mistakenly calculated the amount of his obligation by using the NJ Child Support Guidelines. The Appellate Court agreed with the Defendant and remanded the case back to the Family Court to recalculate his child support amount under N.J.S.A. 2A:34-23(a). In this case, the Defendant and the Plaintiff, Miriam Ferrer, were divorced. While the parties were married the Plaintiff gave birth to two children, Janessa born in 1985 and Gabriella, born in 1992. Janessa was legally emancipated in 2004. Gabriella was 20 years old at the time these proceedings began and was a full-time student at Rutgers University. In 2012, the Defendant filed a Motion with the court to terminate or reduce his child support payments with regard to Gabriella asserting that she was of legal age for emancipation. The Plaintiff opposed this Motion, arguing that Gabriella was not emancipated because she was a full-time college student. The Family Court heard arguments at a hearing held in early 2013 at which Gabriella testified that she was a full-time college student. The court found Gabriella's testimony to be credible and it determined that because she was a full-time student she was not emancipated based on her age. The court also ordered the Defendant to pay 50% of Gabriella's college tuition pursuant to the parties' property settlement agreement. The Defendant argued that his $139 a week child support obligation was "double dipping" because Gabriella lived on the Rutger's campus and thus her education expenses included room and board. The court declined to alter his obligation. The Defendant appealed from the portion of the Order that sets his child support amount. The Appellate Division held that when reviewing decisions granting applications to modify child support it examines whether the trial judge abused his or her discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). The Appellate Court may reverse a trial court's decision if it was "made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002). In general, child support awards are computed using the NJ Child Support Guidelines under Rule 5:6A. Appendix IX-A to Rule 5:6A makes it very clear that the child support schedule provided by the Guidelines shall not be used to determine parental contributions for college or other post-secondary education expenses. However, the NJ Child Support Guidelines "may be applied in the court's discretion to support for students over [eighteen] years of age who commute to college." The Appellate Court previously held that child support calculations for unemancipated college students who live on-campus, or away from the custodial parent's home, should instead be made "in light of all the financial circumstances of the parties and children." Raynor v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999). In this case, the Family Court explicitly used the child support guidelines to calculate the support obligation, which the Appellate Court determined to be incorrect because in using an automatic calculation and not considering other factors the Family Court allowed for the kind of double dipping that the Appellate Division has specifically prohibited. Therefore, the decision of the Family Court was reversed and remanded for consideration under N.J.S.A. 2A:34-23(a). Disputes regarding child support can be of the most important in family law because child support money is critical for the welfare of the children of divorced parents. If you are involved in a child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child support, emancipation, post judgment modification, alimony, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Denial Of Grandparent's Petition For Visitation Reversed

In the recent New Jersey Appellate Division case, C.D.M. v. S.M.P., a grandparent visitation case, the Appellate Division reversed the decision of the Family Court which denied a grandparent's application for visitation because the lower court did not follow the appropriate procedures in denying the petition. In this case, the Plaintiff, C.D.M. is the maternal grandmother of a little girl born in May of 2012 and whom the court identifies as "Nancy." The Plaintiff's daughter died while giving birth to Nancy. The Defendant and Nancy's biological father, S.M.P. initially tried to reach a mutually acceptable visitation arrangement with C.D.M., but in the end he denied her requests to visit Nancy or to allow Nancy to have contact with her half brother, referred to as "Nathan." The Plaintiff has legal and physical custody of Nathan. In September of 2012, the Plaintiff filed a Complaint on behalf of herself and her grandson Nathan (then five years old), asking the court to order visitation with Nancy under N.J.S.A. 9:2-7.1. S.M.P. responded to the Plaintiff's Complaint by filing a counterclaim seeking "sole custody," an accounting of any and all funds collected for Nancy's benefit upon her mother's death, and denying the Plaintiff's request for grandparent visitation. The Family Court judge stated that New Jersey's grandparent/sibling visitation statute "requires a very high showing . . . before a judge . . . who is a stranger to the child . . . can overrule a parental decision," and he was unsure if this case met that standard. The judge then asked the parties, with their attorneys to spend a few minutes to try to work something out. After a period of time, the Plaintiff's attorney reported that the parties were unable to reach a resolution. The judge emphasized that the "law presumes that a father, a mother knows what's best for a child and that . . . [he] shouldn't overrule that decision." The judge then denied Plaintiff's requested relief and dismissed her Complaint as a matter of law. The record reflects that the judge specifically declined to hear from the Defendant's attorney at the return date of the Order to Show Cause, citing that based upon what he had read in the parties' pleadings and certifications, the Plaintiff had not established a sufficient basis to overcome the Defendant's objections. Under Rule 2:5-1(b) the judge supplemented his analysis and findings once the Plaintiff appealed from his decision. According to the Appellate Division, according to R.K. v. D.L., 434 N.J. Super. 