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.

Father Contests College Tuition Obligations In Post-Judgment Divorce Filing

In the recent Appellate Division case, Gropper v. Gropper, the Defendant, Cy Gropper, appealed from two post-judgment Orders of the Morris County Family Court concerning his obligation to contribute to his son's college expenses based upon his final divorce judgment. The Defendant appealed from two (2) Family Court Orders, one filed on March 20, 2013 that directed him to pay $50 a week directly to the parties' son in child support and 58% of the child's college costs and expenses. The second Order, which was filed on May 21, 2013, denied the Defendant's Motion to reconsider the relief ordered in the previous Court Order. The Defendant claimed that his Motion for reconsideration was not properly considered by the court and that he should not have been ordered to pay his son's private school tuition when "the same education can be obtained a reputable public [state sponsored] schools" for a much lower cost. The Appellate Court ordered a limited remand to review the Defendant's Motion. The parties in this case were divorced in 1995. Their marriage yielded two children and pursuant to the property settlement agreement (PSA) which was incorporated into their final divorce judgment they were to share joint legal custody of their children and were to share their children's college education costs 52% by the Defendant and 48% by the Plaintiff. After the divorce, the Defendant moved to North Carolina. The parties' younger son applied and was accepted to attend an online private college, the University of Advancing Technology (UAT) as well as the University of North Carolina-Charlotte (UNC). Since he had to have spinal surgery, the child did not immediately attend college and subsequently moved to North Carolina. Based upon the child's move and his representation to UNC that his primary residence was the Defendant's address, the Defendant filed a Motion to modify his child support obligation asserting that any child support should be paid directly to the child and that the parties agreed that the child would attend UNC. The Plaintiff filed a Cross-Motion arguing that she agreed that the child support could be sent by Probation directly to the child, but disagreed that an amount adjustment was warranted. Further, she sought a review of each party's college expense contribution amount because the Defendant's income had increased from the time of the divorce. The Plaintiff also asserted that the parties' son had reluctantly agreed to attend UNC and planned on finishing his coursework at UAT because that school offered a major not found at UNC. In a 2013 Court Order, the judge modified the parties' child support obligations. In addition, with regard to the college expenses, pursuant to N.J.S.A. 2A:34-23(a), the judge ordered that the UAT tuition "after all loans, grants, and scholarships have been obtained" shall be paid 58% by the Defendant and 42% by the Plaintiff. The Defendant appealed. The Appellate Division found that the Family Court judge's statement of reasons supporting the Order at issue regarding the parties' respective college tuition obligations was premised on analysis of the child support statute, but did not mention any consideration of the factors outlined in Newburg v. Arrigo, 88 N.J. 529 (1982). Further, the Defendant, in his papers, also accurately indentified the need to consider whether the child is enrolled on a full-time basis. Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971). Therefore, the Appellate Division remanded the case back to the Family Court for an re-evaluation consistent with its opinion. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment regarding issues such as your obligation to pay your child's college expenses 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, 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.

FMLA Could Be Extended to Couples in Same-Sex Marriages Throughout Nation

Gay and lesbian couples who were joined in same-sex marriages are now entitled to the Family and Medical Leave Act (FMLA) in states that recognize marriage equality, but the FMLA could also be extended throughout the nation to include common law spouses even in states that currently do not recognize same-sex marriage as well. The U.S. Department of Labor recently proposed a new rule that would extend the effect and benefits of the FMLA to same-sex couples and common law spouses throughout the country. Employers had until August 11, 2014 to submit their comments and suggestions regarding the new proposed rule change. The FMLA covers employers with fifty (50) or more employees within seventy-five (75) miles of each other. As it is written, the law permits any eligible employee to apply for and take up to twelve (12) weeks of unpaid leave within a 12-month period of time if and when a member of his or her family has a serious health condition. The FMLA designates a family member as a parent or child under the age or 18 or a spouse. Previously, only legally married heterosexual couples qualified as spouses under the law. In 2014, the United States Supreme Court struck down parts of the Defense of Marriage Act (DOMA) which defined "marriage" and "spouse" to be limited to heterosexual partners. This ruling changed the definition of "spouse" with regard to the FMLA to include a legally married same-sex spouse, if that person worked in a state that recognized marriage equality but not in states that did not recognize same-sex marriages. The current proposed rule would expand FMLA to the spouses of gay and lesbian individuals as long as the marriage was legal in the state where it was entered into even if they work in a state where same-sex marriage is not legal. The new rule would also expand the FMLA to common law spouses in all fifty (50) U.S. states, provided that the relationship is recognized in at least one state. If you are a gay or lesbian couple who plan on seeking a legal marriage or filing for a same-sex divorce or would like more information regarding same-sex divorce it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, equitable distribution, alimony, custody and visitation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Release of Escrow Funds To pay Legal Fees

