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Lozner v. Lozner

October 30, 2006

LISA LOZNER (N/K/A FITZGIBBON), PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
STEVEN W. LOZNER, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2901-98.

The opinion of the court was delivered by: Lefelt, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 27, 2006

Before Judges Lefelt, Parrillo and Sapp-Peterson.

In this post-judgment divorce action, the motion judge granted defendant Steven Lozner's application to reduce his guidelines-based child support order because of substantial student loan debt. The judge reduced the child support award by finding that defendant's support obligation and student loan debt should not exceed approximately fifty-percent of defendant's net income. The judge's utilization of this arbitrary formula, as well as other errors, require that we remand this matter with instructions regarding how to determine whether substantial student loan debt warrants adjustment of a guidelines-based child support award.

I.

Plaintiff Lisa Lozner and defendant were married on August 15, 1992. Their son Michael was born on January 11, 1995. The parties separated in April of 1998 and, on March 7, 2000, they finalized their divorce. In accordance with a marital settlement agreement, the parties share joint legal custody of Michael and have designated plaintiff as "the Parent of Primary Responsibility," and defendant as "the Parent of Alternate Responsibility." Pursuant to the divorce judgment, defendant, who was in law school at the time, was to "pay child support in the amount of $98 per week [or $421 per month]."

As defendant progressed through college and law school, prior to and during his marriage, he acquired substantial student loans of approximately $240,000. Defendant also acquired approximately $50,000 of credit card debt, which he claims was incurred for educational purposes and to satisfy his child support obligations. Defendant graduated from law school in 2002, and was fortunate to obtain employment at the prestigious law firm of Cadwalader Wickersham & Taft in New York, where his financial prospects brightened considerably.

Defendant's "annual base salary" in 2004 was $135,000. In addition, the law firm periodically awards bonuses. In January 2003, for example, the firm awarded defendant a $4,509.65 bonus and in January 2004, it awarded him a $17,500 bonus. Defendant admitted earning $144,601 in 2004. According to defendant, his "Net Average Earned Income," during the period of January 1, 2004, to June 25, 2004, amounted to $8,664.74 per month. As contrasted with defendant's rising economic prospects, plaintiff works at a travel agency for limited hours, earning an annual gross income of approximately $30,000.

The parties' present dispute began in 2004 when plaintiff attempted to obtain an increase of defendant's support obligation based upon his substantially enhanced earnings. In opposition, defendant argued that plaintiff was underemployed and his large loan debt, which required monthly payments of approximately $2500, precluded a substantial increase in child support over the $116 per week ($500 per month) he had been voluntarily paying since he became employed as a lawyer. In fact, during the hotly contested proceeding, defendant submitted, as noted by the trial court, "a shared parenting worksheet demonstrating he is owed a support obligation of $7.00 weekly."

The motion judge initially ordered, pursuant to the Child Support Guidelines, that defendant should pay support of $231 weekly, with an additional $50 allocated to arrears. The $231 constituted only 13.4% of defendant's $1,720 weekly net income. But defendant moved for reconsideration based upon his large "student loan obligation." He specifically argued "that the Court consider the $576.98 per week [he paid] for student loan debt and [he requested] that [his] net support obligation remain at $116.00 per week for a total of $500 per month."

The court granted defendant's motion and reduced his weekly child support from $231 ($993 monthly) to $173.68 ($746.82 monthly). However, the judge made two mistakes in reaching the reduced figure. First, he found that defendant's net weekly income was $1,501.31, when, in fact, the judge had previously calculated defendant's net weekly income as $1,720, based on a net annual income of $89,447.82. Second, the motion judge arbitrarily and without specific explanation concluded "that defendant's combined child support and loan ...


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