113, 137-40 (App. Div. 2014), it addressed the procedural and substantive approach the Family Part must use when dealing with grandparent visitation cases. These approaches are grounded in the concerns embedded in the State's Constitution as were expressed in the New Jersey Supreme Court decision in Moriarty v. Brandt, 177 N.J. 84 (2003) and in the state statute N.J.S.A. 9:2-7.1. The Appellate Court went on to hold that in every case in which visitation is denied, the grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The court found that in this case, the trial court did not properly consider all relevant factors when it dismissed the Plaintiff's Complaint as a matter of law and therefore reversed and remanded the matter back to the trial court for a de novo re-examination of the Plaintiff's Complaint consistent with the procedures and principles set forth in R.K. If you anticipate that you would like to petition the court to obtain grandparent visitation rights it is imperative that you seek out the advice of an experienced attorney who can evaluate your case and advise you on your rights and obligations. For more information about grandparent visitation rights, custody and visitation, parenting time, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Is Marital Home Subject To Equitable Distribution?

In Zamorsky v. Zamorsky, the Plaintiff, Michael Zamorksy, appealed from a 2012 Family Court Final Divorce Judgment because he claimed that the court made a mistake when it included his former marital residence as a marital asset subject to equitable distribution. The Plaintiff and the Defendant, Joyce P. Zamorsky, became engaged in September of 1999. The Plaintiff then signed a contract of sale for a house in November of 1999 which closed in December of that year. He paid a $68,000 deposit on the property with his own personal funds and he alone was named on the contract of sale, the mortgage, and the deed. He and the Defendant were married on December 31, 1999 and lived at this property for the length of their marriage. The marriage, the third marriage for each party, did not bear any children. The Plaintiff filed a Complaint for divorce in 2010 based upon irreconcilable differences. In 2012, during the parties' divorce trial, the Plaintiff argued that the marital residence was a pre-marital asset that was exclusively his property. The Defendant asserted that the martial residence was bought in contemplation of their impending marriage and therefore should be considered to be a marital asset subject to equitable distribution. The Plaintiff testified that he purchased the house prior to the marriage and the parties did not even live in the residence until weeks after their marriage. Further, he claimed that the Defendant did not even see the house until after they were married and his plan all along was to leave the house to his children (from his prior marriages) and never intended to place the Defendant's name on the deed. In addition, the Plaintiff stated that the parties kept their finances separate during the marriage and he, by himself, paid the mortgage, property taxes, and repairs on the home along with the majority of the household bills for the entire marriage. The Defendant's testimony differed remarkably from that of the Plaintiff. She testified that the Plaintiff showed her the house shortly after they became engaged and even asked her opinion on it. She also maintained that she visited the residence on multiple occasions with the Plaintiff before the closing. She claimed that she did not apply for a mortgage or share in the mortgage with the Plaintiff because her credit was bad at the time of the purchase and that the Plaintiff promised to eventually put her name on the deed. In the Final Judgment of Divorce, the Family Court judge ordered that the Plaintiff was to retain his $68,000 down payment and the balance of the value of the property, minus the balance on the mortgage, was to be divided equally by the parties. In her decision, the judge found the Defendant's testimony to be very credible. The judge found that "although the plaintiff may not have wanted to share title with the defendant, he told her that he would and she believed that the residence was purchased to be their joint possession," and concluded that the house was purchased in contemplation of marriage and thus subject to equitable distribution. The Plaintiff appealed from this decision. The Appellate Court affirmed the decision of the lower court based upon the reasoning set forth in Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012) and N.J.S.A. 2A:34-23.1. The Plaintiff purchased the property only eleven (11) days prior to the parties' marriage, the Plaintiff was asked her opinion on the property, and it was accepted by the court that the Plaintiff promised to add the Defendant's name to the deed. The Appellate Court held that it owed deference to the finding of the Family Court that the Plaintiff's testimony lacked credibility. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). Based upon the credible evidence reflecting that the property in question was bought in contemplation of marriage, the Appellate Court affirmed the decision of the lower court. The equitable distribution of assets and debts are of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, contested divorce, uncontested divorce, spousal support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Alimony and Child Support Garnished From Man's Wages Appealed

