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Schwarz v. Schwarz

February 18, 2000

DOREEN SCHWARZ,
PLAINTIFF/RESPONDENT,
V.
JOHN SCHWARZ,
DEFENDANT/APPELLANT.



The opinion of the court was delivered by: Wallace, Jr., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 14, 1999

Before Judges Wallace, Jr., Lesemann and Bilder.

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

This appeal arises out of the Family Part's post-judgment order modifying defendant's child support obligation, but denying his request to alter the beneficiary designation on his life insurance policy to include his new wife and daughter. On appeal, defendant argues the trial judge erred: (1) in calculating his modified child support under the guidelines, and (2) in denying his application to amend the beneficiary designation on his life insurance policy to include his wife and daughter from his subsequent marriage. Further, defendant claims these errors were of constitutional dimension. We reverse and remand for reconsideration.

I.

Plaintiff is a forty-three year old teacher and defendant is a forty-eight year old employed by a public school board. The parties were married on February 14, 1981. One child, Richard, was born of the marriage on March 31, 1986. A final judgment of divorce was entered on August 10, 1992. The judgment incorporated the parties' partial property settlement agreement, which resolved equitable distribution and counsel fees. The remaining issues, including child support, custody, and life insurance, were resolved at trial. The parties were awarded joint legal custody of Richard, with plaintiff having primary residential custody. Based upon the parties' combined income of $77,985 ($21,092 for plaintiff and $56,893 for defendant), plaintiff was awarded child support of $180 per week. Each party was entitled to claim Richard as a tax deduction in alternate years. The final judgment also provided that defendant shall maintain his current life insurance policy through his employment which equals 3 ½ times his salary, naming [plaintiff], as Trustee Beneficiary for the benefit of the Child. If [defendant] terminates his current employment, he shall obtain a term policy of equal value.

In November of 1997, defendant married Karen I. Maier, an attorney who is representing him in this appeal. They have one child, Imogene, born on March 30, 1998.

On May 28, 1998, defendant filed a motion seeking a reduction in his child support obligation based upon changed circumstances and a modification of the final judgment of divorce amending the beneficiary designation on his life insurance policy to include his new wife and child. In support of that motion, defendant submitted his joint 1997 federal income tax return where he claimed $86,733 in joint adjusted gross income, $5,024 in Maier's business losses, and a $3,954 tax refund.

In further support of the motion, defendant submitted a "Child Support Guidelines - Shared Parenting Worksheet" (Shared Parenting Worksheet) in accordance with R. 5:6A (Child Support Guidelines) and Pressler, Current N.J. Court Rules, Appendix IX-D (2000). Defendant listed on line 1 joint weekly gross taxable income of $1,346.15 for plaintiff and $1,587.83 for himself. He subtracted mandatory weekly retirement contributions of $63.13 for plaintiff and $70.55 for himself. He also subtracted from his gross income a $211.11 weekly other- dependent deduction which he calculated on a separate Child Support Guidelines - Sole Parenting Worksheet. He listed Maier's weekly gross income as $80.12. Defendant also considered that Richard spent 57% of his overnights with plaintiff and 43% with him, to compute an adjusted weekly child support payment under the guidelines of $63.99.

Defendant noted in his certification that in compliance with the final judgment of divorce, he had maintained a life insurance policy through his employer which, upon his death would pay three and a half times his salary, or approximately $245,000, for Richard's benefit. Defendant claimed the present value of his remaining child support obligation to Richard, including college expenses, totaled approximately $42,000. Thus, he argued the current value of the life insurance policy was nearly six times greater than the amount necessary to secure his support obligation for Richard, and requested authorization to add Imogene and Maier as beneficiaries.

In her responsive certification, plaintiff conceded that based on the increase in the parties' respective incomes defendant had established changed circumstances. However, she alleged defendant's financial resources had increased far greater than hers because defendant had received a $20,000 increase in salary and a six figure bequest from his father's estate. She also argued Maier was underemployed, and therefore, the judge should impute $93,641 annually, or $1,800.80 per week to Maier in calculating the other-dependent deduction. Plaintiff certified she earned $50,497 in 1997, with a weekly gross of $971 and a weekly net of $816. In her case information statement (CIS) plaintiff listed monthly net income of $3,508.80 with expenses of $3,500. Thus, she claimed any reduction in child support would "substantially" affect her ability to maintain Richard's standard of living.

Plaintiff also submitted a Sole Parenting Worksheet. She calculated that defendant's adjusted weekly child support obligation under the guidelines totaled $185.34 per week. However, in making that calculation, plaintiff failed to include an adjustment for defendant's other-dependent deduction or for the percentage of overnights Richard spent with defendant. Plaintiff asserted the final judgment of divorce required defendant to maintain the life insurance policy for Richard's benefit, not to secure child support payments, and thus, the insurance was not subject to modification.

In response, defendant admitted that both of the parties' salaries had increased since the entry of the final judgment of divorce. However, he argued plaintiff's salary had increased by $29,404 or 139%, while his salary had increased by only $25,674 or 45%. Additionally, he submitted a CIS which showed $5,431 in monthly expenses and claimed a monthly deficit of $614. Defendant also submitted an amended Shared Parenting Worksheet, listing plaintiff's gross ...


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