Ordukaya v. Brown, 357 N.J. Super. 231 (App. Div. 2003) (A-6908-00T1; January 31, 2003):

Rule 5:6A provides:

The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.

A completed child support guidelines worksheet in the form prescribed in Appendix IX of these Rules shall be filed with any order or judgment that includes child support that is submitted for the approval of the court. If a proposed child support award differs from the award calculated under the child support guidelines, the worksheet shall state the reason for the deviation and the amount of the award calculated under the child support guidelines.

[R. 5:6A.]

Appendix IX-A(2) provides that the guidelines “must be used as a rebuttable presumption to establish and modify all child support orders” in both contested and uncontested matters. Pressler, supra, Appendix IX-A, “Considerations In Use of Child Support Guidelines,” subpart 2. A rebuttable presumption means that:

an award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines- based award inappropriate in a specific case. The guidelines may be disregarded or a guidelines-based award adjusted if a party shows, and the court finds, that such action is appropriate due to conflict with one of the factors set forth in sections 4, 7, 10, 13, 14, 15, or 20 of Appendix IX-A, or due to the fact that an injustice would result due to the application of the guidelines in a specific case. The determination of whether good cause exists to disregard or adjust a guidelines-based award in a particular case shall be decided by the court.

[Id.]

Subpart 21 of Appendix IX-A provides that “[i]n all cases, the decision to deviate from the guidelines shall be based on the best interests of the child. All deviations from the guidelines- based award and the amount of the guidelines-based award must be stated in writing in the support order or on the guidelines worksheet.” Pressler, supra, Appendix IX-A, “Considerations In The Use Of Child Support Guidelines,” subpart 21; see Capaccio v. Capaccio, 321 N.J. Super. 46, 56-57 (App. Div. 1999) (upholding child support award calculated under guidelines despite that the award disregarded the federal poverty guidelines). Most significantly, subpart 22 of Appendix IX-A requires:

In accordance with R. 5:6A, if a child support amount in a stipulated or consent agreement differs from an award calculated using the support guidelines, the parties or their representatives shall state on a child support guidelines worksheet: (a) the amount of support that would have been awarded if calculated using the guidelines and (b) the reason that the stipulated amount differs from the guidelines-based award.

The Court’s mandate requiring this statement insures that the guidelines become the starting point for any analysis of child support. Deviations must be accounted for, a failing here requiring further action.

In Winterberg v. Lupo, 300 N.J. Super. 125, 132 (App. Div. 1997) the court said:

the judge did not make specific findings that would explain why the Guidelines were disregarded. See R. 5:6A. Nor did he consider and apply N.J.S.A. 2A:34-23. The bare statement in paragraph 5 of the order that “plaintiff’s austere budget and her obligation to pay substantial transportation expenses” warranted a deviation from the Guidelines is conclusory. The motion judge was required to resolve the gross and net income dispute, determine the appropriate support level based on the Guidelines and the statutory factors enumerated in N.J.S.A. 2A:34-23, and then, based on those findings, explain why the order deviated from the Guidelines. Even if the judge had good reasons for exercising his discretion in deviating from the Guidelines, we have no indication of what those reasons were. This is an unacceptable practice.

[Id.]

While Winterberg was a contested child support case, other courts have mandated such findings especially where a custodial parent appears to have “waived” or compromised child support in the agreement between the parties.

In Monmouth County Division of Social Services for D.M. v. G.D.M., 308 N.J. Super. 83, 95 (Ch. Div. 1997), the parties entered into a consent order relieving a father of child support in exchange for termination of his parental rights. The Family Part judge vacated the order and said:

It is a fundamental principal of the Family Division that the right to child support belongs to the child or children, not to the custodial parent. Kopack, supra, at 117, 68 A.2d 484, aff’d, 4 N.J. 327, 72 A.2d 869 (1950); Martinetti, supra, at 512, 619 A.2d 599. Therefore, the actions and circumstances of the child, and not those of the parent, are to be evaluated in determining support obligations. Ibid. The right to collect arrears for child-related expenses may belong to the custodial parent. Stanton v. Stanton, 421 U.S. 7, 12, 95 S. Ct. 1373, 1376, 43 L. Ed.2d 688 (1975) (citing Anderson v. Anderson, 110 Utah 300, 306, 172 P.2d 132, 135 (1946)). However, it is clear that present child support rights lie exclusively with the child for whom they are ordered. The conscience of equity will not permit the present needs of children to be limited by the agreements of their parents. Wertlake v. Wertlake, 127 N.J.Super. 595, 318 A.2d 446 (Ch. Div.1974), rev’d on other grounds 137 N.J.Super. 476, 349 A.2d 552 (App. Div. 1975). As noted above, the obligation of all parents to provide, to the degree possible, for their children is fundamental, and can not therefore be destroyed by the errant, capricious, or uninformed actions of the other parent.

Although “people have the right to make bad deals,” such “bad deals” do not extend to child support. The “deal” was not simply an agreement affecting two independent parties. The most critical issue is the children’s interests. Where such interests are compromised, courts must insure that they are protected. Cf. Bengis v. Bengis, 227 N.J. Super. 351 (App. Div. 1987) (permitting waiver of child support by a natural parent where the obligation may be imposed on a responsible third-party). No such inquiry was made here and a remand is mandated.

See also: The Revised Child Support Guidelines – When is Deviation Appropriate, by Charles F. Vuotto, Jr., Esq. and Risa A. Kleiner, Esq.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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