In the recent Appellate Division case, Reynaldo v. Reynaldo, the Defendant, Jorge Reynaldo appealed from a Family Court Order issued in 2013 that denied his Motion for reimbursement of alimony and child support amounts garnished from his accounts while he was incarcerated because they were excessive. The Appellate Division reversed the decision of the lower court and remanded the case back to the Family Court for reconsideration The parties in this case were married for approximately twenty (20) years and had three (3) children during that time. In 2009, they obtained a divorce, and the Defendant claimed that according to a property settlement agreement (PSA) filed with their divorce he was required to pay child support and permanent alimony to the Plaintiff. In 2011, he moved before the court for a reduction of these obligation amounts and was denied. In 2012, the Defendant filed a Motion in the Family Court seeking to be refunded for money that he argued was withheld improperly in violation of the Consumer Credit Protection Act (CCPA), 15 U.S.C.A. Section 1673(b). He claimed that in February, March, April, and May of 2012, the Sheriff's Office withheld too much money from his wages and that when he brought this to the Sheriff's attention, he was ignored. According to Mr. Reynaldo, he told the Sheriff's Office that his monthly salary represented his gross income and the garnishments that were being taken were excessive. Further, he also asserted that the Sheriff's Office was deducting an additional cost of $10.00 per day from his income for the cost of spending nights in jail and being subject to an electronic tracking device. The Defendant argued that these excessive garnishments left him impoverished and unable to pay his taxes, rent, food, and other necessities. The Family Court denied his Motion citing that under Bergen County Board of Services v. Steinhauer, 294 N.J. Super. 507, 517-18 (Chan. Div. 1996), an individual's support obligation could be suspended as a result of incarceration, but the court should consider the length of the sentence and the extent of other assets the obligor may have and that under this ruling suspension of support obligations would ordinarily not be appropriate when the sentence is less than one year. According to the Appellate Court, the Family Court did not address the main issue that the Defendant raised in his Motion. In fact, the Defendant did not seek a suspension of his child support and alimony obligations on the basis of his incarceration, instead, he sought reimbursement of the amounts of his income that exceeded the amount permitted by the CCPA and New Jersey law, in particular N.J.S.A. 2A:17-56.9. The court held that because the Family Court did not address the principal issue raised in the Defendant's Motion, it vacated the 2013 Order and remanded the case back to the Family Court for reconsideration on the Defendant's main issue. If you anticipate that you may want to petition the court for a modification or alteration of your child support or alimony award or have any questions regarding alimony it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, alimony, post-judgment modification, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Party Seeks Judge's Recusal After Post-Judgment Modifications Denied

The a recent post-judgment modification case, Hoffman v. Hoffman, the Defendant, Bruce Hoffman appealed from a 2013 Family Court Order which denied his Motion to recuse the Family Court judge and also denied his request that the court require the Plaintiff, Frances Hoffman, to provide him with a Case Information Statement (CIS). The Appellate Division affirmed the decision of the Family Court. The parties in the case were married in 1981 and obtained a legal divorce in 2000. The Final Judgment of Divorce incorporated the parties' Property Settlement Agreement (PSA). Following the divorce, the Defendant instituted many post-judgment actions against Plaintiff usually to terminate or modify his child support and alimony obligations. All of the Defendant's Motions were denied. In the case at hand, the Defendant filed a Motion in 2013 requesting the recusal of the Family Court judge and require the Plaintiff to provide him ". . . with her completed CIS with attachments within [three] days." The judge denied the Motion and provided a written statement detailing her reasons for doing so. In her statement, the judge stated that the Defendant sought her recusal because she had previously denied "hearing his request for [reimbursement of] $1,363,800.45." The judge found that this "denial is not a basis for a recusal." Further, she held that her prior involvement in the Defendant's case did not prevent her from producing a fair and unbiased hearing or judgment. Concerning the Defendant's request for the Plaintiff's CIS, the judge held that the Plaintiff submitted her completed CIS to the court and requested that it remain confidential, but did recognize that without access to the document the Defendant may not be able to prove that a modification of his child support or alimony obligation is warranted. In balancing the equities, the judge stated that she "wanted to review the financial information submitted so that [she] could excise irrelevant matters before demanding the parties exchange information," as the Defendant had harassed the Plaintiff with over fifty filings and appeals since 2001. Therefore, the judge denied the Defendant's Motion "at [that] time" to permit her review of the materials. The Defendant appealed. According to the Appellate Court, the disposition of a recusal Motion is "entrusted to the 'sound discretion' of the trial judge whose recusal is sought." Panitch v. Panich, 339 N.J. Super. 