On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1738-00.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Waugh*fn1 and St. John.
The opinion of the court was delivered by: LIHOTZ, J.A.D.
We are asked to review whether child support should be reduced when a child resides on campus while attending college. We confirm the child's attendance at college is a change in circumstance warranting review of the child support amount. However, there is no presumption that a child's required financial support lessens because he or she attends college. As each case must turn on its own facts, courts faced with the question of setting child support for college students living away from home must assess all applicable facts and circumstances, weighing the factors set forth in N.J.S.A. 2A:34-23a. Resort to the Child Support Guidelines (Guidelines), R. 5:6A, to make support calculations for college students living away from home is error. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2513-14 (2012). Here, the Family Part judge fixed support for the parties' college-aged children through the Guidelines' mechanism. Accordingly, we reverse and remand.
On August 17, 2001, plaintiff Kathleen A. Jacoby and defendant Frank C. Jacoby divorced after almost fifteen years of marriage. They resolved all issues collateral to the dissolution of their marriage, as reflected in a stipulation of settlement incorporated into the Amended Dual Final Judgment of Divorce.
Among the consensual provisions was an agreement to share joint legal custody of their two children, who principally resided with plaintiff. The parties also agreed defendant's only child support obligation would be his payment of the property tax and homeowner's insurance associated with the former marital home occupied by plaintiff and the children. Finally, the parties recognized the "children's right to attend college[,]" and, when the time arose, agreed to share that financial responsibility based on their respective incomes, after the exhaustion of available grants, loans, scholarships, and other financial aid.
On February 10, 2005, the parties modified defendant's child support obligation. Using plaintiff's yearly income of $43,240 and defendant's yearly income of $71,011, they calculated defendant's weekly child support obligation under the Guidelines as $215.
In the fall of 2007, the parties' older child matriculated at a college in West Virginia. Defendant moved to modify child support, arguing his obligation should be reduced because the child no longer resided in plaintiff's home. On November 21, 2007, the court granted the request and recomputed child support by employing a formula. Starting with the Guidelines, the judge first calculated the support for two, then one child. Taking the difference in these two sums, the judge determined 38% of the difference, and 25% of the calculated remainder. These two sums were added and set as the support necessary for the older child.*fn2 The total child support award was $170 per week for both children. Defendant was also ordered to pay $2,943.48 toward the older child's annual college costs.
In the fall of 2009, the younger child began attending college in Kentucky. On January 11, 2011, defendant moved for a reduction in child support, arguing his income had fallen from $75,000 to $50,000 per year. Also, he asserted the older child's expected May graduation date warranted an order of emancipation.*fn3 Finally, defendant requested recalculation of his child support obligation for the younger child because the child was away "at school . . . in excess of [e]ighty-[f]ive . . . percent of the year." Defendant asserted if the court used his 2011 income and applied the November 21, 2007 "established formula," his weekly child support obligation for the two children would be $99.
Plaintiff opposed defendant's request and filed a cross-motion seeking to increase defendant's weekly child support obligation to $258 and ordering payment of his share of the children's net college costs. Plaintiff stated the older child would not graduate until December 2011 or May 2012. She produced proof of her current $47,000 annual salary and argued defendant's claim of decreased income was unsupported.
A different Family Part judge assigned to the motion denied defendant's request to reduce his weekly child support obligation merely because the children lived away from home while attending college, but accepted his representation of changed financial circumstances. Utilizing the parties' current incomes, the judge recalculated child support under the Guidelines, and fixed defendant's obligation at $179 per week. Thereafter, at defendant's request, the ...