Equitable Distribution Award Survives Challenge

In DeLong v. DeLong, the Plaintiff appealed from a final divorce judgment entered in 2014 awarding alimony, equitable distribution, and counsel fees. The Appellate Division affirmed the decision of the Family Court. The parties in this case were married for thirty-three (33) years. They owned a home together. In 1996, they sold the home when the Plaintiff's mother conveyed her house to them for one (1) dollar, making them joint tenants with a right of survivorship. The Plaintiff's mother received $500 per month which was characterized by the Plaintiff as rent. In 2008, the parties separated and the Plaintiff conveyed the house back to his mother for one (1) dollar. In 2009, the Plaintiff filed a Complaint for divorce which was voluntarily dismissed when the parties attempted to reconcile. In 2013, the Plaintiff once again filed for divorce and the Defendant filed an Answer and a Counterclaim for alimony and equitable distribution. In 2014, the court conducted a trial and heard testimony from the Plaintiff and Defendant about their marital history, work history, and assets acquired during their marriage. The judge decided that the Defendant was entitled to permanent alimony in the amount of $275 a week, $17,688 in equitable distribution representing the return of proceeds from the sale of their home in 1996, 50% of the marital portion of the Plaintiff's retirement funds, and ordered the Plaintiff to pay the Defendant's counsel fees. The Plaintiff appealed challenging the court's award of permanent alimony, equitable distribution, and attorney's fees. The Appellate Court affirmed the decision of the lower court for all the reasons contained in the Family Court's judgment, but added commentary regarding the Plaintiff's challenge to the equitable distribution award. According to the Appellate Division, property subject to equitable distribution includes property that was obtained during the marriage due to efforts by either spouse. Pascale v. Pascale, 140 N.J. 583, 609, 660 A.2d 485 (1995). "Although the trial court is permitted to recognize that the acquisition of certain property may be traced more directly to one partner than the other, the court is not compelled to distribute property to accommodate that origin." Id. at 638. The Appellate Court noted that in this case, the Family Court judge appropriately weighed the financial contributions of both parties as well as the benefits received by each, including improvements to the martial home. If you believe that a post-judgment modification to the equitable distribution of your property 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, equitable distribution, alimony, 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

Child Support Modification Denied

In Markey v. Melazzo, the Defendant appealed from a 2013 Family Court Order that denied his Motion to terminate his child support obligation and force a recalculation of his arrearage. The Appellate Division affirmed the ruling of the Family Court. In 1995, the Plaintiff and Defendant had a son together but never married. In 2005, a Court Order directed the Defendant to pay $129 a week in child support. In 2012, the Defendant was injured at work and has since claimed that he is unable to work because he is disabled. Later that year, a hearing officer denied the Defendant's Motion for modification of support, without prejudice, because the Defendant failed to provide proof of his income or the validity of his disability. In 2013, the Defendant filed the application which was the subject of this appeal, wherein he sought the termination of his child support and the elimination of his arrears. The Defendant claimed that the Plaintiff has not permitted him to visit with the child and has changed the child's last name without his consent. In 2013, the Family Court denied the Defendant's Motion because the Defendant failed to provide a valid basis for relief. The Defendant appealed. According to the Appellate Division, child support is necessary to ensure that parents provide for the basic needs of their children. Pascale v. Pascale, 140 N.J. 583, 590, 660 A.2d 485 (1995). A party who seeks modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting such an adjustment. Lepis v. Lepis, 83 N.J. 139, 157, 416 A.2d 45 (1980). The decision must be made in accordance with the N.J. Child Support Guidelines when applicable. Caplan v. Caplan, 182 N.J. 250, 266, 864 A.2d 1108 (2005); Terry v. Terry, 270 N.J. Super. 105, 121, 636 A.2d 579 (App. Div. 1994). In this case, the Defendant sought the termination of his child support obligation and the elimination of his arrears dating back to 2002 when the child's name was changed, arguing that the name change was a de facto termination of his parental rights, yet the Defendant cites no authority of his position. According to the Appellate Court, the Family Court correctly determined that the Defendant's parental rights were never terminated and thus found no basis for vacating the Defendant's arrears. With respect to the Defendant's claim of disability, he did not submit any medical information. Therefore, the Appellate Division affirmed the decision of the Family Court. 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.

