Court Modifies Child Support And Custody Based on Father's Mental Instability

In the recent Appellate Division case, Cowie v. Cowie, the Plaintiff, in a post-judgment matrimonial matter, appealed from a 2013 court order denying her Motion to reconsider and modify the Defendant's child support obligation retroactively after his custody was diminished due to mental illness. The Appellate Court reversed the decision of the Family Court and remanded the case back to that court for reconsideration. The parties in this case were married in 1999 and the marriage bore two (2) children, a son born in 2001 and another son born in 2003. In 2011, the parties obtained a divorce and entered into a property settlement agreement (PSA) on the same date. The PSA specified that the parties were to share joint legal and residential custody of their children and were to share equal parenting time. Child support was calculated using the NJ Child Support Guidelines based upon the shared parenting worksheet. Subsequently, the Defendant began to suffer from mental health problems and in 2012 the Plaintiff sought temporary sole legal and residential custody of their children as well as a suspension of the Defendant's parenting time. Shortly thereafter, the Family Court granted the Plaintiff's request for temporary sole legal and residential custody of the parties' children and established supervised visitation with the Defendant without over nights. In 2013, the Plaintiff submitted a Motion for a modification of the Defendant's child support obligation because the custody arrangement had been drastically modified. The judge denied her request because the arrangement was deemed to be "temporary." The Plaintiff appealed from this decision. The Appellate Division found that the Plaintiff's application to modify the Defendant's child support was governed by well-settled legal principles. Specifically, a party seeking to modify a child support obligation has the burden of presenting a prima facie case of change circumstances. Lepis v. Lepis, 83 N.J.139, 157-59 (1980); Innes v. Innes, 117 N.J. 496, 504 (1990); N.J.S.A. 2A:34-23. The Appellate Division held that in this case there has been a changed circumstance in the parties' parenting time and that the change in custody was due to the Defendant's incapacity and lack of ability to provide adequate care for his children. Although the modification to the original custody arrangement was deemed to be "temporary," there was no contemplation in the record as to the duration of the Defendant's incapacity. Although courts can reject requests for modification based upon temporary changed circumstances, there is no bright line rule to measure changed circumstances and therefore any determination is left to the discretion of the court. In this case, there has been a "reasonable" time period of the changed circumstance and the children should not be denied appropriate support to meet their needs. Therefore, the Appellate Division reversed the decision of the lower court and remanded the case back to the court for an Order consistent with its decision. 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, 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.

Does Retirement End Alimony?

In Cusick v. Cusick, the Defendant, Janet Cusick, appealed from a 2013 Family Court order that terminated her right to receive alimony from the Plaintiff, William Cusick based upon his claim that he was forced into retirement. The Order also ended the Plaintiff's obligation to reimburse the Defendant for insurance and medical expenses related to the parties' children. The Appellate Court vacated these parts of the Family Court Order and remanded the case back to the Family Court for a full explanation of the judge's decision and for an application of certain factors to determine if retirement should end his alimony obligation. The parties in this case were married in 1985. From their marriage, two children were born, twins, born in 1990. The divorce Complaint was filed in 2007 and the parties engaged a retired judge to act as a financial arbiter who issued a decision in 2008 awarding the Defendant $300 a week in alimony. At that time the Defendant was 44 years old and the Plaintiff was 63 years old. The arbiter acknowledged that the Plaintiff's "bona fide retirement . . . [would] be a substantial change in circumstances that would warrant modification, if not termination of his alimony obligation." This decision was incorporated into the parties' Final Judgment of Divorce in 2008. In 2013, the Plaintiff filed a Motion with the court to terminate his alimony obligation, certifying that he was forced into retirement and was unable to secure other employment through headhunters or by directly applying for jobs. In his Motion, he stated that his only "guaranteed" income would be his Social Security entitlement of $2,034.30 per month. The Defendant opposed the Motion and sought a Court Order to require the Plaintiff to continue paying his obligation and for arrears including medical insurance and medical treatment expenses. Following oral argument, the Family Court judge denied the Defendant's request and granted the Plaintiff's request to terminate his alimony obligation. The Defendant appealed. According to the Appellate Division: "In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999). A supporting spouse's income is just one of the factor's that should be considered when determining his or her ability to pay support. There are other factors to be considered such as "[r]eal property, capital assets, investment portfolio, and capacity to earn by 'diligent attention to . . . business." Innes v. Innes, 117 N.J. 496, 503 (1990). With regard to retirement age and the termination of alimony, numerous factors must be considered when a court determines whether a party's retirement including "age, health of the [retiring] party, the motives in retiring, the timing of the retirement, ability to pay maintenance even after retirement, and the ability of the other spouse to provide for himself or herself." Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992). The Appellate Court judges held that upon a review of the record, the Family Court judge did not adequately consider all of these factors, or at least, did not articulate such a consideration in reaching the decision that the termination of alimony was warranted. Therefore, the case was remanded back to the Family Court for such a determination. If you anticipate that you may want to petition the court for a modification of your alimony award 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 divorce, alimony, child support, custody, parenting time, equitable distribution, 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.