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David L. Johnson v. Patricia M. Johnson


July 19, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1177-94-K.

Per curiam.


Submitted June 20, 2012

Before Judges A. A. Rodriguez and Reisner.

Appellant, David L. Johnson, challenges the August 5, 2011, Family Part post-divorce judgment order. We reverse and remand this matter to the trial court.

David and respondent, Patricia M. Johnson, were divorced on March 21, 1994, after five years of marriage. The parties entered into a Property Settlement Agreement (PSA), which was incorporated into the dual judgment of divorce. Two children were born of the marriage, ages twenty and nineteen, at the time of the entry of the order under review. The parties were awarded joint legal custody of the children, with Patricia enjoying sole residential custody, and David liberal visitation. David was ordered to pay $180 per week as child support for both children. David has remarried and has two more children, now ages ten and seventeen.

More than seven years after the judgment was entered, David moved: (a) for recalculation of support based upon the children's enrollment in college; (b) to require Patricia to provide the oldest child's college transcripts; (c) to require Patricia to provide proof of the younger child's college enrollment; and (d) for counsel fees and costs.

Patricia cross-moved to require David to: 1) continue to pay child support in a reduced amount; 2) pay a percentage of the children's college costs; 3) reimburse Patricia for books and transportation fees. She also sought counsel fees and costs.

The judge found that David has "shown prima facie evidence of a change in circumstances." "Based on the financial information provided by both parties," the judge recalculated David's child support obligation by reducing it to $139 per week for both children. The judge denied the request that Patricia provide college transcripts for the older child, but granted the request for proof of the youngest child's enrollment in college or trade school. On the cross-motion, the judge granted Patricia's request that David pay thirty-eight percent of all out-of-pocket college costs and books after all grants, loans and scholarships are applied. Finally, the judge denied both parties' request for counsel fees.

In making the child support determination, the judge expressly acknowledged relying on the Child Support Guidelines.

On appeal, David contends that the judge erred in ordering him to pay child support for his children, who are now over the age of eighteen. Moreover, Patricia failed to provide information necessary to determine support pursuant to statute; and reduction in child support should have been retroactive to the filing date of David's application. David also contends that the judge erred in ordering him to pay college costs, as a blanket percentage contribution towards college expenses contrary to child support guidelines. Moreover, he argues that, "a remand for a plenary hearing would be inappropriate as there are no material facts to dispute."

In a very recent decision, this court addressed the core issue in this case, i.e., "whether child support should be reduced when a child resides on campus while attending college." Jacoby v. Jacoby, ___ N.J. Super. ___, ___ (App. Div. July 11, 2012) (slip op. at 1). We held that:

[c]hild's attendance at college is a change in circumstances 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). [Ibid. (slip op. at 1-2].

We are persuaded by the holding of the Jacoby opinion.

Accordingly, we reverse the August 5, 2011 order in its entirety and remand to the Family Part for reconsideration of the issues in dispute in this matter in light of the Jacoby holding. We do not retain jurisdiction.

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