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David C. Onyiuke v. Chinelo N. Onyiuke

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2011

DAVID C. ONYIUKE, PLAINTIFF-APPELLANT,
v.
CHINELO N. ONYIUKE, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1330-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 2011

Before Judges Fuentes, Ashrafi and Newman.

Plaintiff David Onyiuke appeals from a June 16, 2010 order of the Family Part increasing his child support obligation and an August 31, 2010 order denying his motion for reconsideration. We affirm.

The parties were married in 2001 and divorced in 2007. They have two children, a girl born in July 2002 and a boy born in October 2003. Defendant mother has primary residential custody of the children, and plaintiff father has parenting time rights at specific times as provided by a custody and parenting time order incorporated into the May 25, 2007 judgment of divorce following trial.

The first child support order appears to have been entered on September 15, 2006. It required that plaintiff pay $158 per week to defendant. At that time, plaintiff reported income from his job as a probation officer in Essex County of just under $49,000, and defendant's income as a registered nurse was approximately $66,500. In May 2008, one year after the judgment of divorce, the Union County Probation Division administratively determined that a cost of living adjustment (COLA) would not be made at that time.

In November 2009, in the course of other post-divorce litigation, defendant moved for an increase in child support. The court included the child support motion in the hearing it was scheduled to conduct on other matters.

Following the plenary hearing, Judge Kenneth J. Grispin decided the several motions in a detailed written opinion dated June 16, 2010. Pertinent to child support, the judge found that plaintiff's salary as a probation officer had risen each year, while the income of defendant had remained steady during that time. In addition, plaintiff had earned supplemental income for each year from 2005 through 2008 from temporary, part-time work as a document examiner for lawyers in New York. Plaintiff is admitted to practice law in New York and testified during the hearing that he had used his vacation and holiday time to do the part-time work. In 2007, his total income was $62,862, and in 2008, it was $69,841. Plaintiff stopped the moonlighting work in 2009 because, he said, it was depriving him of time for other activities and had become too stressful. Nevertheless, his salary from his full-time job had risen to $57,387 in 2009, and that amount was seventeen percent greater than his 2006 salary upon which child support was calculated.

Judge Grispin found that plaintiff's increased income was a changed circumstance that warranted a recalculation of his child support obligation. The judge took the average of defendant's income for the three years from 2007 through 2009 and, based on a child support worksheet, calculated his new child support obligation at $185 per week.

Plaintiff makes several arguments challenging the increase for alleged procedural and substantive errors. We have reviewed the record and find no significant error. With the exception of one modification that does not affect the result, we affirm the orders appealed from for the reasons stated by Judge Grispin in his comprehensive written opinion of June 16, 2010, and his oral decision from the bench on August 31, 2010.

N.J.S.A. 2A:17-56.9a provides in pertinent part:

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 IV-D support order shall be provided notice of their right to request a review, . . . Such reviews shall take into account any changes in the financial situation or related circumstances of both parties and whether the order of child support is in full compliance with the child support guidelines. [(Emphasis added).]

Rule 5:6B provides for COLA reviews of child support orders every two years. Therefore, the exception clause in the statute is applicable, and a party to a child support order does not have an automatic right to judicial review of child support every three years. The party seeking modification must show changed circumstances in accordance with Lepis v. Lepis, 83 N.J. 139, 157 (1980).

At the same time, the Family Part judge has "'the utmost leeway and flexibility in determining what is just and equitable'" in assessing whether a support obligation should be modified. Id. at 147 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). "When the movant is seeking modification of child support, the guiding principle is the 'best interests of the children.'" Id. at 157.

An increase in the supporting spouse's income is recognized as a change in circumstance. Id. at 151; Lissner v. Marburger, 394 N.J. Super. 393, 399 (Ch. Div. 2007). A child support order may "be modified upon a showing of substantial, non-temporary changes in ability to support oneself or pay support." Gordon v. Rozenwald, 380 N.J. Super. 55, 67-68 (App. Div. 2005). Here, plaintiff's regular salary had increased to $57,387 in 2009. Even without income from the temporary New York employment during the previous several years, the seventeen percent increase was a changed circumstance that authorized an adjustment in the child support order. Nor did the June 2010 administrative COLA review affect the judge's authority to make findings of fact from the evidence and to determine the proper amount of child support to be paid.

Whether the supplemental income was temporary or enduring was a factual determination, and the Family Part judge's finding in that regard is binding on appeal if there is adequate, substantial, and credible evidence in the record to support it. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). Plaintiff had earned supplemental income in each year from the time of divorce until post-judgment litigation returned the parties to the court in 2009. The judge's determination that the supplemental income was not temporary was supported by substantial evidence in the record.

There was also no reversible error in the judge's decision to take the average of income for three years preceding defendant's motion to increase child support rather than only plaintiff's 2009 income. See Platt v. Platt, 384 N.J. Super. 418, 426-27 (App. Div. 2006) (court did not abuse its discretion in averaging husband's income from self-employment for the prior five years). The Child Support Guidelines provide that sporadic income may be calculated by averaging the earnings of the previous thirty-six months. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2455-56 (2011). For "overtime pay or income from a second job, the average is based on the prior 12 months or first receipt whichever time is greater." Id. at 2456. Thus, the Guidelines authorize averaging for a period greater than the immediate past twelve months. Furthermore, there was no abuse of discretion in the judge's decision not to exclude for good cause plaintiff's income from the second job.

Affirmed.

20110718

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