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Nash v. Nash


May 9, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2797-03.

Per curiam.


Submitted April 28, 2008

Before Judges Sabatino and Alvarez.

Christopher John Nash ("the ex-husband") appeals the Family Part's order of June 8, 2007. The order denied his motion to reduce child support payable to his former spouse, Kathleen Marie Nash, now known as Kathleen MacDonell ("the ex-wife"). Because the record suggests that the parties' circumstances significantly changed since the last time that child support was calculated, we vacate the June 8, 2007 order and remand for a plenary hearing.

The parties were married in 1981. Their marriage produced a son born in August 1983, a daughter born in November 1984, and a second daughter born in August 1988.

The parties divorced in the State of New York in 1993. Since that time, both of the parties have remarried. Both have also since moved to New Jersey. The three children of the marriage resided with the ex-wife, pending the completion of their schooling. The ex-wife gave birth to a daughter with her new husband in January 1996.

In August 2003, the New York divorce judgment was registered in the Family Part. The ex-husband concurrently moved to emancipate the son, modify child support, address college tuition obligations, and for other relief. After exchanging discovery, the parties entered into a Consent Order resolving the contested motion issues. The Consent Order, which was negotiated with the assistance of counsel and the advisory input of an Early Settlement Panel, was filed with the Family Part on February 24, 2004.

In paragraph 1 of the Consent Order, the parties agreed that:

Child support for the three children . . . shall be set at $450.00 per week payable directly by [the ex-husband] to the [ex-wife]. Said amount shall consist of $335.00 per week as and for support of the parties' [younger daughter], plus $115.00 per week as and for the support of the parties' [son and older daughter] who are both attending college full time at Quinnipiac University and Sacred Heart University, respectively. As the two [older] children in college graduate and are emancipated, the $450.00 per week in child support shall step down in the amount of $57.50 [per week] for each child.

The next and final sentence of that same paragraph addressed what also was to happen, apart from the two $57.50 reductions for the older children, when the younger daughter became the sole unemancipated child:

At the time that there is only [the younger daughter] remaining as unemancipated, child support for her shall be recalculated based upon the then existing financial circumstances of the parties and the then existing case-law of the State of New Jersey. [Emphasis added.]

The Consent Order also specified that "[t]here shall be no Cost of Living [increase] applied to the above referenced child support obligation."

The Consent Order further provided that the ex-husband was to relinquish certain life insurance policies, which then had a cash surrender value of about $190,000, to the ex-wife, in order to help finance the three children's college costs. In return, the ex-wife agreed to assume responsibility for college costs, and to waive irrevocably any right to seek future contributions from the ex-husband. In that regard, the Consent Order made clear that "[a]ny change in the needs, expenses, incomes, employment or circumstances of the parties shall not . . . be used, directly or indirectly[,] as an application for contribution on the part of [the ex-wife] by the [ex-husband] towards the college education costs for the children of the marriage."

As contemplated, the two older children became emancipated when they each graduated from college. The child support was accordingly reduced by two successive $57.50 amounts, or $115.00. This automatically brought the ex-husband's weekly child support obligation down to $335.00.

Subsequently, the parties' younger daughter matriculated in the fall of 2006 at Villanova University, where she lives on campus during the school year. She continues to reside with the ex-wife during school vacations and the summer.

Meanwhile, since the time that the Consent Order was entered four years ago, the ex-husband has become responsible for four additional unemancipated children with his present wife. He adopted his present wife's child from a former relationship, and he also fathered three more children with her.*fn1

After the parties' younger daughter began her studies at Villanova, the ex-husband filed a motion in April 2007 to reduce his child support further. He also unilaterally decreased his $335.00 weekly payment to $50.00. The ex-wife opposed the application, and also cross-moved to compel payment of the difference in support withheld by the ex-husband. The ex-wife also cross-moved to compel the ex-husband to pay certain dental costs.*fn2

After hearing oral argument and briefly questioning the ex-wife under oath on certain issues, the motion judge denied the ex-husband's motion and granted the ex-wife's cross-motion. During his colloquy with counsel at the motion hearing, the judge noted that the extant $335.00 weekly figure was roughly the same as what would be called for under the uniform Child Support Guidelines had they been applicable, given the parties' respective incomes.*fn3 The judge denied counsel fees to both sides.

In a written statement of reasons filed pursuant to Rule 2:5-1(b), the motion judge stated that continuing the $335.00 weekly child support figure was appropriate, essentially because "the parties' current incomes are similar to the incomes they had on the date they signed the consent order in 2004." The judge did acknowledge that the Guidelines were not applicable because the child needing support is over the age of eighteen and in college. The judge also noted that the ex-husband has been relieved of college costs, and that the ex-husband should not have reduced his child support payment without the court's permission.