Alimony Arrearage Modification Denied By Court

In Herman v. Herman, the Defendant argued that because he was not provided with an accounting of the Plaintiff's received alimony payments and how same were used to reduce the marital debt, his alimony payments should have been reduced and that the judge failed to order the Plaintiff to provide such an accounting. The parties were married in 1992 and the Plaintiff gave birth to a son in 1995. The parties divorced in 1999 pursuant to a final divorce judgment which incorporated a property settlement agreement (PSA). The agreement required that the Defendant pay permanent alimony of $527.90 a week to the Plaintiff with the amount decreasing thereafter upon the occasion of certain events, eventually becoming $268.00 a week. The PSA also directed that the Defendant would be fully responsible for the post-secondary educational expenses of the parties' son. In addition, a separate article of the PSA specified that the Plaintiff would pay off existing credit card debts, which amounted to $36,100.00 and that $169.00 a week of the alimony that the Plaintiff received was "intended to be paid by [plaintiff] toward [defendant's] credit card liabilities." When the accounts were paid in full, the Defendant's alimony obligations were to be reduced by $169.00 a week. The agreement also permitted either party to pay off the debt with their "own funds," and receive either a deduction or credit of $169.00 per week toward the alimony amount. After their divorce, the parties engaged in Motion practice over disputes that inevitably arose from the agreement. In 2005, the Family Court issued an Order setting the Defendant's alimony arrears and ordering that he continue to pay $268.00 a week in alimony. By 2007, the Plaintiff's attorney calculated the Defendant's total arrears to be $57,325.00. In 2008, after more Motion practice, the Defendant's alimony, child support, and counsel fees were memorialized in a judgment in the amount of $76,606.00. In 2012, the Defendant filed a Motion seeking a downward modification of his child support and the termination of his alimony due to the Plaintiff's remarriage and an adjustment of his support obligations retroactively based upon his overpayment toward marital debts. The judge terminated the Defendant's alimony obligation based upon the Plaintiff's remarriage but denied his request for a retroactive adjustment. In 2012, the Defendant's total arrears had risen to $111,735.86. In 2013, the Defendant submitted yet another Motion for a retroactive reduction in his alimony in the amount of $169.00 a week dating back to 2004. The judge issued an Order denying the Motion. In 2013, the judge granted the Plaintiff's request to compel the Defendant t pay for their son's college expenses. In 2014, the Defendant again moved for an Order compelling the Plaintiff to account for her payments of all martial debut under the provisions of the PSA and for a reduction in his support arrears. The Judge denied the Defendant's request for an accounting and denied his request for a reduction in his arrears, but granted the Plaintiff's request for Defendant to pay college expenses. The Defendant appealed. The Appellate Division affirmed the decision of the Family Court. According to the Appellate Division none of the Defendant's arguments had sufficient merit to warrant a discussion pursuant to N.J. Court Rule 2:1-3(e)(1)(E). The court found that the Defendant sought an adjustment of his alimony arrears in 2012, which was denied. He never appealed that decision he simply submitted another Motion seeking the same relief in 2013 and 2014. In addition, the Order that was under review enforced the Defendant's obligations to pay college expenses which was ordered by the Family Court in 2013, from which the Defendant failed to appeal. When the Defendant continued to submit Motions for other relief, the Plaintiff cross-moved to enforce the 2013 Order. The Defendant then raised belated challenges to that Order and the Court has the right to refuse to consider his request. Gac v. Gac, 186 N.J. 535, 546-47, 897 A.2d 1018 (2006). Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, 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.

Party To Small Business Divorce Seeks Post-Judgment Modification

In Fiorenza v. Fiorenza, the Defendant appealed from the denial of a post-judgment Motion to modify his alimony obligation following a divorce including a small business. The Family Court judge initially ruled that alimony is not modifiable based upon anti-Lepis language in a negotiated Consent Order which set an amount below which the Defendant's alimony obligation could not be reduced. The parties in this case were married in 1986 and divorced in 2010. Three (3) children were born of the marriage. Only one child still remained at home at the time of the proceedings. During the marriage, the Defendant owned an MRI facility in addition to holding an interest in an accounting practice. The Defendant sold his interest in the MRI facility during the divorce because the business was failing. The marital settlement agreement (MSA) which was incorporated into the judgment of divorce directed that "the husband is self-employed and has average earnings of $250,000 per year" and the Plaintiff can reasonably earn "$25,000 per year." The parties agreed that in 2011 the Defendant would pay to the Plaintiff permanent alimony of $100,000 per year in monthly installments of $8,333. Within a few months the Defendant stopped paying support based upon his business suffering some financial hardships. The Plaintiff then petitioned the court to enforce the parties' agreement, resulting in Orders reducing the Defendant's six months' arrears and sending the parties to mediation. Mediation proved to be unsuccessful and the Defendant subsequently filed a Motion to reduce his support and the Plaintiff submitted a Cross-Motion to enforce litigant's rights. These Motions were resolved by the Consent Order that was at issue in the appeal. The exact provision at issue stated that "No matter defendant's annual gross income, at no time shall monthly support be lower than $5,000, except after the emancipation of [the parties' youngest child] when the child support component may be reduced . . . ." The Defendant then made $5,000 monthly payments to the Plaintiff for one year until he unilaterally reduced his payment to $2,000 and then the following month he paid nothing. The Plaintiff immediately moved to enforce the Consent Order to reinstate the support to $8,333, the amount negotiated in the MSA. The Defendant cross moved to reduce his alimony in accordance with Lepis v. Lepis, 83 N.J. 139 (1980) or Morris v. Morris, 263 N.J. Super 237 (App. Div. 1993). After hearing oral argument, the Family Court judge enforced the Consent Order holding the critical clause to operate as an anti-Lepis provision in accordance with the Morris decision. The judge noted that the Defendant did not dispute that both parties bargained for the agreement and each party got the expected benefit and burden of the contract. Although enforcing the Consent Order the judge ordered a plenary hearing to determine his ability to pay both alimony and arrears. After the hearing, the judge ordered the Defendant to pay $2,500 in alimony and child support with the difference between that sum and the required $8,333 under the agreement to accrue. Then the court ordered a nominal arrears payment of $100 per month. The Appellate Division affirmed the decision of the Family Court finding that the trial court was correct in holding that the parties had anticipated the decline in the Defendant's income when they negotiated the Consent Order and agreed that notwithstanding any such decline, his alimony obligation to the Plaintiff would never drop below $5,000 except upon the child's emancipation. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). No explicit reference to Lepis was required. Savarese v. Corcoran, 311 N.J. Super. 240, 243 (Ch. Div. 1997). Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, 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.

