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Case Law Review for the Week of May 19, 2014

Barion v. Nolfi, Appellate Division, Unreported Decision: In this Appellate Division case, the Court reviewed the determination of the trial court as it pertained to retroactive modification of child support. The trial court granted the Plaintiff's request for retroactive modification of child support based upon the significant increase in the Defendant's income which went unreported despite the parties' agreement to provide yearly proof of earnings. The Appellate Division determined that the trial court's decision deserved deference as to the amount of back child support that was owed and the payment schedule, although the Appellate Division did comment that the trial court could have done a better job of specifically addressing the relevant statutory factors in full detail. The Appellate Division reviewed the applicable law with regards to setting a child support obligation when the parties' incomes exceed the maximum amounts covered by the child support guidelines, providing the following synopsis of the applicable case law:

In Winterberg v. Lupo, 300 N.J. Super. 125 (App. Div. 1997), the court explained that it was obligated to find facts under Rule 1:7-4; to provide specific reasons for deviating from the Child Support Guidelines set forth in Rule 5:6A and Current Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX to R. 5:6A; and to analyze and make specific findings with regard to factors set forth in N.J.S.A. 2A:34-23(a) when either deviating from the Guidelines or setting any additional support where the combined net income exceeded the maximum Guideline amount in Appendix IX-F...In Caplan v. Caplan, 182 N.J. 250 (2005) [the applicable procedure was set forth as follows:] [F]irst, determine the reasonable needs of the children; second, before allocating the appropriate share between the parties, consider . . . the ability of the parties to earn income; third, upon determining the respective percentages that each party's net . . . income bears to the total of their combined income, apply those percentages to determine each party's share of the maximum basic child support guideline award for . . . [the] children; [and] fourth, subtract the maximum basic child support from the court- determined amount of the reasonable needs of the children to determine the remaining support to be allocated between the parties...In high-earner contexts, where parental ability to meet the children's basic needs is not an issue, "the dominant guideline for consideration is the reasonable needs of the children, which must be addressed in the context of the standard of living of the parties." Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002); Strahan v. Strahan, 402 N.J. Super. 298, 307 (App. Div. 2008). Children from higher earning households "are entitled to not only bare necessities, but a supporting parent has the obligation to share with his children the benefit of his financial achievement." Isaacson, supra, 348 N.J. Super. at 580.

George v. Kutalk, Appellate Division, Unreported Decision (5/23/14): In this case, the Appellate Division remanded the matter to the trial court to determine whether the noncustodial parent would have an obligation to pay a portion of the private high school tuition for one of the parties' children where the MSA was silent as to the issue, despite making specific reference to contributions towards college expenses and payment of the parties' older child's private high school tuition. The Court specifically noted that the trial court should consider the factors as set forth in Hoefers v. Jones, 288 N.J. Super. 590 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478 (App. Div. 1996):

(1) Ability of non-custodial parent to pay.

(2) Past attendance of one or both parents at that or a similar private school.

(3) Whether children were attending private school pre or post divorce.

(4) Prior agreement of non-custodial parent to pay, to send children to private school.

(5) Religious background of the parties, their children.

(6) Are special educational, psychological and/or special needs of child met, advanced by such private schooling?

(7) Generally, is it in the child's best interest to attend, or to continue to attend, private school (is the academic environment in child's best interest?).

(8) Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.

(9) Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?

(10) Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?

(11) Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?

(12) Lack of present, past non-custodial parental involvement in children's education.

(13) Degree of involvement of custodial parent in children's education (is it extensive?).

(14) Is residential custodial parent's views, desires consistent with past practices regarding private school education?

Martin v. Martin, Appellate Division, Unreported Decision, May 23, 2014: In this case, the Appellate Division reversed and remanded the trial court's denial of a request for contribution towards college expenses, as the Appellate Division found error in the trial court's determination that the fact that the request for contribution was made subsequent to costs being incurring was fatal to the request. Instead, the Appellate Division found that the timing of the request is one factor that must be considered and that all of the Newburgh factors must be considered when rendering a decision in a request for contribution towards college expenses.

Contact a Divorce Attorney at Miller & Gaudio to discuss the specifics of your case and to understand your rights and obligations.

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