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Ates v. Atkins

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 16, 2009

KWASHEDDA ATES, PLAINTIFF-APPELLANT,
v.
JOHN ATKINS (AKA AIKEN), DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-906-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2009

Before Judges Skillman and Grall.

Plaintiff appeals from a June 4, 2008 order denying her motion for an increase in child support and a July 18, 2008 order denying her motion for reconsideration of the denial.

The parties, who are not married, have two children. The parties are not currently residing together. By order dated March 3, 2008, the trial court imposed an obligation upon defendant to pay $105 per week to plaintiff for child support plus 53% of each of the children's medical expenses in excess of $250. The order states that the amount of defendant's child support obligation was based on $320 per week "imputed income."

On May 6, 2008, plaintiff filed a motion for an increase in child support. Plaintiff alleged that defendant was receiving unemployment compensation benefits when his support obligation was established but that he subsequently obtained new employment. This allegation was supported by court records indicating that a wage execution was in effect on the return date of plaintiff's motion. In addition, plaintiff noted that defendant was present in court dressed in his new work uniform.

Defendant did not disclose the amount of his compensation in his new employment. Consequently, the trial court did not have any basis upon which to compare defendant's income at the time of the motion for an increase in child support with his imputed income at the time his support obligation was established.

The trial court denied defendant's motion for an increase in child support on the ground that she had not made a prima facie showing of changed circumstances.

Plaintiff filed a motion for reconsideration. In support of her motion, plaintiff filed a certification which stated in part: "I know the Defendant very well, having been with him for over 5 years. He never made as little as the $8.00 per hour that the Court imputed to him [in establishing his $105 per week child support obligation]." The trial court denied this motion by order entered July 18, 2008 without opinion.

A party seeking a modification of child support must make a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Before a court will order the supporting parent to disclose financial information, a party seeking an increase in child support must make a prima facie showing of changed circumstances. Ibid. An increase or decrease in the supporting parent's income constitutes a changed circumstance that may warrant a modification of his or her child support obligation. Id. at 151.

We conclude that a change in defendant's circumstances from being unemployed when his child support obligation was established to being employed when plaintiff moved for an increase in child support presented a sufficient prima facie showing of changed circumstances to require defendant to provide discovery regarding his current income. Id. at 157. If that discovery indicates that defendant's current income is sufficiently greater than the income imputed to him when his child support obligation was established, plaintiff may be entitled, depending on all other relevant circumstances, to an increase in child support.

Accordingly, the June 4, 2008 order denying defendant's motion for an increase in child support is reversed, and the case is remanded to the trial court for further proceedings in conformity with this opinion.

20090416

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