Emancipation And Alimony Termination Application Results in Child Support Modification

In Jackson v. Jackson, the Plaintiff appealed from a 2013 post-judgment matrimonial Order regarding the emancipation of the parties' daughter and the termination of alimony payments to the Defendant. The Family Court judge denied the emancipation request after finding that the Defendant's documentation showed the child was enrolled as a full-time college student and recalculated the child support obligation. N.J.S.A. 9:17B-3; Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982); Gac v. Gac, 186 N.J. 535, 543, 897 A.2d 1018 (2006); Moehring v. Maute, 268 N.J. Super. 447, 480-81, 633 A.2d 1055 (Ch. Div. 1993). The judge also denied the Plaintiff's request to terminate alimony. On appeal, the Plaintiff challenged the income that was used to compute his child support obligation. Upon review, the Appellate Division discovered that the documentation that was relied upon by the Family Court judge to fix the Plaintiff's child support obligations revealed a gross weekly income of $1,219, which is the same amount that the Plaintiff reported on his case information statement submitted to the court. The Plaintiff's 2012 W-2 showed a gross annual income of $63,280 which is $1,217 a week. Therefore, the Appellate Court did not find any error on the N.J. Child Support Guidelines worksheet that was used to calculate the support obligation. The calculation did neglect to include the alimony paid by Plaintiff of $125 a week. According to the Appellate Court, the calculation should have deducted the alimony payment from the Plaintiff's income and included it within the Defendant's income. The child support calculation also failed to include the allocation of payments made for the child's health insurance. Therefore, the child support obligation of $183 a week was wrong and was vacated and recalculated. The Appellate Court affirmed the Family Court's Order using the Plaintiff's weekly income of $1,217 and reversed the Order that directed that the child support obligation was $183 a week and remanded the case back to the Family Court to recalculate the support accounting for alimony and the cost of health insurance. If you anticipate 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, emancipation, 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.

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.

Post-Judgment Relief Repeatedly Denied

In Walsh v. Walsh, a post-judgment modification case out of Morris County, the Defendant appealed from three (3) prior Court Orders that directed him to (1) liquidate his assets to pay a money judgment and finding that he failed to fully disclose financial information; (2) denied his relief to pay alimony and other fees; (3) granting the Plaintiff's Motion for enforcement of prior Orders. The parties in this case were married in 1976 and formally divorced in 2003. Their final divorce judgment has been the subject of multiple Motions and appeals. In 2008, the Defendant appealed an Order that modified his alimony obligation and denied his request to recuse the Family Court judge. The Appellate Division reversed and remanded the alimony Order but denied the recusal request. In 2011, the Defendant submitted an application for a reconsideration of the previous Order because he disagreed with the retroactive date that the alimony modification was set to. The court denied all of the relief sought. In 2013, the Defendant filed another Motion for relief from the prior three (3) Orders and the court denied the Defendant's Motion. In 2012, the Plaintiff filed a Motion in aid of litigant's rights to enforce outstanding judgments against the Defendant. In 2013, the court directed the Defendant to liquidate some of his assets to satisfy the money judgments against him. The Defendant filed a Motion for reconsideration which was denied. A subsequent Motion to reconsider the reconsideration was also denied. The Defendant appealed and argued that the court abused its discretion by denying him relief from all of his previous Motions under N.J. Court Rule 4:50-1(f) and N.J. Court Rule 1:7-4(a). The Appellate Division affirmed all of the prior Family Court decisions holding that the Defendant was barred from relief under res judicata. The doctrine of res judicata prevents the repeated litigation of an issue that has been fully and fairly litigated provided that there is 1) a final judgment by a court or competent jurisdiction, 2) identity of issues, 3) identity of parties and 4) identity of the cause of action. Selective Ins. v. McAllister, 327 N.J. Super. 168, 172-73 (App. Div), certif. denied, 164 N.J. 188 (2000). In this case, the Defendant clearly sought to re-litigate issues from previous Court Orders which were affirmed or dismissed on appeal. The repetitiveness of the Defendant's Motions were underscored by his continued reassertion of issues and allegations after the court had ruled on them. The court cannot permit frivolous matters which are fueled by personal revenge to deplete judicial resources. Kozak v. Kozak, 280 N.J. Super. 272, 278 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997). Therefore, the Appellate court affirmed the decisions of Family Court. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, child support, parenting time, 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.

