Chobot v. Chobot

• Decision Date: 02 May 1988
• Citation: 224 N.J.Super. 648,541 A.2d 251
• Parties: Robert CHOBOT, Plaintiff-Appellant, Cross-Respondent, v. Olive CHOBOT, Defendant-Respondent, Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 648

224 N.J.Super. 648

541 A.2d 251

Robert CHOBOT, Plaintiff-Appellant, Cross-Respondent, v. Olive CHOBOT, Defendant-Respondent, Cross-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 29, 1988.

Decided May 2, 1988.

Gruber & Associates, Hopatcong, for plaintiff-appellant, cross-respondent (Mark Gruber, on the brief).

Legal Aid Soc. of Morris County, for defendant-respondent, cross-appellant (Robin C. Kiel, Dover, on the brief).

Before Judges BAIME and ASHBEY.

The opinion of the court was delivered by

ASHBEY, J.A.D.

The novel issues raised by this appeal are the applicability of child support guidelines, R. 5:6A, to motions to increase child support and the computation of available parental income under R. 5:6A. We today hold that the child support guidelines do apply to motions to increase child support and that payments to amortize debt created by consumer spending, life insurance premiums or non-mandatory retirement contributions are not deductible when calculating available parental income. ¹

By judgment dated June 5, 1984, plaintiff husband and defendant wife were divorced. The final judgment incorporated a property settlement agreement signed by plaintiff on February 10, 1984 and by defendant on December 22, 1983. On January 9, 1987, defendant filed a motion for an increase in child support. Following oral argument the Family Part judge ordered that child support for the parties' four children be increased from $70 to $105 per week; that plaintiff be responsible for one-half of all uncovered medical expenses of the children; that support payments be made through the Morris County Probation Department; that support arrears be fixed at $1,053.32 as of March 7, 1987; that plaintiff pay $20 per week toward the arrears and that if plaintiff were to miss two consecutive payments, a wage execution would issue. Plaintiff moved for reconsideration which was denied.

Plaintiff appeals from the ensuing orders of March 16, 1987 and May 11, 1987, and by leave granted defendant cross-appeals from the amount of support ordered.

On appeal plaintiff contends that,

Point I.

The court's modification of the property settlement agreement was not supported by evidence of a substantial change of circumstances.

Point II.

The child support guidelines enacted by court rule were improperly applied retroactively.

In her cross-appeal defendant contends that,

The trial judge abused his discretion by considering plaintiff's consumer debts, pension fund payments, retirement fund and life insurance expenses when computing child support payments.

The record reveals that the parties were married on September 28, 1969. Four children were born of the marriage: Theresa, born April 24, 1970; Sharon, born July 21, 1972; Mandy, born January 4, 1976, and Robert, born September 9, 1978. When the parties separated in 1982, plaintiff agreed to pay $70 per week in child support for the children, who remained in defendant's custody. On December 22, 1983, defendant, without advice of counsel, signed a divorce agreement which had been prepared by plaintiff's attorney. Plaintiff was then working in the maintenance department at Greystone State Hospital, where he had been employed for nine years. Defendant was then only contributing $300 per month for rent and utilities for herself and the children. Transportation was provided her by her future husband. Defendant and her second husband were married. They separated in the summer of 1986. ² At the time of the hearing defendant's second husband was paying $50 per week voluntarily to her for support of their child. In November of 1986, plaintiff stopped paying child support to defendant.

From the parties' submissions, the judge found that defendant received $200.28 per week net from her full time employment, $70 per week from plaintiff and $50 per week from her second husband, giving her $1,379.20 monthly available income for one adult and five children. Defendant also received $204 per month in foodstamps. ³ Her monthly expenses totalled $1,883.55, leaving her with a monthly shortfall of $504.35. She certified that she owed utility bills of over $600, and rent of over $200.

Plaintiff, who lived with his second wife, their daughter and his step-daughter, was still employed full time by Greystone State Hospital and part time (20 hours per week) by Quick Check, earning $21,573.76 a year gross. Plaintiff deducted a total of $4,451.30 in taxes from his gross income. His monthly income after taxes was $1,462.87. Additionally, plaintiff listed $4,070.82 in annual after-tax deductions, representing dental insurance ($258.18), medical insurance ($298), life insurance ($110), pension ($575), wage executions ($1,825), retirement fund payments ($894.14) and union dues ($110.50) leaving him with a net earned monthly income according to his calculations of $1,087.64. He asserted additional living expenses, including a $203.02 car payment, of $1,472.77 monthly.