On appeal, the ex-husband contends that the motion judge erred in leaving the $335.00 weekly figure intact. He mainly argues (1) that the judge improperly failed to take into account the ex-wife's reduced household costs while their daughter is away at Villanova, and (2) that the judge should not have overlooked the extra financial burdens he has undertaken as the result of the four additional children with his present spouse. We agree.

By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). The statute enumerates several factors to consider in calibrating support, including (1) the "[n]eeds of the child"; (2) the "[s]tandard of living and economic circumstances of each parent"; (3) "[a]ll sources of income and assets of each parent"; (4) the "[e]arning ability of each parent"; (5) the "[n]eed and capacity of the child for education"; (6) the "[a]ge and health of [each] child and each parent"; (7) the "[i]ncome, assets and earning ability of the child"; (8) the "[r]esponsibility of the parents for the court-ordered support of others"; (9) the "[r]easonable debts and liabilities of each child and parent"; and (10) "[a]ny other factors the court may deem relevant." Ibid.; see also Gac v. Gac, 186 N.J. 535, 548 (2006) (applying statutory factors).

The standard for the modification of a negotiated child support agreement is one of changed circumstances. Smith v. Smith, 72 N.J. 350, 360 (1977); Clayton v. Muth, 144 N.J. Super. 491, 493 (Ch. Div. 1976). We agree that the ex-husband presented a prima facie case of such changed circumstances here, arising principally out of the younger daughter's full-time enrollment at college away from home and the ex-husband's added burden of four more children to support in his present household. See Lepis v. Lepis, 83 N.J. 139 (1980) (regarding the prima facie showing of changed circumstances to warrant an adjustment of support).

The motion judge correctly recognized that the uniform Guidelines do not apply to this case because the remaining child of the marriage needing support is over the age of eighteen and is away at college full-time. See Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2008), ¶ 18. The judge erred, however, in applying the statutory factors for child support. The judge also strayed from what the parties appear to have contemplated under their prior Consent Order.

The terms of the Consent Order plainly envisioned that the ex-husband's weekly child support obligation would not only be reduced by $115.00 when the two older children became emancipated, but that the figure also "shall be recalculated based upon the then existing financial circumstances of the parties and the then existing case-law of the State of New Jersey." (Emphasis added.)

The motion judge considered the parties' "financial circumstances" only partially, focusing on the fact that their respective incomes at the time of the motion hearing in 2007 were roughly the same as their incomes when the Consent Order was entered in 2004. Although we agree with that discrete observation, and recognize that the ex-husband continues to earn far more than the ex-wife, there are other material financial considerations that need to go into the calculus.

For instance, the court must take into account the fact that the ex-husband now has four more children to support. Gac, supra, 186 N.J. at 544. The court also must consider the extent that the younger daughter's living away from home during most of the year lessens her mother's day-to-day household expenses.*fn4

Narvae v. Freestone, 281 N.J. Super. 484, 490 (Ch. Div. 1995).

In this latter regard, the motion judge improperly factored into his analysis the ex-wife's singular burden of subsidizing the unemancipated daughter's college expenses. Although those expenses for the ex-wife are undoubtedly real and substantial, the parties expressly stipulated in their 2004 agreement that the ex-husband, having ceded his share of the life insurance policies, would not be responsible for college costs. That is so, regardless of any ensuing financial changes. Consequently, the motion judge's reliance upon the ex-wife's college funding burdens as a child support factor violates, at least indirectly, the parties' agreement to insulate the ex-husband from those burdens.

Overall, the trial court needs to develop in greater detail the parties' comparative financial circumstances. As it is, the record is incomplete and, in several respects, puzzling.*fn5 There are many genuine material issues raised by the documents supplied to us, particularly on the expense side.

All of these matters need to be sorted out on remand in a plenary hearing. Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (requiring plenary hearings to resolve material factual disputes); Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (plenary hearing required in child support modification case). We realize that, at oral argument before the motion judge, the ex-husband's counsel was unreceptive to such a hearing. Even so, a hearing may be necessary in order for the court to get an adequate sense of the facts.*fn6

It may well be that, upon hearing the proofs further, the Family Part may find that no reduction in child support is warranted, or perhaps a smaller decrease than what the ex-husband desires. That assessment is left to the course of future proceedings. If a reduction below the $335.00 existing weekly figure is awarded, the court shall retain the discretion to preserve the ex-husband's original motion filing date as a potential effective date.*fn7

For these reasons, the order denying a reduction is vacated, and the matter is remanded for a plenary hearing consistent with this opinion. We do not retain jurisdiction.

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