Post by Jim on May 26, 2009 11:33:14 GMT -5
Law Lessons from Spiegler v. Spiegler, App. Div. (A-4028-07T2; Decided: March 3, 2009):
Additional children and inherited funds warrant a modification of a child support.
Changed circumstances warrant a modification of a child support award. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The birth of a child with a second spouse constitutes a change in circumstances warranting judicial review of the existing support award. See Martinez v. Martinez, 282 N.J. Super. 332, 341-42 (Ch. Div. 1995). An increase in income constituted another changed circumstance.
If the income of the parties falls within the guidelines, the court must referred to the guidelines in modifying the child support award. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2334 (2009) (providing that the guidelines apply to all actions to fix or modify child support applications except where the obligor falls within U.S. poverty guidelines or the parents’ combined income exceeds $187,200).
When modifying support orders, the court must apply the guidelines, which “may be modified or disregarded by the court only where good cause is shown.” R. 5:6A. Support payments that are fixed or modified in accordance with the guidelines are presumptively correct, although their application is subject to a number of factors. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2315 (2009). Where injustice would result from their application in a specific case or where good cause exists to disregard them, the guidelines do not apply. Ibid. “The guidelines should not be altered unless has rebutted the presumption ‘that an award based on the guidelines [is] the correct amount of child support, [or has established] that injustice would result’ from their strict application.” Lozner v. Lozner, 388 N.J. Super. 471, 482 (App. Div. 2006) (alterations in original) (quoting Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2237 (2007)).
When a divorced payor parent remarries and has additional children, the court considers the addition of those children when adjusting the payor’s support obligations. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix 1X-A to R. 5:6A at 2322-23 (2009). In calculating such an adjustment, the court considers the income of the payor’s second spouse. Ibid. However, the guidelines expressly provide that the income of other household members including current spouses, who are not legally responsible for supporting the recipient’s child, is excluded from the calculation of the payor’s income. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A, at 2342-43, 2360-61 (2009).
Thus, the court should include the income of a payor’s second spouse when calculating the deduction for the child with the second spouse. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2322-23 (2009). However, the second spouse’s income is excluded when calculating income under the guideline formula.
As the guidelines implicitly recognize, including the income of the new spouse in the guideline calculation would effectively result in a redistribution of the payor’s new spouse’s income to the payor’s former family. The financial status of a payor’s second spouse does not inure to the benefit of the recipient or the recipient’s children except to the extent the guidelines appropriately take into account the second spouse’s income when computing a payor’s other dependent deduction for a child.
Where a payor had inherited funds and used that inheritance pay off his mortgage and applied the balance toward a vehicle, the court may impute interest on the total amount of the inheritance and include that interest as part of payor’s income. The imputation of interest is correct since interest is imputed to an inheritance when it is placed in a non income producing asset. See Connell v. Connell, 313 N.J. Super. 426 (App. Div. 1988) (imputing income to non income producing real estate purchased by the father with his inheritance when calculating his child support obligation); see also Stiffler v. Stiffler, 304 N.J. Super. 96 (Ch. Div. 1997) (addressing this issue in the context of fixing an alimony obligation).
In order for the court to impute income, the obligor must be “without just cause, voluntarily underemployed.” Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998).
[T]he obligor must establish that he or she is earning at capacity, i.e., not underemployed, in order to avoid imputation. While Dorfman makes it clear that imputation is improper absent a finding that the obligor is failing to earn at capacity (i.e., unless the party is intentionally unemployed or underemployed), it does not hold that the supported spouse must establish that underemployment or that the obligor prevails by simply establishing that he or she has found a job. To the contrary, the court found the obligor established a prima facie case of a substantial change in circumstance by evidence of unsuccessful efforts to find work at comparable pay, followed by acceptance of work in the same field at reduced pay. An obligor who fails to present similarly persuasive evidence of earnings consistent with capacity faces imputation based on a realistic assessment of capacity to earn. [Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004)
Additional children and inherited funds warrant a modification of a child support.
Changed circumstances warrant a modification of a child support award. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The birth of a child with a second spouse constitutes a change in circumstances warranting judicial review of the existing support award. See Martinez v. Martinez, 282 N.J. Super. 332, 341-42 (Ch. Div. 1995). An increase in income constituted another changed circumstance.
If the income of the parties falls within the guidelines, the court must referred to the guidelines in modifying the child support award. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2334 (2009) (providing that the guidelines apply to all actions to fix or modify child support applications except where the obligor falls within U.S. poverty guidelines or the parents’ combined income exceeds $187,200).
When modifying support orders, the court must apply the guidelines, which “may be modified or disregarded by the court only where good cause is shown.” R. 5:6A. Support payments that are fixed or modified in accordance with the guidelines are presumptively correct, although their application is subject to a number of factors. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2315 (2009). Where injustice would result from their application in a specific case or where good cause exists to disregard them, the guidelines do not apply. Ibid. “The guidelines should not be altered unless has rebutted the presumption ‘that an award based on the guidelines [is] the correct amount of child support, [or has established] that injustice would result’ from their strict application.” Lozner v. Lozner, 388 N.J. Super. 471, 482 (App. Div. 2006) (alterations in original) (quoting Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2237 (2007)).
When a divorced payor parent remarries and has additional children, the court considers the addition of those children when adjusting the payor’s support obligations. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix 1X-A to R. 5:6A at 2322-23 (2009). In calculating such an adjustment, the court considers the income of the payor’s second spouse. Ibid. However, the guidelines expressly provide that the income of other household members including current spouses, who are not legally responsible for supporting the recipient’s child, is excluded from the calculation of the payor’s income. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A, at 2342-43, 2360-61 (2009).
Thus, the court should include the income of a payor’s second spouse when calculating the deduction for the child with the second spouse. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2322-23 (2009). However, the second spouse’s income is excluded when calculating income under the guideline formula.
As the guidelines implicitly recognize, including the income of the new spouse in the guideline calculation would effectively result in a redistribution of the payor’s new spouse’s income to the payor’s former family. The financial status of a payor’s second spouse does not inure to the benefit of the recipient or the recipient’s children except to the extent the guidelines appropriately take into account the second spouse’s income when computing a payor’s other dependent deduction for a child.
Where a payor had inherited funds and used that inheritance pay off his mortgage and applied the balance toward a vehicle, the court may impute interest on the total amount of the inheritance and include that interest as part of payor’s income. The imputation of interest is correct since interest is imputed to an inheritance when it is placed in a non income producing asset. See Connell v. Connell, 313 N.J. Super. 426 (App. Div. 1988) (imputing income to non income producing real estate purchased by the father with his inheritance when calculating his child support obligation); see also Stiffler v. Stiffler, 304 N.J. Super. 96 (Ch. Div. 1997) (addressing this issue in the context of fixing an alimony obligation).
In order for the court to impute income, the obligor must be “without just cause, voluntarily underemployed.” Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998).
[T]he obligor must establish that he or she is earning at capacity, i.e., not underemployed, in order to avoid imputation. While Dorfman makes it clear that imputation is improper absent a finding that the obligor is failing to earn at capacity (i.e., unless the party is intentionally unemployed or underemployed), it does not hold that the supported spouse must establish that underemployment or that the obligor prevails by simply establishing that he or she has found a job. To the contrary, the court found the obligor established a prima facie case of a substantial change in circumstance by evidence of unsuccessful efforts to find work at comparable pay, followed by acceptance of work in the same field at reduced pay. An obligor who fails to present similarly persuasive evidence of earnings consistent with capacity faces imputation based on a realistic assessment of capacity to earn. [Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004)