Alimony Suspended For 9 Months Based Upon Cohabitation

In Fringo v. Fringo, the Plaintiff appealed from a Family Court post-judgment Order issued in 2013 that suspended her entitlement to alimony for nine (9) months because of the Plaintiff's cohabitation with her significant other. In her appeal the Plaintiff argued that the Family Court erred because the Defendant failed to prove a prima facie case of cohabitation and even if he had rebutted the presumption. The Appellate Division affirmed the decision of the lower court. The parties were married in 1993 and divorced in 2011 pursuant to a final judgment of divorce and an incorporated marital settlement agreement (MSA). The MSA stated that the "...parties agree that cohabitation by wife shall constitute a substantial change in circumstance in accordance with NJ law." In 2013, the Defendant filed a Motion seeking the modification or termination of his alimony obligation because the Plaintiff was cohabitating with another person. The Defendant submitted with his Certification the Certification of a private investigator who prepared a report detailing that the Plaintiff's boyfriend began to live in her apartment in December of 2012. After hearing oral argument in 2013, a Family Court judge granted the Defendant's Motion for a modification of alimony based upon the Plaintiff's cohabitation relying on Ozolins v. Ozolins, 308 N.J. Super. 243 (App Div. 1998) and Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013), and based upon the Plaintiff and her boyfriend's admission that he lived with her for nine (9) months in 2012. Therefore, the court terminated the Defendant's alimony for nine (9) months and credited the Defendant's overpayment against eighteen (18) of future alimony payments. Subsequently, an appeal was filed. According to the Appellate Court, alimony awards are not set in stone and can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese v. Weis, 430 N.J. Super. at 569. Further, an alimony award can be modified based upon a changed circumstance which rests with the discretion of the judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Cohabitation constitutes a change in circumstances. Gayet v. Gayet, 92 N.J. 149, 155 (1983). The Appellate Court's review of the record displayed that the Plaintiff and her boyfriend admitted in their prior Certifications to the court that they lived together and failed to rebut that presumption therefore the Defendant was able to establish a prima facie case of changed circumstances for the time period that the Plaintiff's boyfriend was living with her, which was nine (9) months in 2012. As a result, the Appellate Court affirmed the decision of the lower court. The laws governing alimony and cohabitation have recently been changed. It is very important that you seek out the advice of an experienced family law attorney to protect your rights an entitlements if you are considering a post-judgment modification of your alimony obligation based upon your ex-spouse's cohabitation with another person or for any other reason. For more information about alimony, divorce, post-judgment modification, 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.

Cohabitation Criteria For Alimony Termination

In Wachtell v. Wachtell, a Morris County case, the Family Court terminated alimony based upon a finding of cohabitation. The Appellate Court vacated the alimony termination order and remanded the case back to the Family Court for a plenary hearing to focus on the disputed facts with regard to the alleged cohabitation. The legal threshold to prove cohabitation for the purposes of terminating alimony has been established through case law. In Konzelman v. Konzelman, 158 N.J. 185 (1999), cohabitation was defined by the existence of a relationship shown "to have stability, permanency, and mutual interdependence." See also Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013). Although, "living together, intertwined finances such as joint bank accounts, shared living expenses and household chores" may support a determination of cohabitation, such examples should not be considered in a vacuum. Konzelman, supra, 158 N.J. at 202. With regard to procedure, a party who pays alimony and who alleges cohabitation must first present prima facie evidence that his or her ex-spouse is in such a relationship that is tantamount to marriage. Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). If this initial threshold is met then the parties may engage in a discovery process. Further, it is customary for factual disputes involving alleged cohabitation to be resolved at a plenary hearing where a Family Court judge can determine the credibility of competing witnesses. Winegarden v. Winegarden, 316 N.J. Super. 52, 56 n.1 (App. Div. 1998). A hearing may be avoided if there are no disputed issues of material fact and the matter is otherwise suited for disposition on the papers. Segal v. Lynch, 417 N.J. Super. 627, 642-43 (App. Div. 2011). In this case, the Appellate Division agreed with the ex-husband that his Motion papers set forth a prima facie case of cohabitation. The Appellate Court disagreed with the findings of the Family Court, terminating alimony based upon cohabitation, because a key factual dispute was raised by the ex-wife regarding the amount of overnights that her paramour spend with her during the week. The Appellate Court reasoned that although not completely dispositive, an important factor in any cohabitation analysis is that people must cohabit to a substantial agree in order for a determination of cohabitation to be made. Therefore, because the parties disagreed over the number of nights that the ex-wife's paramour was spending with her, the Appellate Court vacated the termination of alimony Court Order and remanded the case back to the Family Court for a plenary hearing on the issue. The laws governing the issues involving alimony and cohabitation have recently been changed and it is very important that you seek out the advice of an attorney to protect your rights and entitlements. If you are considering post-judgment modification of your alimony obligation based upon your ex-spouse's cohabitation with another person or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification , emancipation, 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.

