FORRESTALL v. FORRESTALL, 389 N.J. Super. 1 (App. Div. 2006), A-2337-05T1, November 28, 2006:

The Child Support Guidelines were adopted in response to a federal mandate and were intended to complement N.J.S.A. 2A:34-23(a). See Hoefers v. Jones, 288 N.J. Super. 590, 615 n.7 (Ch. Div. 1994), aff’d o.b., 288 N.J. Super. 478 (App. Div. 1996). As a general rule, the guidelines are now used to compute a support obligation when the combined parental net weekly income does not exceed $2900. N.J.S.A. 2A:34-23(a) provides the criteria for fixing support when the guidelines do not apply.

The guidelines use economic data to determine the percentage of income available for the support of children of intact families. Caplan v. Caplan, 182 N.J. 250, 264 (2005). The combined income is utilized to determine the amount of the support, which is then allocated between the parents “in proportion to their relative incomes . . . .” Ibid.

“The procedure for using the charts is now set forth in a series of eight appendices . . . .” 2 Gary N. Skoloff & Laurence J. Cutler, New Jersey Family Law Practice, § 5.4C(1) at p. 5:118 (12th ed. 2006). “The guidelines contained in Appendix IX of the Rules of Court consist of narrative considerations and charts for the determination of the amount or percentage of the support for the children for which each parent is responsible.” Ibid.

Appendix IX-B deals with the sources of income that should be attributable to a parent when computing that parent’s support obligation. It contains a non-exclusive list of income sources, such as “compensation for services, including wages, fees, tips, and commissions” and “gains derived from dealings in property,” appropriate for use in computing the income available for support. Pressler, supra, Appendix IX-B to R. 5:6A at p. 2242. The list also includes “annuities or an interest in a trust” and “profit sharing plans.” Id. at 2242-43. This list would encompass an employer’s contribution to a 401(k) plan as income because the contribution is “compensation for services,” and the increase in the plan corpus would constitute both “an interest in a trust” and “gains derived from dealings in property.” The list of income sources, however, is subject to the narrative that proceeds it. Specifically, the guidelines limit gross income to “all earned and unearned income that is recurring or will increase the income available to the recipient over an extended period of time. When determining whether an income source should be included in the child support guidelines calculation, the court should consider if it would have been available to pay expenses related to the child if the family would have remained intact.” [Id. at 2242.]

The philosophy of the guidelines is to allow the children “to share in the current income of both parents” and to prevent them from becoming “the economic victims of divorce.” Pressler, supra, Appendix IX-A to R. 5:6A P1 at 2217. They should “be afforded the same opportunities available to children in intact families with parents of similar financial means as their own parents.” Ibid. The guidelines were never intended to allow children of separated parents a greater share of the combined parental income than would have been utilized for them had there been no separation.

However, the funds received by a defendant and voluntarily contributed to a retirement plan are not insulated from consideration as income on which the support obligation is based. Defendant’s choice to place money into a retirement fund does not absolve defendant of the obligation to utilize that income for defendant’s children.

Once the funds are placed into a 401(k) account, however, they do not produce income to which defendant has ordinary access. The children of an intact family would not expect to benefit from either the employer’s contribution or the accretion to the retirement fund. The assets in a 401(k) are neither a source of income nor . . . an asset that is in and of itself available for defendant; and is not “available” within the meaning of the guidelines.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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