In the recent Appellate Division case, Meyers v. Meyers, the Defendant Andrew Meyers, appealed from a post-judgment Order that denied the release of funds held in escrow to pay his attorney fees and for personal use pursuant to his Final Divorce Judgment. The Appellate Division affirmed. The parties in this case were married in 1968, separated in 2005, and officially divorced in 2009. The parties have three children, of which have been emancipated. At the end of the marriage the husband earned approximately $140,000 a year and the wife $84,000. Their assets included a marital residence, a vacation home, and bank and retirement accounts. In 2007, while the parties' divorce was proceeding, Mr. Meyers withdrew the entire balance of his 401K, totaling $335,000, which resulted in tax liabilities. It was also discovered at that time that the husband had not filed a tax return since 2004. The parties' marital residence was sold before the completion of the divorce so that the proceeds could be used to pay certain debts. In addition, equal shares of $25,000 were distributed to each party to assist in the divorce expenses with the remainder being placed in escrow for equitable distribution. After a divorce trial, the Family Court ruled that the parties were to share equally in the proceeds resulting from the sale of the marital property. The court also ruled that Mr. Meyers' was also responsible for all income tax and interest, as well as, all penalties that were due because he liquidated his retirement assets. Following this, the court created an escrow account in the amount of 40% of Mr. Meyers' income in the years that he did not pay taxes in order to protect his ex-wife from being charged with tax liabilities. The court judgment provided for Mr. Meyers' full portion of the escrow funds resulting from the sale of the marital home, totaling $94,921.47, to be transferred directly to another account held by his attorney for the sole purposing of paying for his income tax penalties. Subsequently, Mr. Meyers applied for a release of the escrowed funds to pay for $32,000 of his attorney's fees and $43,000 for her personal use. The Family Court denied his Motion for these funds stating that the amount of taxes that he owed exceeded the amount held in escrow. Mr. Meyers appealed. The Appellate Division held the parties' final divorce judgment specifically ordered the creation of the escrow account to pay for the tax debt that Mr. Meyers owed to the IRS and therefore the Family Court had the proper basis to order that the escrow account remain undisturbed until the tax issues were resolved. Mr. Meyers also argued that the escrowed funds should be released because his attorney had a valid lien against those funds according to N.J.S.A. 2A:13-5 and that the attorney's lien took precedence over the tax lien. According to the Appellate Court, the New Jersey Attorney's Lien Act, states that any attorney representing a party in an action "shall have a lien for compensation . . . which shall contain and attach to a verdict, report, decision, award, judgment or final order in his client's favor, and the proceeds thereof in whose hands they may come." Musikoff v. Jay Parrino's The Mint, L.L.C., 172 N.J. 133, 139 (2002). In this case, the escrow funds were not part of a judgment or Order in Mr. Meyers' favor. They were a conditional award as part of equitable distribution. 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 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, divorce, custody, parenting time, 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.

Reimbursement of Child Support and Legal Fees Awarded post-Judgment

The recent Appellate Division case, Dickson v. Hansson, is a post-judgment dissolution case in which the Plaintiff, Abra Dickson, appealed from a 2013 Family Court order awarding her ex-husband, the Defendant Peter Hansson, counsel fees totaling $3,200 stemming from his successful Motion to enforce an earlier court order involving his over payment of child support. On appeal, the Plaintiff asserts that the counsel fees were not warranted because she did not "act in bad faith," and the court failed to properly apply Rule 5:3-5(c). The Appellate Court affirmed the decision of the lower court. in 2012, the Family Court ordered a modification of the Defendant's child support obligation to recognize the parties' daughter's college expenses. In the order, the court terminated the Defendant's child support obligation affective August 2012, based upon provisions in the parties' Property Settlement Agreement (PSA) regarding the Defendant's obligation to pay 100% of his daughter's college expenses. After the order was issued, the Defendant's attorney asked the Plaintiff for a refund of a few months of child support payments that the Defendant made prior to the issuance of the court order in the amount of $2,826. The Plaintiff responded by stating that the money was gone because she gave it to their daughter who spent it on expenses. In 2013, the Defendant filed a Motion to enforce the prior court order to get back the money that he over paid in child support and requested counsel fees. The Family Court judge ordered that the Plaintiff refund the Defendant $2,826 in child support that he paid and awarded the Defendant $3,200 in counsel fees. The Plaintiff appealed. The Appellate Division affirmed the decision of the lower court and held that "an allowance of counsel fees and costs in a family action id discretionary" but requires the court to consider the factors set forth in Rule 5:3-5(c). Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The Appellate Division did not receive any information provided to the trial court when it calculated the attorney's fee award from the Plaintiff and therefore the court was in no position to overturn that portion of the Family Court's ruling. Further, the court found no abuse of discretion in the Family Court's ruling. It found that the Plaintiff intentionally failed to comply with the court's order directing repayment to the Defendant, and taking the unreasonable position that the child support should be reimbursed by her daughter and not the Plaintiff herself. The court determined that the Plaintiff's decision to give the child support money to her daughter did not relieve her of the obligation to refund the overpayment. 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.

