The opinion of the court was delivered by: Herman
In this extended post-judgment application, defendant, Leonard Martinez, an employee of the United States Air Force, seeks reduction of his child support obligation currently enforced by wage garnishment. He asserts he is entitled to such relief because he has demonstrated changed circumstances as father of a recently-born child of his current marriage entitled to his support too, whose frail health has caused unanticipated, substantial, ongoing outlay of funds. Further, plaintiff asserts that since 15 U.S.C.A. § 1673 compels an automatic garnishment reduction from sixty percent to fifty percent of his wages to afford a measure of support for his new family, *fn1 as a matter of law this court must adjust his current obligation, and cannot impose an order that exceeds that new, lower percentage, even if his child support as calculated pursuant to New Jersey Guidelines for his prior two children so warrants.
Plaintiff/father and defendant/mother were divorced in 1993. She continues to reside in New Jersey. He is in Delaware; he has remarried. Defendant is the residential custodial parent of their two children, a daughter age 11, a son age 9. Previous orders set weekly child support a $150, $40 for day care, and $10 on arrears.
On August 24, 1994, the court held a probation review of plaintiff's account. At that hearing, plaintiff also sought a support decrease because of the August 1 birth of his son. Advised his request would be considered upon the filing of motion and supporting certification, he immediately did so. She responded. The parties appeared on September 30, 1994. Plaintiff's net income was computed at $460 per week. The court, as required, used all plaintiff's income sources: his monthly wages, which were taxed; his annual allotment adjustments, BAQ (Base Allowance for Quarters), BAS (Basic Allowance Assistance) and VHA (Variable Housing Allowance), which are not taxed. For garnishment purposes, allotment payments are not includable as part of "disposable income." *fn2
Determining a modification was warranted, the court entered an interim order reducing plaintiff's weekly support obligation by $30, decreased his day care contribution by $12.50, maintained the $10 per week arrearage payment, thereby adjusting the prior orders to $157.50. Following the September motion, the Air Force modified the original percentage garnishment from sixty percent to fifty-five percent (50% plus 5% since arrears also existed; see n. 1). Calculating plaintiff's disposable income at $1212.04, the Air Force commenced to withhold $682.50 per month from his base net wage leaving a shortfall of $12.61 per week, a sum not collected by garnishment since that sum exceeded the fifty-five percent federal calculation. Discussion as to how and if that deficiency could be collected by other legal process was held in abeyance to allow the parties an opportunity for further input. Therefore, defendant obtained counsel, petitioned for accelerated collection of arrearages and for reconsideration of other issues, including the pending modification award based on new, updated income information not previously before the court; the plaintiff cross-filed, alleging special hardship and a right to arrearage abatement. As of February 3, 1995 a hearing on all issues has now been held, the court making the following additional findings relevant to adjudication:
1. The testimony of Janice Coble, Gloucester County Probation Officer, established arrears as of August 4, 1994 at $2,467. She awaits a final court order, at which time she will post additional debits and credits to plaintiff's account.
2. For the year 1994, plaintiff's actual net income was $514; for 1995, $528. Defendant's net income remained at $360 for each year.
3. Defendant's total weekly child care costs had been reduced to $30.
4. The new infant still suffers from a debilitating physical condition, gastro esophagal reflux, which to date has resulted in more than $6000 in uninsured medical and hospital expenses. The child's condition requires 24-hour a day parental monitoring to guard against the child's choking on his own vomit. Likewise, plaintiff's second family continues to struggle with weekly, $30-plus, out-of-pocket pharmacy and medical bills. While defendant, too, has incurred added unexpected monthly medical/pharmacy costs of $20 related to one child's asthmatic condition, this sum is but a small percentage of plaintiff-father's.
5. For comparative purposes only, using a "one family, no other children, no modification for cause" standard, plaintiff's Child Support Guidelines obligation to family one's children would have been $170 per week, to family two's child, $155 per week. See Appendix IX-C, Pressler, Current N.J.Court Rules. But if plaintiff's obligations are calculated on Appendix IX-E, P (c)(4) criteria (support for children of separated second families), his net support for family one would be deducted from his current net wages. His residuary net pay would then constitute the base for second ...