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O'Brien v. O'Brien

October 5, 2010

WILLIAM O'BRIEN, PLAINTIFF-RESPONDENT,
v.
NANCY O'BRIEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1075-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 15, 2010

Before Judges Axelrad and J. N. Harris.

Defendant Nancy O'Brien (mother) appeals from the Family Part's post-judgment order of July 24, 2009, reducing the child support obligation of plaintiff, William O'Brien (father), to $1,000 per month, and September 18, 2009 order denying reconsideration. We affirm in part and reverse and remand in part.

The parties' March 2005 property settlement agreement (PSA), incorporated into the October 2005 final judgment of divorce, designated mother as primary residential custodian of all three children. Father's support obligation was set at $3,000 per month, to decrease by $1,000 as each child graduated from high school. The PSA did not reference either party's income or a New Jersey Child Support Guidelines (guidelines) worksheet, state whether the child support award was calculated under the guidelines, or explain why the parties deviated from the guidelines. See Pressler & Verniero, Current N.J. Court Rules, Appendices IX-A through IX-H to R. 5:6A at 2429-2525 (2011).

On July 16, 2007, the parties entered into a consent order that allowed mother to relocate to North Carolina with the three children and reduced father's child support obligation to $2,500 per month. No guidelines calculation or explanation of the figure was referenced in the order.

The parties entered into another consent order on February 8, 2008, in response to their eldest daughter's emergency relocation to New Jersey due to psychiatric issues. The consent order designated father as her primary custodial parent and acknowledged an agreement by the parties "[o]n or about June l5, 2008, . . . to re-visit [their daughter's] custodial situation in the event that [she] personally elects to move back to North Carolina and if the parties agree that it is in [her] best interest." The order further provided that father's child support obligation "shall be temporarily reduced from $2,500 to $2,000 per month commencing April 1, 2008 in light of [their daughter's] change in custody." Again, no income information was referenced or guidelines support calculation performed. Both parties represent that their then-sixteen-year-old daughter's relocation to New Jersey was a "midnight hour" decision involving a degree of urgency, and it does not appear the parties performed a financial analysis to arrive at the support figure.

On June 1, 2009, father moved for post-judgment relief, seeking to modify his child support obligation to mother based on a purported decrease in his income occasioned by the deteriorating economy and the permanent relocation of their eldest daughter with him.*fn1 He claimed that, "in a show of good faith," he had consented to a slight reduction in child support for his middle and youngest daughter who remained with mother rather than seeking a judicial recalculation to reflect the change in obligation from three children to two children and a split parenting arrangement.

In a responsive certification, mother claimed father misrepresented his income and contended the parties intended to encompass her child support obligation for their eldest daughter in the $500 reduction, taking into account, in part, her responsibility for their daughter's moving expenses and travel expenses for parenting time. Mother also claimed the parties deliberately chose not to apply the guidelines in any prior calculations of child support because they recognized the children's needs exceeded the guidelines.

Following oral argument, the judge found that although father had not established a change of circumstances with respect to his reduction in income, the eldest daughter's once-temporary relocation had become permanent, constituting a change of circumstances sufficient to warrant a modification in father's child support obligation. The judge reduced father's support obligation to $1,000 per month, effective June l, 2009, memorialized in an order of July 24, 2009. The judge explained on the record he did not base the support calculation on the guidelines. Rather, he based it on the $3,000 per month support figure with ensuing reduction of $1,000 per child upon graduation from high school contained in the parties' PSA, reasoning that "[t]here seemed to be a fair inference . . . that the parties looked at this as being $1,000 per child." Consequently, the judge offset what husband would theoretically pay wife for the two children ($2,000 per month) against what wife would theoretically pay husband for the one child ($1,000 per month). Although the judge reiterated that he did not use the guidelines to calculate child support, he noted as corroboration that if he accepted the figures as provided by father, the guidelines would dictate an award of approximately $900 per month, which was "pretty close to the $l,000."

Mother filed a notice of motion for reconsideration, reiterating that father's child support obligation had already been reduced from $2,500 to $2,000 per month to reflect their eldest daughter's relocation to New Jersey and there was no basis for a further reduction. Mother represented she had recently begun work as a hairdresser and did not earn $30,000 per year, further urging that her income should be immaterial to the support calculation as there were no provisions in the PSA or subsequent consent orders conditioning father's support obligation on her earning capacity. In her reply certification, mother attached her 2008 tax return evidencing income of $12,845.30 and recent pay stubs, which she extrapolated to an annual income of $15,174.00. She also attached child support guidelines calculations utilizing father's annual salary at $145,000 and hers at both $15,000 and $30,000 to demonstrate that father's calculation as accepted by the judge was inaccurate.*fn2 Mother represented that father's monthly child support obligation would range from $1,449.10 to $1,801.70, depending upon utilization of her 2008 income, her projected 2009 income, or the $30,000 figure asserted by father.*fn3 By order of September l8, 2009, the judge denied reconsideration, finding mother presented no new information or law, R. 4:50-1, and declined to address mother's claim that the guidelines would yield a support figure in excess of the $1,000 awarded because the issue was only raised in her reply papers, preventing father from responding. This appeal ensued.

On appeal, mother argues the court erred in: (1) finding a change of circumstances sufficient to warrant modification of father's child support obligation and (2) calculating father's child support obligation. We are not persuaded by mother's first argument but agree with her second argument.

When considering a motion to reduce a child support obligation, the movant bears the burden of establishing a change of circumstances justifying a modification. Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. l990), certif. denied, 126 N.J. 321 (l99l). "Courts have consistently rejected requests for modification based on ...


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