Martinez v. Martinez

• Decision Date: 21 February 1995
• Parties: Leonard MARTINEZ, Plaintiff, v. Anna MARTINEZ, Defendant.
• Court: New Jersey Superior Court

Page 332

282 N.J.Super. 332

660 A.2d 13

Leonard MARTINEZ, Plaintiff, v. Anna MARTINEZ, Defendant.

Superior Court of New Jersey, Chancery Division Gloucester County.

Decided Feb. 21, 1995.

[660 A.2d 15] Leonard Martinez, plaintiff, pro se.

Scott C. Bushelli, Camden, for defendant (Dughi and Hewit, attorneys).

OPINION

HERMAN, J.S.C.

In this extended post-judgment application, defendant, Leonard Martinez, an employee of the United States Air Force, seeks reduction of his child support obligation currently enforced by wage garnishment. He asserts he is entitled to such relief because he has demonstrated changed circumstances as father of a recently-born child of his current marriage entitled to his support too, whose frail health has caused unanticipated, substantial, ongoing outlay of funds. Further, plaintiff asserts that since 15 U.S.C.A. § 1673 compels an automatic garnishment reduction from sixty percent to fifty percent of his wages to afford a measure of support for his new family, ¹ as a matter of law this court must adjust his current obligation, and cannot impose an order that exceeds that new, lower percentage, even if his child support as calculated pursuant to New Jersey Guidelines for his prior two children so warrants.

I.

Plaintiff/father and defendant/mother were divorced in 1993. She continues to reside in New Jersey. He is in Delaware; he has remarried. Defendant is the residential custodial parent of their two children, a daughter age 11, a son age 9. Previous orders set weekly child support at $150, $40 for day care, and $10 on arrears.

On August 24, 1994, the court held a probation review of plaintiff's account. At that hearing, plaintiff also sought a support decrease because of the August 1 birth of his son. Advised his request would be considered upon the filing of motion and supporting certification, he immediately did so. She responded. The parties appeared on September 30, 1994. Plaintiff's net income was computed at $460 per week. The court, as required, used all plaintiff's income sources: his monthly wages, which are taxed; his annual allotment adjustments, BAQ (Base Allowance for Quarters), BAS (Basic Allowance Assistance) and VHA (Variable Housing Allowance), which are not taxed. For garnishment purposes, allotment payments are not includable as part of "disposable income." ²

Determining a modification was warranted, the court entered an interim order reducing plaintiff's weekly support obligation by $30, decreased his day care contribution by $12.50, maintained the $10 per week arrearage payment, thereby adjusting the prior orders to $157.50. Following the September motion, the Air Force modified the original percentage of garnishment from sixty percent to fifty-five percent (50% plus 5% since arrears also existed; see n. 1). Calculating plaintiff's disposable income at $1212.04, the Air Force commenced to withhold $682.50 per month from his base net wage leaving a shortfall of $12.61 per week, a sum not collected by garnishment since that sum exceeded the fifty-five percent federal calculation. Discussion as to how and if that deficiency could be collected by other legal process was held in abeyance to allow the parties an opportunity for further input. Thereafter, defendant obtained counsel, petitioned for accelerated collection of arrearages and for reconsideration of other issues, including the pending modification award based on new, updated income information not previously before the court; the plaintiff cross-filed, alleging special hardship and a right to arrearage abatement. As of February 3, 1995 a hearing on all issues has now been held, the court making the following additional findings relevant to adjudication:

1. The testimony of Janice Coble, Gloucester County Probation Officer, established arrears as of August 4, 1994 at $2,467. She awaits a final court order, at which time she will post additional debits and credits to plaintiff's account.

2. For the year 1994, plaintiff's actual net income was $514; for 1995, $528. Defendant's net income remained at $360 for each year.

3. Defendant's total weekly child care costs had been reduced to $30.

4. The new infant still suffers from a debilitating physical condition, gastro esophagal reflux, which to date has resulted in more than $6000 in uninsured medical and hospital expenses. The child's condition requires 24-hour a day parental monitoring to guard against the child's choking on his own vomit. Likewise, plaintiff's second family continues to struggle with weekly, $30-plus, out-of-pocket pharmacy and medical bills. While defendant, too, has incurred added unexpected monthly medical/pharmacy costs of $20 related to one child's asthmatic condition, this sum is but a small percentage of plaintiff-father's.

