Child Support COLA Increase Defeated On Appeal

Legal issues that involve disputes regarding child support can be of the most emotional and difficult in all of family law because of the sensitive nature of the issues, Wexler v. Wexler, is a 2015 New Jersey case involving a party's post-judgment application to reduce his child support. The Plaintiff in this case appealed the decision of the Family Court disputing the trial judge's finding that his child support obligation should be increased due to a change in circumstances. The divorced parties in this case have two (2) children who are teenagers and were teenagers at the time this litigation commenced. At the time of their divorce each party had residential custody of one of the children and according to their final divorce judgment the Plaintiff was required to pay the Defendant $52 per week in child support. In 2011, the Defendant filed a Motion requesting residential custody of the child that was not living with her and for an increase in the Plaintiff's child support obligation. After the proceedings, the judge entered an order that, amongst other things, increased the Plaintiff's child support to $266 a week. Three days after the Order was issued, the Probation Division sent both parties a notice that the Plaintiff's weekly child support would be increased to $278 because of a "biennial cost-of-living adjustment (COLA)." Rule 5:6B(a) provides that "all orders and judgments that include child support . . . shall provide that the child support amount will be adjusted every two years to reflect cost of living." A few months later the Defendant filed a Motion to enforce the prior Order to require the Plaintiff to make his payments on time and in the full amount. Soon thereafter Probation requested that the court void their prior COLA increase of the Plaintiff's child support because it had been increased in the previous Order and therefore there was no basis for a COLA increase. Without knowledge of Probation's request, the Plaintiff filed a response to the Defendant's enforcement Motion and requested that the COLA be cancelled. In July 2013, a Family Court judge granted the Defendant's enforcement Motion and directed that the Plaintiff pay a $1,500 lump sum payment toward his arrears. The Plaintiff then filed another Motion requesting that the COLA be voided. The judge denied his request citing that "the Court entered a new child support obligation on July 31, 2013 for $278 based upon a change in circumstances." From this holding, the Plaintiff appealed. The Appellate Division held that it owed substantial deference to the Family Court's decision. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). The court agreed with the Plaintiff that the Family Court judge mistakenly changed his child support obligation to $278 a week and therefore a change in circumstances was not the correct basis to make the increase. Being that there was no basis to raise the amount and because Plaintiff's obligation had recently been increased to $266 a week the Appellate Court reversed and remanded the case back to the Family Court to readjust the obligation. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligations it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification , alimony, divorce 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.

Equitable Distribution Of Home Is Open For Argument After Ambiguous PSA

In the recent Appellate Division case, Paintsil v. Oppong-manu, a post-judgment matrimonial case, the Defendant ex-husband appealed from a 2012 Family Court Order which enforced a property settlement agreement (PSA) with regard to the Plaintiff ex-wife's right to receive $22,672.50 as a share of the equitable distribution of their former marital home because he argued the provisions of their PSA were ambiguous and open to multiple interpretations. The parties in this case were marred in 1991 and obtained a divorce in 2008. They had two (2) children born in 1993 and 1997 respectively. On the date that their judgment of divorce was issued they entered into a PSA which designated the Defendant as the parent of primary residence and upon which the Defendant waived child support in exchange for the Plaintiff's waiver of alimony. Further, a provision of the PSA specifically directed that both parties are entitled to 50% of the equity of the marital residence and the "Husband agrees to [buy out] Wife's portion of the residence" if this was not possible then the house was to be sold and the proceeds to be split evenly. Specifically, the parties agreed that the fair market value of the marital home was $435,000 with a principal mortgage of $339,655 and an equity line of credit of $80,000. Therefore, at the time the equity in the home totaled $15,345 and subsequently the Plaintiff was entitled to $7,672.50. From the $80,000 home equity line of credit the parties used $30,000 on improvements and the Plaintiff received $10,000 which resulted in $40,000 that remained. According to the PSA, the Plaintiff was entitled to 50% less the $10,000 advance that she received and should have received another $15,000 additionally from the home equity line of credit. In total, the Plaintiff then was entitled to $22,672.50 from the marital home. In 2012, the Plaintiff filed a Motion to enforce litigant's rights to force the Defendant to pay her the money she was owed under the PSA. The Defendant argued that he could not refinance the home and the value of the home had dropped significantly since the divorce and that the PSA contemplated such an event allowing for modifications to the payouts. The judge found the Defendant was in violation of litigant's rights and ordered him to pay the Plaintiff $22,672.50 plus interest within thirty (30) days of the Order without holding a plenary hearing to evaluate the language of the PSA. The Defendant appealed. According to the Appellate Court, "[I]t is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties.: Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). If the meaning of a contract such as a PSA is in dispute the court role is to consider "what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the 'expressed general purpose'." Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953). In applying these principals the Appellate Division found that the trial court mistakenly exercised its discretion by finding that the Plaintiff was entitled to the enforcement of the PSA because more than one reasonable interpretation of the provisions was presented to the court, requiring a further plenary hearing that did not occur. Therefore, the court reversed and remanded the case back for further findings. The equitable distribution of assets is 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, post-judgment modification, contested divorce, spousal support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.