63, 66 (App. Div. 2001). Recusal is appropriate "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead . . . the parties to believe so." R. 1:12-1(g). Further, "Bias cannot be inferred from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008). The Appellate Court found no abuse of discretion in the Family Court judge's denial of the Defendant Motion for recusal. Next, the Appellate Court dismissed the Defendant's appeal from the trial court's denial of his request for the Plaintiff's CIS because it is "well settled that a judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and all issues." R. 2:2-3(a)(1). The Family Court judge's decision was interlocutory until she reviewed the financial information. If you are seeking post-judgment modification of your divorce judgment, alimony award, or child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, equitable distribution, alimony, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Alimony Reform Gets Legislature's Final Approval

This month, a comprehensive alimony reform proposed law completed its progression through the New Jersey legislature with unanimous support from the State Assembly. The combined bill, A-845/971/1649 received legislative approval from the State Senate following a 30-2 vote in favor. New Jersey lawmakers, the State Bar Association, and other interested Family Law organizations have debated the status of the laws regarding alimony for many years. Most agree that there has been a lack of legal guidance, other than case law, directing judges with regard to alimony issues resulting in a lack of uniformity in the administration and enforcement of alimony awards. As it stands currently, the proposed law would only affect the small number of divorce cases that do not end with a settlement agreement. At present, the vast majority of divorce cases end with a mutually agreed upon settlement between the parties which controls factors such as amount and duration of alimony. The new law would eliminate permanent alimony in most divorce situations and provide judges and lawyers with a set of factors to use as guidelines in the determination of amount and duration of alimony awards. Any modifications to the current status of the laws regarding alimony would be prospective and not apply to any divorce settlements that have been or are currently being executed. If a civil union or legal marriage persists for more than twenty (20) years an alimony award cannot exceed the duration of the relationship. Under the proposed law, in addition to the statutory factors that have already been established Family Court judges would have to consider the ages of the litigants when they married and when their relationship ended, the necessity for separate residences, the ability of each litigant to maintain a standard of living, the dependency of one party on the other party, the parties' health status, along with other issues. In regard to cases of cohabitation, which has always been a hotly contested legal issue, the proposed law would compel judges to consider, along with other relevant factors, the joint finances of the cohabitating people, the duration of the relationship between the cohabitants, and the division of household chores. In addition, a Family Court judge would not be able to reject a claim of cohabitation on the grounds that the cohabitating couple does not live together on a full-time basis, alone. Further, the law states that alimony award sums may be terminated when the payer spouse attains full retirement age. The law would also bestow greater authority to modify or alter alimony obligations if the payer spouse becomes involuntarily unemployed or sees a large reduction in salary. For instance, if a payer loses his or her job they would be permitted to apply for a modification of their alimony obligation after being unemployed for at least 90 days. If you anticipate that you may want to petition the court for a modification or alteration of your alimony award or have any questions regarding alimony it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification, divorce, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

In Child Relocation Case, Appeal Is Only Possible After An Adjudication

In the recent post-judgment matrimonial case, Russitano v. Russitano, John Russitano appealed from a 2012 Court Order that directed action based upon his ex-wife's Motion to relocate the parties' children to Alabama and recalculate his child support obligation. The Appellate Court could not rule on appeal because the Family Court Order did not issue a final disposition on issues involved with the case. The parties in this case were married in 2000 and three (3) children were born of the marriage. On June 27, 2011, they were divorced pursuant to a Final Judgment of Divorce with their own negotiated Property Settlement Agreement (PSA) incorporated. In 2012, the Defendant, Melissa Russitano, filed a Motion with the court to relocate with the children to Alabama and to modify the parties' PSA to increase John's child support obligation. John filed a cross-motion seeking a recalculation of his child support obligation and to enforce the parenting time provisions contained in the PSA. After hearing oral argument, the Family Court judge issued an order directing that the parties engage mediation to attempt to resolve the relocation issues and the custody and parenting time issues. The