5. For comparative purposes only, using a "one family, no other children, no modification for cause" standard, plaintiff's Child Support Guidelines obligation to family one's children would have been $170 per week, to family two's child, $115 per week. See Appendix IX-C, Pressler, Current N.J.Court Rules. But if plaintiff's obligations are calculated on Appendix IX-E, p (c)(4) criteria (support for children of separated second families), his net support for family one would first be deducted from his current net wages. His residuary net pay would then constitute the base for second family child support obligations, in this instance, an order of $83 would be imposed based on plaintiff's adjusted net wages, $358 ($528 minus $170).

II.

Though support actions are usually advanced, and defended by parents, the real parties in interest before the court are the children. Martinetti v. Hickman, 261 N.J.Super. 508, 619 A.2d 599 (App.Div.1993). They have a right to a standard of living, of care, of maintenance, commensurate with the collective incomes and best efforts of their parents. N.J.S.A. 2A:34-23; Zazzo v. Zazzo, 245 N.J.Super. 124, 584 A.2d 281 (App.Div.1990), certif. denied, 126 N.J. 321, 598 A.2d 881 (1991); Walton v. Visgil, 248 N.J.Super. 642, 591 A.2d 1018 (App.Div.1991); Borzillo v. Borzillo, 259 N.J.Super. 286, 612 A.2d 958 (Ch.Div.1992). In furtherance of these principles, this court holds that plaintiff's petition for child support reduction is not plaintiff's right per se "because" he is the father of a newly-born son, but is, in effect, an action brought derivatively "on behalf" of his son to fairly share with his brother and sister a portion of his father's income, to be likewise supported by his father.

* * *

In the past, some courts have strictly applied what best could be described as a "first family in time, first family of right" exclusion in which second family obligations, no matter how burdensome, were accorded no consideration. Testut v. Testut, 32 N.J.Super. 95, 107 A.2d 811 (App.Div.1954). Some have not, holding remarriage, subsequent children as factors to be considered. Padwee v. Padwee, 7 N.J.Super. 101, 72 A.2d 213 (App.Div.1950).

But today, child support, as that policy is primarily implemented through the Child Support Guidelines, does not substantially differentiate between children born of first or ensuing relationships when modification is an issue or the right to be supported by a common, legally obligated parent is asserted. The current theory, as practiced by our courts, is direct and sound: A child's right to be adequately fed, clothed, housed and educated should not primarily depend on the date of his or her birth, the family in which he or she is born. Equality before the court, the child's right to be nurtured, should never be subject to such a presumptive "time or status" litmus test.

Since our Child Support Guidelines do not specifically provide a pat formula where intact second families seek modification of first family orders, how to implement a fair division of a common parent's income can be a nettlesome task not amenable to mechanical, mathematical certainty or equation. (See Appendix IX-B, IX-C and IX-E, p (c)(4), Pressler, Current N.J.Court Rules, pp. 1676-79, 1682). ³ More often than not--and this case is no exception--second family petitions can raise tension levels severely, and can further polarize the parties: Family one sees such applications as an unfair erosion of their standard of living directly caused by the obligor's unwillingness to recognize that if he cannot support the children of the first relationship, he should have refrained from having more; and family two, primarily the new spouse or paramour, perceives such strident opposition as nothing more than a "cake for you, crumbs for me" response, a contest fought for her and for her child's survival. Ofttimes, as here, there are enough grains of truth to fill many a sack. For first and second family children do, in fact, frequently suffer direct economic, social consequence when there is too little foresight and insufficient income to meet the needs of both.

* * *

Every request for modification of a child support order must demonstrate that changed circumstances exist. Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980). A newly-born child, within a first family relationship or beyond it, is a person not contemplated at the time of the original order for whom provision, and accommodation must be made. Appendix IX-A(5), Pressler, Current N.J.Court Rules, p. 1674. ⁴ Such review starts the calculation process anew based on all mutual sources of income, Zazzo v. Zazzo, supra; Terry v. Terry, 270 N.J.Super. 105, 636 A.2d 579 (App.Div.1994), and should also consider:

Whether the obligor seeking the reduction has an ability, the opportunity to earn additional income--and if so, how much--so as to lessen the potential financial impact, the potential hardship, on his first family that such a reduction may cause.

What this obligor would probably be required to pay the child/children in each household on a first-family order or pursuant to Appendix IX-E, para. C(4), of the Child Support...