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Chobot v. Chobot

Decided: May 2, 1988.


On appeal from the Superior Court, Chancery Division, Family Part, Sussex County.

Baime and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.


[224 NJSuper Page 649] The novel issues raised by this appeal are the applicability of child support guidelines, R. 5:6A, to motions to increase child support and the computation of available parental income under R. 5:6A. We today hold that the child support guidelines do apply to motions to increase child support and that payments to amortize debt created by consumer spending, life insurance

premiums or non-mandatory retirement contributions are not deductible when calculating available parental income.*fn1

By judgment dated June 5, 1984, plaintiff husband and defendant wife were divorced. The final judgment incorporated a property settlement agreement signed by plaintiff on February 10, 1984 and by defendant on December 22, 1983. On January 9, 1987, defendant filed a motion for an increase in child support. Following oral argument the Family Part judge ordered that child support for the parties' four children be increased from $70 to $105 per week; that plaintiff be responsible for one-half of all uncovered medical expenses of the children; that support payments be made through the Morris County Probation Department; that support arrears be fixed at $1,053.32 as of March 7, 1987; that plaintiff pay $20 per week toward the arrears and that if plaintiff were to miss two consecutive payments, a wage execution would issue. Plaintiff moved for reconsideration which was denied.

Plaintiff appeals from the ensuing orders of March 16, 1987 and May 11, 1987, and by leave granted defendant cross-appeals from the amount of support ordered.

On appeal plaintiff contends that,

Point I.

The court's modification of the property settlement agreement was not supported by evidence of a substantial change of circumstances.

Point II.

The child support guidelines enacted by court rule were improperly applied retroactively.

In her cross-appeal defendant contends that,

The trial judge abused his discretion by considering plaintiff's consumer debts, pension fund payments, retirement fund and life insurance expenses when computing child support payments.

The record reveals that the parties were married on September 28, 1969. Four children were born of the marriage: Theresa, born April 24, 1970; Sharon, born July 21, 1972; Mandy, born January 4, 1976, and Robert, born September 9, 1978. When the parties separated in 1982, plaintiff agreed to pay $70 per week in child support for the children, who remained in defendant's custody. On December 22, 1983, defendant, without advice of counsel, signed a divorce agreement which had been prepared by plaintiff's attorney. Plaintiff was then working in the maintenance department at Greystone State Hospital, where he had been employed for nine years. Defendant was then only contributing $300 per month for rent and utilities for herself and the children. Transportation was provided her by her future husband. Defendant and her second husband were married. They separated in the summer of 1986.*fn2 At the time of the hearing defendant's second husband was paying $50 per week voluntarily to her for support of their child. In November of 1986, plaintiff stopped paying child support to defendant.

From the parties' submissions, the judge found that defendant received $200.28 per week net from her full time employment, $70 per week from plaintiff and $50 per week from her second husband, giving her $1,379.20 monthly available income for one adult and five children. Defendant also received $204 per month in food stamps.*fn3 Her monthly expenses totalled $1,883.55, leaving her with a monthly shortfall of $504.35. She certified that she owed utility bills of over $600, and rent of over $200.

Plaintiff, who lived with his second wife, their daughter and his step-daughter, was still employed full time by Greystone State Hospital and part time (20 hours per week) by Quick Check, earning $21,573.76 a year gross. Plaintiff deducted a total of $4,451.30 in taxes from his gross income. His monthly income after taxes was $1,462.87. Additionally, plaintiff listed $4,070.82 in annual after-tax deductions, representing dental insurance ($258.18), medical insurance ($298), life insurance ($110), pension ($575), wage executions ($1,825), retirement fund payments ($894.14) and union dues ($110.50) leaving him with a net earned monthly income according to his calculations of $1,087.64. He asserted additional living expenses, including a $203.02 car payment, of $1,472.77 monthly.

Plaintiff certified that he had stopped paying support because his second wife had been ill. He said that in November of 1986 his wife had begun a part-time job but was injured in a car accident. He also claimed that his poor health caused him to cut down the hours on his part-time job. In his case information statement plaintiff said that he owed nine creditors $11,443 and that his wife owed 25 creditors $12,674, of which $7,014 was for her car. At oral argument plaintiff admitted that over $2,000 of debt was for various consumer goods purchased at Bamberger's and J. C. Penney's.

The judge computed plaintiff's obligation in accordance with the child support guidelines as set ...

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