Child Support Based On Imputed Income Raises Suspicions of Appellate Panel

A post-judgment order decreasing child support was entered in the Superior Court of New Jersey, Chancery Division, Essex County, without a plenary hearing to dissatisfaction of both parties in Tuman v. Tuman. The order imputed income to the defendant, Michael Tuman, decreasing his child support payment to the plaintiff and requiring the defendant to pay plaintiff, Monica Tuman, a portion of what were found to be extraordinary child-related expenses. Monica Tuman appealed and Michael Tuman cross-appealed resulting in a remand of the matter for a plenary hearing on the disputed issues in the case. At the time of their divorce, the parties entered into a Property Settlement Agreement (PSA) wherein both waived alimony and equitable distribution but the defendant, then reporting $40,000 in income from his small business, was required to pay $550 per week in child support, a substantial deviation from the Child Support Guidelines figure, to the plaintiff as well as 75% of the children’s unreimbursed medical expenses. Later, the plaintiff sought additional payment from Michael Tuman for Hebrew school, synagogue dues, day camp and other similar expenses. The matter required a plenary hearing to determine the scope of extracurricular activities contemplated in the child support payment established. The court held that the defendant was liable for payment of 1/3 of the expenses based on an income of $130,000 at that time. The court specifically avoided a “changed circumstances” analysis because neither party was actually seeking a modification in child support, only a contribution for additional expenses. Later, in the matter at hand, the plaintiff sought contribution from the defendant for their daughter’s activities, including driving lessons, car payments and college preparation costs, as well as an increase in child support due to a decrease in the defendant’s visitation and the defendant sought to reduce child support to a level within the Child Support Guidelines based on the failure of his business and a current income of $25,000 per year. hild Support Based On In its decision to remand the matter for a plenary hearing, the N.J. Appellate Division found that the judge’s questioning of the pro se plaintiff at length during an evidentiary hearing did not provide her adequate opportunity to prepare. The judge decreased child support to $404 per week but offered no logical reasoning as to why for the Appellate Division to opine on although the imputation of income is considered an “extremely fact-sensitive endeavor”. Caplan v. Caplan, 364 N.J. Super. 68, 88 (App. Div. 2003), aff’d, 182 N.J. 250 (2005). The appellate panel also found that it was inappropriate to determine certain extracurricular expenses were over and above the Child Support Guidelines without a plenary hearing. Decisions of the parties or the court in divorce matters have long-lasting implications for the parties and their children. If you anticipate that it may be beneficial to you to seek a post-judgment modification of a Court Order regarding a 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, 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.

Court Imputes Income For Child Support After Father's Voluntary Career Change

In Provost v. Provost, the Defendant appealed from a 2014 Court Order that imputed his income and modified his child support obligation. The Appellate Division remanded the case back to the Family Court to further develop evidence on the record with regard to the Defendant's career changes. The parties in this case were divorced in 2001. Three (3) children were born to them during their marriage. The Plaintiff has residential custody of the children based upon the parties' divorce judgment which incorporated a marital settlement agreement (MSA). The agreement directed that the Defendant would pay child support for his children until they were emancipated which was defined in the agreement as: "the completion of the child's formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school . . . as long as the child is diligently pursuing formal education . . . and obtaining passing grades." The Defendant lost his job in 2009 as a mechanic and attempted to open up his own body shop which earned him much less income. In 2011, the Defendant petitioned the court to modify his support obligation. The Family Court determined, at that time, that the Defendant was earning much less income after he was fired from his job in 2009, but the judge found that he had failed to present evidence of "competent proof of a diminished earning capacity as a mechanic or a good faith attempt at finding another mechanic's position following his termination . . . . " Therefore, the judge imputed his income to be $68,016 which was the income that was reflected in his 2008 tax return as the best indicator of his earning capacity. On appeal, the Defendant argued that the judge made a mistake by imputing his income because he was involuntarily unemployed, he sought employment, and found an appropriate job and therefore he did not change careers as the judge had held. The Appellate Court found that in order to obtain a change in circumstance based upon current earnings a person who has selected a new, less lucrative career must establish that the benefits he or she derives from the career change substantially outweigh the disadvantages to the supported spouse. Without that showing, a judge should deny the Motion for a change in circumstance, in effect imputing prior earnings unless the obligor establishes, in the alternative, that his capacity to earn is diminished, in which case the judge should impute earnings consistent with the obligor's capacity to earn in light of the obligor's background and experience. Storey v. Storey, 373 N.J. Super. 464, 468-69 (App. Div. 2004). The court noted that it was inconsequential and not outcome-determinative whether the Defendant was previously a salaried employee and was then a proprietor for the purpose of determining whether a career change had occurred. What mattered was whether "he or she is working at capacity in employment consistent with [his or her] skills and experience." Storey, supra, 373 N.J. Super. at 472; Lynn v. Lynn, 165 N.J. Super. 328, 340-42 (App. Div. 1979). The court held that the record was devoid of the Defendant's prior work experience and therefore it was impossible to discern whether or not he was working at capacity based upon his skills and experience. Therefore, the Appellate Court remanded the case back to the Family Court to make such determinations. If you believe that a post-judgment modification to your child support obligation may be beneficial to you 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, emancipation, child custody, 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 if an attorney.