judge also ordered that John's child support obligation be re-evaluated based upon his three most recent pay stubs. John appealed from this Order. The Appellate Division affirmed the decision of the lower court holding that, although John disagrees with his ex-wife's request to relocate to Alabama with their children, he failed to challenge the lower court's order referring the parties to mediation or the determination to hold a plenary hearing on the removal of the children if the parties are unable to reach a decision. The Appellate Court concluded that the Family Court judge's order on this issue was not a final disposition of the issue at the time that the appeal was filed because the court had never ruled on Melissa's Motion requesting permission to relocate with the parties' children. As such, a party is required to seek leave to appeal according to Rule 2:5-6(a), and neither party did so. As required under Rule 2:2-3(a)(1), the Appellate Court has jurisdiction to consider appeals from "final judgments of the Superior Court trial divisions." In all other cases, jurisdiction to consider an interlocutory matter is only granted upon leave of the court. Rule. 2:2-4. Therefore, this claim was dismissed. Next, regarding the child support issue, the Family Court is given substantial discretion to determine child support awards and other support obligations based upon the ruling in Foust v. Glaser, 340 N.J. Super., 312, 315 (App. Div. 2001). In this case, the Appellate Division found no reason to disturb the ruling of the Family Court as there was no basis to do so as the lower court's decision to order a recalculation of the obligation was appropriate. Disputes regarding child relocation and child support can be of the most important in family law because of the substantial impact that decisions regarding these issues will have upon the lives of the parties and their children. If you are involved in a child relocation or child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child relocation, child support, post judgment modification, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Cohabitation Ends Alimony In Post-Judgment Modification Matter

In a recent post-judgment modification case, Syslo v. Syslo, the Plaintiff, Ann Marie Syslo, lost her appeal from a 2013 Family Court decision which granted the Defendant, Raymond Syslo's request to terminate his alimony obligation because she cohabitated with another person. The facts of the case are as follows. The Plaintiff and Defendant were married in 1990 and subsequently the couple were divorced in 2004. Three children were born of the marriage, the youngest of which still resides with the Plaintiff. Currently, the Defendant is obligated to pay $210 a week in child support. When the parties' decided to obtain a divorce, the Defendant agreed to pay to the Plaintiff $70 a week in alimony. That obligation was increased to $225 a week in 2007. Around 2010, the Defendant began trying to gather proof that the Plaintiff was co-habitating with another person. To do this, he hired a private investigator and began to film the cohabitant staying at the Plaintiff's residence overnight. He accumulated documentary evidence for about thirty-five days taking place in October of 2010, September of 2011, and March and April of 2012. These videos also revealed that the cohabitant possessed a key to the Plaintiff's residence, which he used to enter the home both when the Plaintiff was in the home and when she was not there. The cohabitant also drove the Plaintiff's car from time to time and transported the Plaintiff's child to different places and had opened joint bank accounts with the Plaintiff. Further, the Defendant was able to obtain evidence that the cohabitant received mail at the Plaintiff's home. As a result of this information and the testimony of the parties' emancipated children as well as that of the alleged cohabitant and Plaintiff, a Family Court judge found that the Defendant was able to establish that there was cohabitation. Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998). According to the judge, the Plaintiff and cohabitant acted like a "relatively permanen[t]" family unit, with the assumption of the duties and obligations "associated with marriage." Pursuant to this finding, the judge terminated the Defendant's alimony obligation effective on the date of the entry of the Order. The Plaintiff appealed this decision and argued that the trial court erred by finding that she had cohabitated within the legal understanding of the word. The Appellate Court affirmed the findings of the Family Court. According to the Appellate Division, it is well established that the cohabitation of a spouse who is receiving alimony constitutes a change in circumstances that may relieve the payor spouse from his or her alimony obligation. Gayet v. Gayet, 92 N.J. 149, 155 (1983). The cohabitation relationship must be more than simply an intimate relationship, it must also include that the parties engage in "duties and privileges that are commonly associated with marriage." Konzelman, 158 N.J. at 202. Some factors for consideration include if the parties share living expenses and household chores, intertwined finances, and recognition of the relationship in the couple's social and family circle. In the current case, the court found that the evidence on the record amply supported the Family Court judge's determination that cohabitation was established. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony award based upon cohabitation or any other relief that was awarded in a final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, divorce, alimony, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.