Plaintiff certified that he had stopped paying support because his second wife had been ill. He said that in November of 1986 his wife had begun a part-time job but was injured in a car accident. He also claimed that his poor health caused him to cut down the hours on his part-time job. In his case information statement plaintiff said that he owed nine creditors $11,443 and that his wife owed 25 creditors $12,674, of which $7,014 was for her car. At oral argument plaintiff admitted that over $2,000 of debt was for various consumer goods purchased at Bamberger's and J.C. Penney's.

The judge computed plaintiff's obligation in accordance with the child support guidelines as set forth in R. 5:6A as follows:

                Plaintiff's net weekly income  $252.94 4  (56%)
                Defendant's net weekly income   200.28        (44%)
                                               -------------
                Total                           453.22        (100%)
                Weekly child support           $188.00
                Plaintiff's contribution        105.00
                Defendant's contribution         83.00
                

On appeal plaintiff first contends that defendant was not entitled to an increase because she did not establish a change of circumstances. He relies upon the judge's statement in his statement of reasons that, "the file does not contain any Preliminary Disclosure Statements or other financial information that would allow a comparative analysis of the income earned by the parties, or either of them, when they were divorced or their present earnings." Plaintiff further asserts that, despite the fact that he did not request one, he was entitled to a hearing to disclose whether plaintiff transferred assets to defendant which she could use to support the children ⁵ and to determine the needs of the children as well as the parties' abilities to pay.

We find this argument unpersuasive. N.J.S.A. 2A:34-23. Under Lepis v. Lepis, 83 N.J. 139, 145-146, 416 A.2d 45 (1980), changed circumstances may include (1) an increase in the cost of living, (2) a change in the contributing spouse's income, (3) subsequent illness or disability, (4) the non-contributing spouse's loss of a house or apartment, (5) the non-contributing spouse's cohabitation with another, (6) subsequent employment of the non-contributing spouse, (7) changes in federal income tax law, and (8) the maturation of the children. Id. at 151, 416 A.2d 45 (citations omitted). Defendant's submissions established the maturation of the children (aged 14, 12, 8 and 5 at the time of divorce and 17, 15, 11 and 8 at the time of the hearing) and her $400 a month loss of outside contribution to her fixed expenses. She also asserted that she had an increased transportation expense. ⁶ None of these facts were disputed by plaintiff. ⁷ He thus failed to demonstrate the existence of a genuine issue as to a material fact justifying a hearing. Id. at 159, 416 A.2d 45; Shaw v. Shaw, 138 N.J.Super. 436, 440, 351 A.2d 374 (App.Div.1976).

Plaintiff also asserts that the trial court's application of the child support guidelines imposed a manifest injustice upon him because his agreement was based upon the law as it existed at the time of his divorce.

R. 5:6A provides:

The guidelines set forth in Appendix IX of these Rules shall be applied when an application for support, made pursuant to any section of these Rules, 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.

We are satisfied that the court properly reviewed the current circumstances of the parties according to the guidelines, despite a prior agreement. Plaintiff had no vested contract right which might defeat his obligation to meet the needs of his dependents. See Lepis v. Lepis, supra, 83 N.J. at 145-146, 416 A.2d 45. ⁸ The Family Part judge's conclusion that there was a change of circumstances concerning the needs of the four children was supported by the record and the child support guidelines were relevant to determine plaintiff's financial obligation.

We agree with defendant on the cross-appeal, however, that, to the extent the trial court reduced plaintiff's available annual income by $3,404, representing life insurance, unsubstantiated pension and retirement contributions and wage garnishments, the court erred. ⁹

On this issue the trial judge issued a statement of reasons. He said,

In his Case Information Statement the plaintiff deducts the sum of $1,825.00 per year for wage executions before arriving at a net monthly income of $1,087.64 or $252.94 per week. While there may be some dispute with respect to whether or not the debts set forth by the plaintiff are legitimate...