Post-Judgment Alimony Modification Remanded To Determine Income

Kaller v. Gogan, is a case out of the NJ Superior Court, Family Part, Morris County regarding Defendant's alimony obligation based upon the exchange of post-judgment modification Motions between the parties. On remand, the Family Court reduced the Defendant's alimony obligation to $164 a week. In previous proceedings, the Family Court reduced the Defendant's alimony obligation from $364 a week to $175 and then upon remand it was determined that the amount should be reduced again to $164 a week with $10 of that going towards an arrears. The net effect of this was to put the parties in equipoise with each party netting $368 per week based upon the Plaintiff's earnings of $12,000 and the Defendant's earnings of $32,000 per year. In the initial appeal the Appellate Court noted that it understood ". . . what the judge was attempting to do, [which was] to award plaintiff sufficient alimony so that each [party] 'will net $368 per week based upon Defendant's earnings of $32,000 per year'." On the second appeal, the Appellate Court was unable to understand from the testimony at the plenary hearing and the documents in the record how the Family Court judge arrived at the Plaintiff's salary of $12,000 per year. On appeal from a Motion for Reconsideration, the Defendant asserted that the court erred in making conclusions regarding the Plaintiff's salary and although the Defendant accepted the court's finding that his gross income was $32,000, he rejected that the Plaintiff's gross income, excluding alimony, was only $12,000. The Defendant believed that the Plaintiff's actual income was $21,112 based upon her reported average gross weekly income of $406 dollars for 52 weeks. According to the Appellate Court, if it could have determined the Plaintiff's earnings for the years in question from the record, it would have exercised original jurisdiction and set the amount of alimony itself in order to have brought the matter to a close. Rule 2:10-5; Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004). Unfortunately, the record simply did not provide the court with enough information to do so. Therefore, the Appellate Court again remanded the case back to the Family Court so that the judge could explain the basis for how he determined the Plaintiff's salary. The Appellate Court ordered that this be done within 45-days. Being that the laws governing the issues involving alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification , 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.

Denial Of Husband's Alimony Modification Reversed

In Galante v. Galante, the Defendant appealed from a court order that denied his Motion for a modification of his alimony obligation. The New Jersey Appellate Court reversed the decision of the Family Court and remanded the case back for reconsideration. The parties executed a marital settlement agreement (MSA) in 2011 upon getting divorced. According to the MSA, with regard to equitable distribution, the Plaintiff was to receive the parties' marital residence, the 401k account from one of the Defendant's businesses, and the parties' 2010 tax refund. The Defendant received the parties' 2009 tax refund, and his 50% interest in three businesses that were acquired during the marriage. Further, the MSA provided for a two-step alimony payment schedule because the Defendant was unable to pay off the mortgage that was securing their former marital home. Before the marital home was sold, the Defendant was to pay all of the house expenses and $400 a week in alimony to the Plaintiff. Once the home was sold, he was to pay $1,500 a week in alimony to the Plaintiff. In 2013, the Defendant filed a Motion with the court to modify his alimony obligation, amongst other things. He claimed that his financial circumstances had dramatically declined which resulted in a significant change in circumstances, which justified the modification of the MSA. Specifically, he noted that his businesses had permanently lost their client base after the economic collapse of 2008 and his annual earnings dropped from $400,000 a year to $130,000 constituting a significant change in circumstances. The Family Court denied his application citing that he had failed to establish a prima facie showing of changed circumstances because he failed to provide the court with documentation that proved his claims. The Defendant filed a Motion for reconsideration in which he included his tax returns. The court denied this Motion as well holding that the Defendant was simply trying to cure his deficient documentation with information that was readily available to him when he filed his first Motion. The Defendant appealed. On Appeal the Defendant claimed that he established a prima facie case for a change in circumstances according to Lepis v. Lepis, 83 N.J. 139 (1980). According to the Appellate Court, alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. To win on such an application, a showing of "changed circumstances" is required. Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). The Appellate Court found that in this case the Defendant did not make broad generalizations and bare assertions that his businesses were suffering, but rather, he provided specific details about his businesses failures and his efforts to rectify his situation. Thus, at the very least, the Defendant presented a prima facie case of changed circumstances and if the Plaintiff materially disputed the Defendant's claims, a plenary hearing should have been held to consider those facts, which was not done. Therefore, the decision of the Family Court was reversed. If you believe that a post-judgment modification to your alimony 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, alimony, equitable distribution, 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 if an attorney.