Equitable Distribution of Pension Reversed on Appeal

In the recent Appellate Division case, Krupinski v. Krupinski, the Court reversed the Family Court's decision denying Mr. Krupinski's Motion to terminate his alimony and directed the trial court to provide an order for an exchange of discovery in a post-divorce equitable distribution dispute over a party's pension. Mr. Krupinski appealed from the lower court's decision because his ex-wife, whom he divorced in 1990, was continuing to receive a large portion of his teacher's pension through a Qualified Domestic Relations Order (QDRO), which entitled his ex-spouse to the marital portion of his pension. When the parties divorced, Mr. Krupinski was earning $45,000 a year. After the divorce, he acquired advanced degrees and eventually got a job working for the school administration. When he retired his pension was based upon a yearly salary of $132,000. Pursuant to N.J.S.A. 2A:34-23(b), "when a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for the purposes of determining alimony." D'Oro v. D'Oro, 187 N.J. Super. 377, 454 (Ch. Div. 1982). In the current case, the Appellate Court found that the Family Court erred in denying Mr. Krupinksi's Motion to terminate his alimony obligation without making an initial determination that his pension benefit had increased because of his post-divorce education and training. According to the court, the Motion judge was required to identify which portion of Mr. Krupinksi's pension shared by his ex-spouse was a joint effort of the parties during their marriage and which part was due to his post-divorce efforts. Based upon this determination, the post-divorce increase in Mr. Krupinski's salary should be excluded from the equitable distribution of the marital asset. The Appellate Division ultimately held that the case should be remanded to the Family Court for the establishment of a discovery schedule to determine whether or not there are material issues of fact in dispute warranting an evidence hearing with regard the distribution of the marital asset. The equitable distribution of assets and alimony are 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 or alimony it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony, 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.

Limited Duration Alimony Award Appealed By Husband

In the recent post-judgment case, Manduley v. Perez-Manduley, Jesus Manduley, appealed from a Family Court award of four years of limited duration alimony totaling $3640 a year to his ex-wife, Defendant Ana Perez-Manduley. The Appellate Court affirmed the decision of the Family Division. The parties in this case were married in 2005 in the Dominican Republic. After their nuptials, the Plaintiff returned to New Jersey where he found work as a trash collector. The Defendant remained in the Dominican Republic to work as a nurse's assistant because she was not an American citizen. During that time, the Plaintiff sent money to the Defendant to assist her with her living costs. Eventually, she moved to the United States where the parties lived in New Jersey. The marriage never bore any children. The Defendant was dependent on her husband when she lived in the Dominican Republic and although she worked as a home aid in America, the Plaintiff paid the vast majority of the household expenses. At the divorce trial, the Defendant requested an award of four years of limited duration alimony at $500 per month totaling $6,000 a year. The Plaintiff stated that he would agree to pay some alimony if the city that employed him agreed to allow him to work overtime, but otherwise alimony should not be awarded. The Family Judge ruled that the Plaintiff was to pay the Defendant limited duration alimony in the amount of $3640 per year and that she would receive her marital share of his pension. The Plaintiff appealed from this judgment. The Appellate Division affirmed the decision of the Family Court. The Appellate Court found that the trial judge's decision regarding alimony was consistent with the proofs that were presented at trial and properly made pursuant to N.J.S.A. 2A:34-23(c). Both parties are parties of limited means and because the Plaintiff provided primary support for the family during the marriage he should have to pay modest alimony. Further, the four year term of the alimony award was considered to be fair for a seven year marriage. The award equitably served the purposes of limited duration alimony under the law. Gnall v. Gnall, 432 N.J. Super. 129, 150 (App. Div. 2013). If you anticipate that you may want to petition the court for a post-judgment modification of your alimony or child support 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.