Child Support And College Expenses Calculated Based on Imputation of Income To Mother

In Haymaker v. Haymaker, the Plaintiff appealed from a post-judgment Court Order that required her to contribute to her daughter's college expenses and set a child support obligation and amount of arrears. The Appellate Court reversed and remanded the decision of the Family Court. The Plaintiff and Defendant were married and two (2) children were born to them. The parties were divorced in 1996. The parties' second child, C.H. was attending Syracuse University since August 2012. From the parties' divorce until 2011, C.H. lived primarily with the Plaintiff. In 2011, the Defendant submitted an application to the court for a change in custody which was granted and an order issued allowing C.H. to live in the primary custody of the Defendant. The Motion was initiated based upon a "four-year financial plan" which was established between the Defendant and C.H. to free the Defendant from his child support obligation and to permit his contribution to C.H.'s college expenses. The change in custody negatively impacted C.H.'s relationship with the Plaintiff. In 2012, the Defendant filed another Motion which sought a Court Order to determine his proportionate share of his daughter's college contribution for the support needs that were not covered by her attendance at college. Subsequent to this, the court issued an Order directing that the Plaintiff pay $125 per week in child support starting in July of 2012. The Plaintiff then filed a Motion for reconsideration which was denied. The Plaintiff appealed the decision and a subsequent decision affixing her child support that was heard during the pendency of the appeal. According to the Appellate Court, the Family Court has "substantial discretion" in deciding issues of contribution to college expenses. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Pascale v. Pascale, 140 N.J. 583, 594-95 (1995). An award will not be disturbed unless is it manifestly unreasonable or arbitrary. In Newburgh v. Arrigo, 88 N.J. 529 (1982), the New Jersey Supreme Court provided a framework for evaluating parental contribution toward a child's post-secondary education. A Family Court judge has an obligation under Newburgh and N.J.S.A. 2A:34-23(a) to consider all of the factors contained in that decision when making a contribution award. Further, it is well established that a child over the age of 18 who is enrolled in a full-time educational program requires continued support. Gac v. Gac, 186 N.J. 535, 542 (2006). In this case, the Appellate Court did not take issue with the Family Court judge's analysis of the Newburgh factors in reaching his decision, rather, the court disagreed with the judge's factual findings relative to his consideration of a student loan and other unreimbursed costs in the calculus of his determination. The court also found that the Family judge's imputation of income to the Plaintiff was incorrect. Therefore, the case was reversed and remanded back to the Family Court for a re-calculation of these figures. If you believe that a post-judgment modification to your child support or college expense contribution obligation may be beneficial to you 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, divorce, child custody, 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 if an attorney.

Post-Judgment Modifications Require Due Diligence By Judges In NJ

Motions for post-judgment modification require a judge to make findings of fact similar to those made in the underlying cause of action. When submitting motions for post-judgment modification, the substance and amount of proof of a litigant's position makes the difference in whether a motion will be considered by the court and also what the court's finding will be. In a recent case, Olt v. Olt, a defendant was able to prove changed circumstances as is required for the court to consider his motion for modification of child support. However, the defendant was dissatisfied with the result obtained when the judge granted his motion. Defendant worked within the home health care industry and could not find similar employment. The judge made no findings of fact related to the defendant's documentation regarding other employment the defendant may have attempted to obtain and imputed income based on what the judge seemed to believe was defendant's voluntary unemployment. Additionally, the judge considered work related child care costs to the plaintiff in making the decision regarding the child support amount. The cost of $9,000 was utilized by the court for plaintiff's work related child care cost amount in the calculations but no findings of fact were made by the judge as to the reason for the $9,000 figure. Much as the litigants are required to submit adequate proof, the judge is required to make adequate findings of fact. In this case, where the reasoning behind the decision of the judge as to certain facts was not sufficiently established by the record, the NJ Appellate Division granted the Defendant's appeal and remanded the decision to the NJ Superior Court for the judge to reconsider the findings. If you are contemplating a motion for post-judgment modification or defending against a motion for modification, you should seek experienced legal counsel to make sure you obtain the relief you are entitled to. For more information on divorce, dissolution, child support, alimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.