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That the parties did not utilize the guidelines in establishing the support obligation in a prior settlement agreement does not absolve the judge from his/her legal obligation to make a guidelines calculation as the starting point for determining the parties’ respective support obligations upon the finding of changed circumstances

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October 5, 2010 at 2:20 pm


Law Lessons from WILLIAM O’BRIEN V. NANCY O’BRIEN, App. Div., A-0711-09T1, October 5, 2010:

When considering a motion to reduce a child support obligation, the movant bears the burden of establishing a change of circumstances justifying a modification. Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. l990), certif. denied, 126 N.J. 321 (l99l). “Courts have consistently rejected requests for modification based on circumstances which are only temporary . . . .” Lepis v. Lepis, 83 N.J. 139, 151 (l980).

There is no bright-line rule for determining when changed circumstances have lasted long enough to justify modification of a support obligation and leaving such finding to the discretion of Family Part judges “based upon their experience as applied to all the relevant circumstances presented . . . .”. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

The New Jersey Court Rules require that “[t]he 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.” R. 5:6A. The rule applies “not only to motions initially to fix child support but also to motions to modify child support.” Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 5:6A (2011). See also Italiano v. Rudkin, 294 N.J. Super. 502, 506 (App. Div. l996).

Furthermore, the “mandatory nature of the Guidelines require their use even where child support is fixed by the parties by agreement.” Pressler & Verniero, supra, comment l.2 on R. 5:6A. See also Chobot v. Chobot, 224 N.J. Super. 648, 654 (App. Div. l988). The parties may deviate from the guidelines, but they must still calculate the amount of support under the guidelines and explain why their agreement differs. Pressler & Verniero, supra, comment 1.2 on R. 5:6A. See also Ordukaya v. Brown, 357 N.J. Super. 231, 240 (App. Div. 2003).

It is also within the sound discretion of the court to modify or disregard the guidelines for good cause, but the reasons for doing so and the amount of the guidelines-based award (before any adjustment) must be stated in writing on the guidelines worksheet or in the support order. Pressler & Verniero, supra, Appendix IX-A(3), (21) to R. 5:6A at 2429, 2449. See also Ordukaya, supra, 357 N.J. Super. at 239 (“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.”).

That the parties did not utilize the guidelines in establishing the support obligation in a prior settlement agreement does not absolve the judge from his/her legal obligation to make a guidelines calculation as the starting point for determining the parties’ respective support obligations upon the finding of changed circumstances.

“[C]omplete financial information of both parents [is] necessary for any order of child support.” See Zazzo, supra, 245 N.J. Super. at 129.

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.

[Winterberg v. Lupo, 300 N.J. Super. 125, 132 (App. Div. l997).]






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