Remand Of Post-Judgment Child Custody Issue For Due Process

S.W. v. W.B., is a New Jersey Appellate Division case that was decided in 2015 in which the Defendant appealed a prior Court Order that denied his Motion for Reconsideration regarding post-judgment divorce and child custody Orders that pertained to reimbursement obligations for extra-curricular activity expenses for his children. In reviewing a Motion for Reconsideration, a court must determine if the trial court abused its discretion in rendering the decision that is disputed. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002). "Reconsideration should be used only for those cases . . . where either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Id. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A Motion for Reconsideration should only be granted under very narrow circumstances. In this case, the Appellate Division agreed with the Defendant that the Family Court mistakenly viewed part of the Defendant's Motion as a Motion for Reconsideration, when it should have treated the Motion as one to vacate the prior Court Order on due process grounds and the court should have considered the merits of his argument before denying his Motion. The Plaintiff and Defendant were married in 1998 and two (2) daughters were born during the marriage. In 2009, the parties decided to divorce and their final divorce judgment incorporated a property settlement agreement (PSA). Apparently, the parties agreed to equal shared parenting time. There has been multiple post divorce disputes with regard to the sharing of the children's extra-curricular activity expenses. The agreement provided that the Defendant was to pay 48% and the Plaintiff 52% of the costs associated with the activities. Further, the agreement particularly states that "The parties shall discuss the cost of any activity and only agreed upon activities shall be so divided. Neither party shall enroll the children into an activity without discussing same and obtaining agreement from the other party." Since 2009, the litigants have come to court with disputes regarding this provision on multiple occasions. With regard to the latest exchange of Motions between the parties, the Defendant filed his Motion for Reconsideration 20 days after his receipt of the Court Order he was objecting to because he claimed that he was not properly served with previous pleadings. . . ." The Defendant filed an appeal in 2013 and referenced a number of prior Court Orders that he was dissatisfied with. For the reasons previously mentioned the Appellate Division remanded the case back to the Family Court to make determination on the issues of the case. If you believe a post-judgment modification of your child custody arrangement or obligations may be beneficial, 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 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 of an attorney.

Post-Judgment Motion For College Tuition Is Denied

White v. White, is a 2015 post-judgment modification involving a Plaintiff who petitioned the court to compel her ex-husband, the Defendant, to reimburse her and their son for loans that the Plaintiff and the child used to pay for his college education. The Plaintiff appealed the decision of the Family Court which denied her initial Motion, filed in 2012, to compel the Defendant to reimburse her and her son for the aforementioned loans. After being married for six (6) years and having two (2) sons the parties agreed to divorce. The divorce was granted pursuant to a judgment of divorce that granted custody of the children to the Plaintiff, set forth the Defendant's child support obligation, and incorporated the parties' agreement concerning the equitable distribution of their property. The record reflected that the Defendant did not have contact with either of his children from 1998 through the time the initial Motion was filed in 2012. In 2008, the parties' youngest son entered college and graduated in 2011. In 2012, nine (9) months after the parties' child graduated college the Plaintiff filed a Motion seeking retroactive child support effective May 2009 through December 2011 and an Order directing the Defendant to pay for the non-emancipated child's college education as well as a loan that the Plaintiff has used for that purpose. The court denied the relief requested. The Appellate Court found that it was required by Gac v. Gac, 186 N.J. 535, 546 (2006) to consider whether the Defendant had been involved in the college selection process at all. Further, the court noted that the Defendant was disabled and wondered whether or not it was fair to retroactively place the burden on him to inquire as to whether or not his children were entitled to any veteran benefits - as he was a veteran - to assist in the payment of college expenses. Relying on Newburgh v. Arrigo, 88 N.J. 529, 535 (1982), Gac v. Gac, N.J.S.A. 2A:34-23(a) the Appellate Division ruled that waiting until the child graduated from college was fatal to the Plaintiff's application for retroactive contributions to the loan that she took out. Courts "should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether, and if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac v. Gac, surpa, 186 N.J. at 543. Being that it could not be determined exactly when the Defendant first learned that his son was attending college and why the Defendant was estranged from his son (and therefore not involved in the college selection process) the court was not willing to reverse the decision of the lower court. The issue was whether a non-custodial parent can be held liable to a child for the amount of educational benefits that would have been available from a non-parental source had the parent timely notified the child or child's custodial parent. The Plaintiff cited to no authority to support the imposition of such liability and therefore the court was not prepared to impose such. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification , equitable distribution, divorce, alimony, 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.

Court Considers Application To Terminate Permanent Alimony

Pretlow v. Pretlow, involved a party's application for the post-judgment modification of his permanent alimony obligation based upon his retirement. Following a trial conducted in 1998, the parties in this case were divorced pursuant to a judgment that directed that the Plaintiff pay his ex-wife, the Defendant, $100 per week in permanent alimony. Subsequently, the Plaintiff petitioned the Family Court to terminate his alimony obligation based upon changed circumstances because he claimed that he was forced into an early retirement by an illness that significantly increased his out-of-pocket medical expenses. The Family Court, after evaluating the moving papers and after hearing oral argument, denied the Plaintiff request to terminate his alimony obligation because there was a dispute as to whether or not the Plaintiff's retirement, at age 55, was voluntary or involuntary. The Family Court judge noted that the Plaintiff had made a "strong argument . . . that his retirement was involuntary" which included evidence of a decrease in his income and increase in his medical bills, yet the judge recognized that the law required an evidentiary hearing to test the Plaintiff's assertions and to allow the Defendant to respond to the Plaintiff's argument with a discussion of her own circumstances. Interestingly, the judge did not order such a hearing because he felt that doing so was not the correct course of action because it would have cost the parties "two years['] worth of alimony just arguing whether alimony should be continued or not." The Plaintiff appealed from this judgment. According to the Appellate Division, although the Family Court judge may have been correct in his assertion regarding the time and expense that holding the evidentiary hearing would have placed upon the parties, it held that there was no doubt that if the Plaintiff's assertions were true he would be entitled to the relief that he requested either in whole or in part. The Plaintiff should be not be burdened for the rest of his life with what may no longer be an equitable alimony obligation because of the disproportionate financial consequences that would result from proceeding in accordance with Lepis v. Lepis, 83 N.J. 139 (1980) and the cases that followed it. See also Stamberg v. Stamberg, 302 N.J. Super. 35, 42-44 (App. Div. 1997). Therefore, the Appellate Court reversed and remanded the case back to the Family Court to hold an evidentiary hearing on the issue. Further, the Appellate Court added that merely because an evidentiary hearing is required does not necessarily mean that the parties are to be destined to a lengthy or expensive proceeding and that the court could proceed in a brief and expeditious manner to remain sensitive to the financial circumstances of the parties. Although the laws regarding duration of alimony have recently been changed, many people will still be required to pay or receive spousal support for many years. This can be a major financial burden or benefit to you depending upon whether you are the payor or payee of the alimony obligation. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , 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.

