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Connell v. Connell

July 01, 1998

LORNA CONNELL (BAGDASARIAN), PLAINTIFF-RESPONDENT,
v.
DAVID DAY CONNELL, JR., DEFENDANT-APPELLANT.



Before Judges King, Cuff and Fall.

The opinion of the court was delivered by: Fall, J.s.c. (temporarily assigned).

[9]    Argued: June 3, 1998

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County.

This appeal raises a previously unaddressed issue whether an inheritance received by a parent should be considered in calculating child support. We affirm the motion Judge's Conclusion an inheritance is a proper consideration in computing child support but remand because of irregularities in the calculation which require recalculation of the child support obligation.

This is a post-judgment application for modification of child support. The parties were married in 1978. The three children of their marriage are unemancipated. The judgment of divorce was entered in May 1993 incorporating their property settlement agreement. It provided for a joint custodial relationship with primary physical custody of the children with the mother. The father was required to pay child support at the rate of $306 each week. He was to provide the mother his W-2 income forms each year for the purpose of possible child support adjustments. As a result of a post-judgment application, the child support obligation was increased to $374 each week by order of July 14, 1995. During that application the mother raised the issue of father's inheritance from his father's estate. The father contended he received no distributions, as the estate had not yet been settled. Paragraph seven of the July, 1995 order provides:

(7) That plaintiff's request to require defendant to supply information regarding his receipt of inheritance from his father's estate is moot. When the executor does the final accounting as to defendant's share, that information shall be provided to pl[aintiff] prior to distribution.

The father's 1996 application for reduction of child support based on allegations of reduced income was denied by order of December 6, 1996 which order provided, in part:

5. Defendant is hereby ordered to make full disclosure of all distributions received by defendant from the Estate of David D. Connell, or related to the dea[th] of David D. Connell, and in the future, within 10 days;

In April 1997 the mother filed a motion seeking various relief, including an increase in child support and establishment of a college trust fund for the children. She stated the father had received $496,934.40 in distributions from his father's estate between August 1995 and March 1996, alleging her first notification of this was a December 16, 1996 letter received pursuant to the December 6, 1996 order. The father filed a cross-motion seeking various relief, including reduction of child support based upon loss of employment. He contended the amount of inheritance, after payment of estate taxes, was significantly less than alleged. The father further asserted he used the inheritance to purchase a vacation home in Maine on about August 31, 1995 for $235,282.20; he also purchased a used boat for $7,500 and a new Suburban motor vehicle for $36,006. These motions were heard on May 16, 1997. By then the father had obtained employment at a lesser salary. The motion Judge denied the application to modify child support, continuing it at the $374 per week rate.

In reaching that Conclusion the Judge recognized the reduction of the father's income but reasoned unemancipated children have the right to have inherited funds considered when child support is calculated, even if invested in a non-income producing asset. We - 4 -agree, but disagree with the method of calculation.

The Judge decided to impute interest income to the entire net inheritance at an annual rate of 8%. The earned and unearned income of the parents exceeded the $52,000 net income limitation of the Child Support Guidelines in effect at the time of these motions. Utilizing solely the guidelines, the motion Judge derived the weekly child support figure of $374. On appeal, the father contends it was improper to consider the inheritance in the child support analysis because it was invested in a non-income producing asset. He also takes issue with applicability of the guidelines and the interest rate selected.

Children of divorce have the right to support from their parents at least at a level of the standard of living to which they have grown accustomed prior to separation. Lepis v. Lepis, 83 N.J. 139, 150 (1980). Both parents share the obligation to support their children, determined mainly by the quality of economic life during the marriage, and not mere survival. Pascale v. Pascale, 140 N.J. 583, 592 (1995). Children are also entitled to share in the good fortune of their parents to meet their needs in accordance with the lifestyle of their parents. Italiano v. Rudkin (Italiano), 294 N.J. Super. 502, 506 (App. Div. 1996); Walton v. Visgil, 248 N.J. Super. 642, 649-650 (App. Div. 1991); Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

The Child Support Guidelines in R. 5:6A were adopted to guide courts in determining the appropriate child support obligation of the non-custodial parent. Appendix IX-A to the version of the guidelines in effect at the time these motions were heard provides:

Considerations which may make these child support guidelines inapplicable or cause the child support ...


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