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Cleveland v. Cleveland

Decided: June 25, 1991.

JOHN H. CLEVELAND, PLAINTIFF-APPELLANT,
v.
MARGARET S. CLEVELAND, DEFENDANT-RESPONDENT



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

Judges J. H. Coleman and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.

Ashbey

Plaintiff father appeals from those terms of a family court order which increased his child support obligation from $120 a week to $186.23 per week, ordered that he pay 75% of necessary orthodontic and counseling costs of the children, and ordered him to pay defendant's legal fees of $450.*fn1 We affirm.

Plaintiff, John H. Cleveland, and defendant, Margaret Cleveland, were married on December 14, 1974. The parties had two children now aged 17 and 14. After the parties' separation, but before the divorce, plaintiff was injured. Defendant, who had custody of both children, was obliged to dispose of all her assets. The children lived with relatives. Plaintiff claimed that during that time he had provided direct support for the children, but no support order was entered until May 1983, when an order for $25 a week was obtained on behalf of the children.

In 1984 defendant learned from a newspaper article that plaintiff's lawsuit concerning his injury had resulted in a settlement, amounting to $5.1 million dollars. At that time she did not know the settlement's actual amount or its terms.*fn2

In 1987 plaintiff became eligible to receive Social Security, which included a sum for his children. Plaintiff stopped paying $25 a week, and defendant filed for an increase in child support.*fn3 On July 5, 1988, plaintiff was ordered to pay $120 per week, $60 per child, based on plaintiff's then imputed income of $1,966 per month which did not include the tort recovery periodic lump sums. Although it was known that plaintiff had

received $92,500, his first tort-settlement distribution, plaintiff had spent that money. The 1988 order further provided:

Plaintiff's personal injury settlement lump sum payments shall be considered part of plaintiff's income flow in the determination of child support. Plaintiff shall provide defendant with all information pertaining to his personal injury settlement. The Court hereby reserves the issue of an increase in child support in December 1989 in the event the parties cannot reach an agreement on an upward adjustment of plaintiff's child support obligation to take effect at that time.

Plaintiff did not appeal from that 1988 order. Ultimately the parties did not agree, and after plaintiff's scheduled January 1990 tort-settlement distribution, defendant filed for another increase.

In January 1990, plaintiff had received a distribution of $110,000. He was also scheduled to receive additional lump sum payments of $220,000 in January 1995; $330,000 in January 2000; $440,000 in January 2005; $550,000 in January 2010 and $660,000 in January 2015. This structured settlement was apparently purchased with an $800,000 lump sum.

The judge determined that plaintiff's available monthly 1990 income, not subject to tax, was $4,092.25, itemized as follows:

$1,216.25 ($1,000/mo. at 4% per ...


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