Reluctance To Terminate Alimony Appealed

In Bechtold v. Clauss, the Defendant, Robert Clauss, appealed from a 2013 Superior Court of New Jersey, Family Part Order from Union County that reduced his alimony obligation and re-adjusted his child support obligation. The Defendant contends that the court should have terminated his alimony and applied any reduction in his alimony amount retroactively. The parties in this case were married in 1988 and had two (2) children. They sought and obtained a divorce in 2008. After the parties' children were born, the Plaintiff did not work outside of their home. Their final divorce judgment incorporated a property settlement agreement (PSA). The PSA specified that the Plaintiff would continue pursuing a degree to become a registered nurse and that "it [wa]s hoped that the [Plaintiff]'s anticipated vocation as a Registered Nurse would substantially impact [Defendant]'s ongoing alimony obligation to [Plaintiff]." In fact, the Defendant funded, through a dedicated interest bearing trust account, $35,000 toward the Plaintiff's schooling from his share of the marital residence. Further, the PSA stipulated that the alimony obligation shall be subject to modification based upon either party's ability to show "changed circumstances." The Plaintiff became a registered nurse in 2012 and started to work as a school nurse. In July of 2012, the Defendant filed a notice of his intention to file a Motion to modify child support within 45 days pursuant to N.J.S.A. 2A:17-56.23(a). After another five (5) months and unsuccessful mediation attempts, the Defendant filed a Motion to terminate his alimony and reduce his child support based upon changed circumstances now that his wife was employed as a school nurse. After a hearing with regard to the issues, the Family Court judge entered an Order reducing the Defendant's alimony obligation to $350 a week ($18,200 per year) and awarded the Plaintiff with $260 per week in child support. The Defendant appealed from this decision. The Defendant argued that the Family Court judge should have terminated his alimony obligation because he did not make sufficient findings with regard to the parties' marital lifestyle. According to the Appellate Division, "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). The Appellate Court found that the judge wrote a detailed and thorough opinion on the matter in which he found that the Defendant was not a credible witness. The judge found that the Plaintiff's testimony was credible and noted that although she received $35,000 for her education, it cost over $90,000. The judge then analyzed all of the alimony factors found in N.J.S.A. 2A:34-23(b) in rendering his decision to alter the alimony obligation instead of terminating it. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony or child support obligations it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification, 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.

Post-Judgment Custody Modification Denied

In the recent Appellate Division case, C.T. v. M.L., the Defendant, M.L., appealed from a 2013 Family Court Order that denied her post judgment Motion that sought to restore joint custody of the parties' children and other forms of relief. The Appellate Court affirmed the decision of the Family Court. The parties in this case were married in 1999. Three (3) children were born of their marriage in 2000, 2002, and 2004. The parties obtained a legal divorce in 2006. When the parties separated in 2005 the Defendant had residential custody of all three (3) children. In January of 2006, residential custody was transferred to the Plaintiff, C.T., because the Defendant's boyfriend, F.L., inflicted serious injuries to Lila, one of the parties' children. In addition, the Defendant's parenting time with the children was suspended. The Division of Youth and Family Services (DYFS), conducted several risk assessments and following these, the Defendant was allowed limited parenting time with her children conditioned upon the fact that she not have any contact with F.L. In September of that year, the parties executed a property settlement agreement (PSA) that provided that the parties share joint legal custody of the children but that the Plaintiff would have sole residential custody of them. The agreement specified that the Defendant have liberal and reasonable parenting time with the children and included a schedule as part of the provisions. Finally, a provision was entered into the agreement wherein the Defendant was prohibited from having any contact with her former boyfriend, F.L. or his family members, and if such contact was resumed the Defendant would forfeit her future parenting time with the children. Following the divorce the Defendant subsequently married F.L. and when the Plaintiff learned of the marriage he implemented the provision of the PSA that suspended the Defendant's parenting time. The Defendant moved before the court to reinstate her parenting time but in 2007 her Motion was denied and she was only allowed limited telephone contact with the children. Extensive Motion practice on this issue followed and in 2010 a Family Court judge awarded full legal custody to the parties' children to the Plaintiff and suspended the Defendant's right to telephone contact with the children. The judge based his opinion on psychological evaluations of the children that concluded that contact with the Defendant should cease. In 2012, the Defendant filed another Motion seeking the restoration of joint legal custody of her children and the establishment of a supervised parenting time schedule for her to have restored contact with them. The judge denied her request and she appealed from that decision. On appeal, the Defendant argues that the Family Court was mistaken in finding that she did not present a prima facie case of a change in circumstances that would warrant a change in custody. According to the Appellate Court, a party who seeks modification of a judgment or Order regarding custody and visitation "must meet the burden of showing changed circumstances and that the agreement is [no longer] in the best interests of the child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.). The Appellate Division found that the prior rulings on this issue were correct because the Defendant's repeated filing of the same Motion and hoping for a different result did not rise to the level of a changed circumstance and did not solve the underlying problems that were preventing her from having contact with her children. Therefore, the Appellate Division affirmed the decision of the Family Court. If you anticipate that you may want to petition the court for a post-judgment modification of your child custody arrangement 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 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 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.

