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O'Brien v. O'Brien

November 10, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-943-02.

Per curiam.


Submitted: October 20, 2010

Before Judges Sapp-Peterson and Fasciale.

In this post-judgment matrimonial action, plaintiff, Colleen O'Brien, appeals from a June 1, 2009 order reducing defendant's child support obligation and emancipating one child, and a July 17, 2009 order denying reconsideration. We reverse and remand for a plenary hearing to determine defendant's income, the value of his business, whether to emancipate the child, and to recalculate defendant's support obligation.

The parties were married for approximately fourteen years and had four children together.*fn1 When the parties divorced in 2003, plaintiff was designated as the parent of primary residence for the children, defendant agreed to pay plaintiff $580 per week in child support, and defendant retained full interest in his gas station, automobile repair facility, and towing business. Although defendant's actual income was unknown, his accountant imputed income to him in the amount of $120,000. Defendant acknowledged that $580 per week exceeded the New Jersey Child Support Guidelines. Plaintiff was unemployed in 2003.

In April 2009, defendant sought to reduce his child support obligation because plaintiff obtained a job, defendant's income was allegedly reduced, and the oldest child was eligible for emancipation.*fn2 Plaintiff argued that their son lived at home and was enrolled in school, and a material dispute existed about the amount of defendant's income. She requested that the judge appoint a forensic accountant and conduct a plenary hearing.

The judge emancipated the parties' oldest son and lowered defendant's child support obligation to $330 per week. In calculating the new support payment, the judge used the income amount of $120,000 that had been imputed to defendant in 2003. Defendant did not object to the application of $120,000 even though the judge found that his 2006, 2007, and 2008 tax returns "indicate that [defendant] earns less than $95,000 per year." The judge denied plaintiff's request for a plenary hearing.

On appeal, plaintiff argues that defendant failed to demonstrate a permanent and substantial change in circumstances warranting a reduction in child support. Plaintiff contends that the judge determined improperly that his son was emancipated, and abused her discretion by applying the child support guidelines without determining defendant's actual income.

A decision regarding modification of support obligations due to changed circumstances "rests within a [f]amily [p]art judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)). We do not disturb that decision "absent an abuse of discretion." Id. at 23.

Child support orders resulting from an agreement, such as the agreement here that defendant pay $580 per week to plaintiff, may be revised, Zazzo v. Zazzo, 245 N.J. Super. 124, 131-32 (App. Div. 1990) (citing N.J.S.A. 2A:34-23), certif. denied, 126 N.J. 321 (1991), but the party seeking the modification "has the burden of establishing the circumstances that warrant the change." Id. at 132. Subsequent employment by a dependant spouse is considered a changed circumstance. Lepis v. Lepis, 83 N.J. 139, 151 (1980). Emancipation of a child may warrant reduction in support payments. Once a prima facie showing of changed circumstances has been established, the court must decide whether to conduct a hearing. Id. at 159. "[A] party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary." Ibid.

We conclude that defendant has established that changed circumstances exist because plaintiff is now employed as a registered nurse. Id. at 151. A plenary hearing is required, however, because there exists a genuine issue concerning the amount of defendant's income and the value of his business.

The incomplete record prevents any meaningful determination of the amount of defendant's income or value of his business. Defendant produced two pages of his unsigned 2006 federal income tax return, his unsigned 2007 and 2008 federal and state income tax returns, and a purportedly incomplete case information statement (CIS). Plaintiff argues that defendant failed to list in his CIS the separate accounts, dividends, and an Individual Retirement Account that he listed in his tax returns. Moreover, although defendant claims that his income decreased because fuel tanks were removed in 2004 from his gas station, defendant produced no records that reflect a decrease in his income.*fn3

Lastly, the record reflects a dispute about where the parties' oldest son lived and whether he was enrolled in school. A determination of emancipation is a fact-sensitive inquiry and the "demonstrable needs of the child, not the child's age, are determinative of the duty of support." Patetta v. Patetta, 358 N.J. Super. 90, 93-94 (App. Div. 2003). Thus, emancipation "occurs when the fundamental dependant relationship between parent and child is terminated. When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be ...

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