Child Custody Modified After Parties Failed To Abide By Agreement

In Myers v. Myers, the Defendant appealed from the child custody and child support provisions issued in a 2013 final divorce judgment following a trial. The Appellate Division affirmed the decision of the lower court after a careful review of the issues and the record. The parties in this case participated in a three day divorce trial in 2013. The final divorce judgment incorporated a partial stipulation of settlement which was filed in 2013. This partial settlement resolved many issues between the parties but left the issue of custody of their child and child support unresolved. Prior to the trial, in 2009, the parties executed a Consent Order that addressed the custody of their son. The child resided with each party on alternating weeks and on the weeks that each parent did not have the child they exercised parenting time on Tuesday and Thursday evenings. At trial, the Defendant proposed the same parenting time arrangement as was negotiated in the Consent Order. The Plaintiff sought a different schedule and requested that she be named the parent of primary residence. Her argument was that the prior arrangement never really took effect because after one month the Defendant moved back into the house with her and her son and that she had always been the one to take care of their son. She contended that the Defendant did very little with their son except to take him to practices and games. After the trial, the Court noted that after reviewing the relevant case law, it was guided by N.J.S.A. 9:2-4 in making a custody determination. The judge found the Plaintiff's testimony to be credible and found that the Defendant did not cooperate in the Plaintiff's attempt to negotiate an agreed upon parenting time schedule. The judge determined that from the "defendant's own testimony and his own demeanor" that a shared custody arrangement would not be appropriate. The judge awarded primary residential custody to the Plaintiff. The Defendant was given 104 overnights a year with his son and from this determination the court established that the Defendant's child support obligation would be $143 a week. N.J. Court Rule 5:6A. The Defendant appealed. According to the Appellate Division, regarding custody, the statute requires that the court consider multiple factors in determining the best interests of the child. N.J.S.A. 9:2-4(c). A court is required to place on the record the factors it considers consequential in reaching a custody decision, as the judge in this case had done. Monte v. Monte, 212 N.J. Super. 557, 565, 515 A.2d 1233 (App. Div. 1986). In this case the judge expressed a concern in the lack of cooperation between the parties mostly due to the Defendant's "problematic" behavior. The Appellate Division found that the Family Court judge clearly had the child's best interests in mind when he made the custody decision and subsequently the child support award. Therefore, the Appellate Division affirmed the decision of the lower court. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you feel that it may be beneficial to you to submit an application to the court for a modification of your current child custody or parenting time arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, divorce or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Mother Appeals Downward Modification Of Child Support

In Litvinenko v. Ter-Saakov, the Plaintiff appealed from a Court Order with regard to adjustments that were made to the Defendant's child support obligation, as well as, an award of attorney's fees that was granted in the Defendant's favor. The Plaintiff and Defendant have one (1) child together, a son born in 2008. The Defendant relocated to the Ukraine in 2012, when the parties' son was four (4) years old. Subsequently, a Family Court judge issued an Order granting sole custody of the child to the Plaintiff and requiring the Defendant to pay child support in the amount of $463 a week. A few months later the Defendant returned from the Ukraine to attend a Motion hearing with his attorney at which the Plaintiff represented herself. Halfway through the hearing the Plaintiff requested an adjournment to seek counsel, the judge denied her request during the hearing. The Plaintiff then stated, in the courtroom, that she was going to walk out of courtroom and not participate in the proceeding. The judge warned her that doing so would result in her requested relief being denied. She walked out of the courtroom anyway. The judge proceeded with the hearing and entered an Order granting the parties shared custody of their child. The Defendant was provided with Skype parenting time three (3) times a week and one (1) week overnight vacation per year. Further, the Defendant's child support obligation was reduced to $268 a week and he was awarded $11,805 in counsel fees. The Plaintiff appealed. On appeal the Plaintiff argued that the judge abused her discretion by awarding counsel fees to the Defendant because the Defendant was a successful businessman earning a seven (7) figure salary and she further claimed that the judge erred in reducing the Defendant's child support obligation. According to the Appellate Court, a judge in a matrimonial action may award reasonable attorney's fees and shall "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23; N.J. Court Rule 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J. Super. 58, 78, 919 A.2d 885 (App. Div. 2007), and will be disturbed "only on the 'rarest occasion,' and then only because of [a] clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317, 953 A.2d 1219 (App. Div. 2008). In this case, the judge based the attorney fee award on the Plaintiff's bad faith in leaving the proceeding against the direct order of the judge. The Appellate Court held that the trial judge aptly explained her reasons for the award and the decision was well within her discretion, therefore, the award of attorney fees was affirmed. However, the Appellate Court found that the trial judge's modification of the Defendant's child support obligation was in error because the judge did not attach a copy a NJ Child Support Guidelines Worksheet or explain her reasoning for the downward modification, which is required. Capaccio v. Capaccio, 321 N.J. Super. 46, 54 n.11, 729 A.2d 253 (App. Div. 1999); N.J. Court Rule 5:6A. Therefore, the decision of the lower court was affirmed in part, reversed in part, and remanded back to the Family Court. If you believe that it may be beneficial to you to seek a post-judgment modification of your 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 modification, child support, parenting time, child relocation, 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.

Appeal Of Child Support On Due Process Grounds

In the recent Appellate Division case out of Essex County, Barreto v. Bryant, the Defendant, Juan Bryant, appealed from a 2013 Family Court Order that denied his pro se Motion to modify a prior Court Order setting child support for a child that was conceived by he and the Plaintiff, Evelyn Barreto. In 2012, the Defendant's child support obligation was set by the court at $153 a week with a $5,049 arrears. This Order further specified that the child support was calculated using the NJ Child Support Guidelines and New Jersey Court Rule 5:6A based upon the Defendant's imputed income of $57,750. In late 2012, the Defendant first sought to modify his obligation based upon changed financial circumstances. In 2013, a judge denied this requested because the Defendant failed to provide sufficient proof that he was experiencing a significant and permanent/long term change in circumstances. Soon thereafter, the Defendant filed another Motion for a downward modification of his child support obligation and this time provided his W-2 documents from 2012 which demonstrated that his annual pay was $33,470. At a hearing before a hearing officer held on the matter, the Plaintiff was present and the Defendant did not physically appear. The hearing officer denied the Defendant's Motion and noted that the Defendant only lived one hour away and that the court did not allow telephonic appearance for people who are only one hour away. An Order was issued on April 24, 2014 by a Family Court judge which indicated that the Defendant's Motion had indeed been denied for failing to show a change in circumstances and that the Defendant "lives within [ninety] minutes of the court house and he should appear for court proceedings." The Defendant filed a timely appeal arguing that he was never contacted by phone for the April 2013 hearing and therefore the merits of his Motion were never heard. The Appellate Division held that self-represented litigants are accorded the same procedural due process rights as those who are represented by counsel. Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014). According to the Appellate Court, the Defendant was not offered a modicum of due process in the proceedings held in April of 2013. During prior proceedings the Defendant was specifically advised that he would have an opportunity to present his proofs to the court and he was denied that opportunity. The Appellate Division offered no conclusions as to the merits of the Defendant's Motion for a downward modification of his child support but reversed and remanded the case back to the Family Court to hold proceedings that would allow the Defendant to offer his proofs. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, parenting time, child support, child relocation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.