Court Denies Man's Request To Lower Alimony For Temporary Change in Circumstances

In the recent Appellate Division case, Lax v. Lax, a post-judgment matrimonial matter, the Plaintiff, David Lax, appealed from a 2013 Family Court Order that denied his Motion to reduce his alimony obligation. The Appellate Division affirmed the decision of the lower court. The parties in this case were married in 1986 and obtained a legal divorce in 2008. Their final divorce judgment incorporated a Property Settlement Agreement (PSA) in which the Plaintiff agreed to pay the Defendant permanent alimony in the amount of $7,000 per month. In 2011, the Plaintiff filed an application with the court to modify his spousal support obligation. A series of Cross-Motions followed that resulted in a plenary hearing in which the Plaintiff sought to prove changed circumstances based upon a change in his financial situation and the Defendant's co-habitation with another person. The judge determined that no co-habitation existed but that the Plaintiff had proven a change in circumstances warranting a modification of his obligation. Subsequently, the Plaintiff's alimony obligation was reduced to $2,000 a month. Following this ruling, the Defendant filed a Motion for reconsideration and the Plaintiff once again filed for another downward modification of his obligation. This time the court denied his request for another modification and he appealed. The Appellate Court held that its review of the Family Court's decision is limited stating that "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Further, it stated that "Courts have consistently rejected requests for modification based on circumstances which are only temporary." Lepis v. Lepis, 83 N.J. 139, 145-46 (1980). In this case, the Plaintiff filed his second Motion for another downward modification of his spousal support obligation only three (3) months after the previous order modifying his obligation was issued. The Family Court properly found that there was no evidence in the record to prove that the Plaintiff's financial situation was anything other than temporary. The Appellate Division agreed with the decision of the Family Court and for the aforementioned reasons affirmed the lower court's denial of the Plaintiff's request. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, child support, equitable distribution, 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.

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.

Child Support Modification Sought As Father's Income Decreased And Mother's Increased

In the recent post judgment Appellate Division case, Bigge v. Walker, the Plaintiff appealed from a 2013 Family Court Order that denied his Motion to modify his child support and life insurance obligations. The Appellate Division reversed the decision of the lower court. The parties involved in this case were married in 1987 and subsequently divorced in 1999. One child was born of the marriage in 1991. The parties' divorce judgment directed that the Plaintiff was to pay $105 a week in child support plus an additional $45 a week toward an arrears that had accumulated after they separated. The amount was determined by the parties without using the NJ Child Support Guidelines. In addition, the divorce judgment required that the Plaintiff maintain $100,000 in life insurance to secure his child support obligation. In 2013, the Plaintiff filed a Motion to modify his child support obligation because his work was not steady and he was often unemployed and as a result he fell into arrears. He further asserted that he was suffering from severe health problems and had recently undergone a triple bypass heart surgery which impeded his ability to work. In 2010, he had got a job working in a mail room an earned $26,955 a year as of 2012. In 2013, the Family Court denied the Plaintiff's Motion to modify his child support. The Plaintiff appealed. According to the Appellate Court, child support orders are subject to modification pursuant to N.J.S.A. 2A:34-23 and based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). A Family Court motion judge may modify a child support obligation when the party seeking the alteration satisfies the burden of showing a change in circumstances. Dramatic changes in the income or earning capacity of either party, or in the circumstances of their children due to events such as attending college, may result in a finding of a changed circumstance. Colca v. Anson, 413 N.J. 405, 415-16 (App. Div. 2010). In this case, the Appellate Division found that the Family Court judge mistakenly exercised his discretion when he denied the Plaintiff's Motion to modify his child support as his income had been significantly reduced while the Defendant's income had increased. Therefore, the Appellate Division was satisfied that the Family judge did not make adequate findings with respect to the Plaintiff's child support obligation and life insurance requirement and the decision was reversed and remanded back to the Family Court for further proceedings. 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, divorce, 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.