September 8, 2008
LYNN A. STEIN, PLAINTIFF-RESPONDENT,
LON E. MAMOLEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-323-00B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges Collester and C.S. Fisher.
Defendant, Lon E. Mamolen, former husband of plaintiff Lynn A. Stein, appeals from the May 25, 2007 order of Judge Max A. Baker of the Atlantic County Family Court denying his request for a reduction in child support for their three children. We affirm.
Incorporated into the December 13, 1999, judgment of divorce was a property settlement agreement (PSA) providing that the parties were to share joint legal custody of the children with plaintiff designated as parent of primary residence. At the time of the execution of the PSA the defendant was employed as an attorney with the New Jersey Casino Control Commission with an annual salary of $58,000. Plaintiff was a speech pathologist with the Atlantic County Special Services School District earning $50,820 per year. The children were to spend alternate weekends with the defendant for three consecutive overnights in addition to one overnight every other week. The husband was to pay support for the children of $199 per week, but the support was reduced under the PSA to $154 per week when the husband secured a residence to accommodate the children. The agreement stated that, "These support amounts are calculated in accordance with the Child Support Guidelines Worksheet annexed hereto. Pursuant to the New Jersey Rules of Court (R. 5:6A), this support shall be subject to a bi-annual cost of living adjustment ("COLA") calculated in the manner as provided by law."
In December 2001, child support was COLA-adjusted to $163 per week, and in December 2003, to its present level of $171 per week. Defendant's first motion to reduce child support was denied on October 5, 2001. Pursuant to his application to increase his parenting time with the children, an order was entered on April 25, 2002 granting an increase to five consecutive overnights on alternate weeks with dinner one night on the other week instead of an overnight, the net result being an increase in one overnight of parenting time for the defendant. The order did not provide for any decrease in child support.
In March 2003, the defendant sought a reduction in child support from the amount of $163 per week he was paying under the then COLA-adjusted order based on the increase in his overnight parenting time as provided in the April 25, 2002 order. When the motion was heard, plaintiff's gross income was $70,252, and defendant's gross was $75,036 of which $5,421 was attributable to a one-time trust commission received in 2002 in connection with the administration of a family trust. On March 28, 2003, Judge Baker entered an order first determining that there had been a sufficient change of circumstances to review child support. However, upon application of child support guidelines, he calculated the amount at $160 per week, a mere $3 difference. Since he found that the existing order was significantly the same, he declined to reduce the prior order of $163 per week.
Within six months, on September 4, 2003, defendant filed another application to reduce child support based again on his increase in parenting time as well as the elimination of his $5,421 one-time commission in 2002 for administration of the family trust. On October 3, 2002, Judge Baker denied defendant's motion based on no change of circumstances since the prior order of March 2003.
In early 2007 the parties were notified by the Child Support Unit of the Atlantic County Probation Department of their right to an agency review of the existing child support order since more than three years had passed since the initial order. Defendant provided the paperwork for the review, but the plaintiff declined. The parties were then advised that if a review was sought, it must be a motion before the Family Court.
On April 30, 2007, defendant filed an application for review and modification of child support. He stated that while his annual salary had increased to $76,442, plaintiff's employment with the school district plus her summer employment earnings equaled a gross income of $80,015. He contended that there were significant changes of circumstances warranting a review and reduction of his child support obligation. He again relied on the fact that since 2002, his parenting time increased one overnight every other week and that his one-time trustee commission ended in 2002. This time he added that the percentage increase in plaintiff's income substantially exceeded his percentage increase since the time of divorce. He argued therefore that he was entitled to a reduction of $64 per week based on child support guidelines so that his child support payments should be reduced from $171 per week to $107 per week. Alternatively, he asserted that he had a right of review of the support obligation based upon the passage of three years under N.J.S.A. 2A:17-56.9(a).
On May 25, 2007, Judge Baker entered the following order from which defendant appeals:
1. Defendant's request for a modification of his child support obligation is denied. Defendant has failed to provide this Court with proof of a substantial change of circumstances that would warrant this Court modifying Defendant's child support obligation.
2. Defendant's current child support obligation for the minor children . . . in the amount of $171.00 per week shall remain in full force and effect.
3. Defendant's request for counsel fees is denied.
On appeal defendant first argues he demonstrated a sufficient change in circumstances to warrant a modification of his child support obligation under Lepis v. Lepis, 83 N.J. 139 (1980). He points out that he is currently paying child support in the amount originally fixed in the PSA increased by COLA adjustments. He contends that the parties' circumstances have changed due to his additional overnight, the absence of his one-time commission, and the percentage increase in plaintiff's income to exceed his own. He states his requested reduction to $107 per week is based on calculation of the child support guidelines. We disagree.
Lepis did not hold that any change of circumstances would constitute a basis for review or modification of a support order. A substantial change of circumstances is required for an order of modification. The previous orders from which appeals were not taken denied Lepis relief based on the one overnight and the loss of non-recurring income. The only change now asserted is the increase in plaintiff's income from two employments raising her income to slightly above plaintiff. First, we note that the PSA does not provide for any adjustment based upon the comparative increase or decrease in the parties' income. Moreover, while defendant has not received the same percentage increase in income as plaintiff has working at two jobs, his income increased some $17,000 over eight years since the date of divorce. Furthermore, he makes no argument that the amount of his child support exceeds the needs of the children which obviously have increased. The $171 per week for the parties' son, now age 15, and twin girls, age 12, has remained the same for over four years without a COLA adjustment. Therefore, the increased needs of the children have been met by plaintiff supplementing the amount of child support paid by defendant.
Lepis and its progeny are not designed to tinker with child support obligations established by the parties in a PSA. Moreover, the reductions in child support awards contained in Appendix IX-F child support tables as amended in September 2006 do not constitute a basis for a change of circumstances review under Lepis since it would mean that many child support awards prior to the amendment would be reviewable for modification. Defendant cites no authority for this proposition, and we do not find the argument persuasive.
Defendant further contends he is entitled to a review of his child support because more than three years have passed independent of showing changed circumstances since the amount of his child support is higher than the guidelines. The applicable statute reads as follows:
At least once every three years, unless the State has developed an automated cost-of-living adjustment program for child support payments, the parties subject to a Title IVD support order shall be provided notice of their right to request a review, which shall be conducted in accordance with the rules promulgated by the State IV-D agency in consultation with the Supreme Court.
[N.J.S.A. 2A:17-56.9a. (Emphasis added.)]
This 1998 amendment mandating automatic cost-of-living adjustment for child support awards eliminates the requirement of a three-year review. See Rule 5:6B. Therefore, defendant's argument that he was entitled to a right of review of his child support obligation based on the passage of three years is without merit.
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