Burden of Demonstrating Changed Circumstances to Modify Child Support

Nov 06, 2018

Betz v. Foti, 2018 N.J. Super. Unpub. LEXIS 2401

The High Burden of Demonstrating Changed Circumstances to Modify Child Support

New Jersey policy places a high emphasis on the support of children.  Thus, parents have an obligation to support their children both financially and emotionally, and such support continues after a divorce.  This policy has led the courts to create a high burden for the payor-parent requesting modification of their child support amount when their financial circumstances change.  “The demonstration of a significant change in financial circumstances is the first step when determining whether modification of a previously set child support award is warranted.”  Jacoby v. Jacoby, 427 N.J. Super. 109, 118-19 (App. Div. 2012).  Therefore, it is the moving party who bears the burden of making a prima facie showing of changed circumstances.  Once a change in circumstances has been shown, the court then determines the proper level of support, but such a determination often applies the New Jersey Child Support Guidelines.  A recent Appellate Division case, Betz v. Foti, provides some clarity into understanding what is sufficient to constitute changed circumstances.            

In Betz, defendant appealed from an order denying his motion to modify child support.  The parties’ marriage lasted approximately eight years before their divorce finalized in 2015.  The ex-husband (defendant) stated that his annual income averaged between $25,000 and $29,000 just before the divorce complaint was filed.  However, he was imputed income of $75,000 annually by agreement because his child support arrearages had heavily accumulated since the final judgment of divorce (FJOD).  Based on the higher imputed income, the court established defendant’s child support obligation at $203 per week.    

A hearing was conducted by the court in order to determine the validity of the parties’ verbal agreement regarding defendant’s imputed income.  After the FJOD, defendant argued that he only agreed to be imputed at the higher income for the time between the initial complaint and the FJOD because of the substantial child support arrears.  He therefore argued for a downward modification of child support based on his real income of less than $30,000 annually.

Defendant argued that he had level I autism disorder and attention deficit hyperactivity disorder, which prevented him from understanding the financial consequences of his agreement with plaintiff.   Plaintiff’s opposition contended that defendant’s condition did not affect his capacity to enter into the agreement.  Moreover, she argued that defendant’s income also included cash payments and other benefits as he worked for his family business.      

The court held that defendant did not make a prima facie showing of changed circumstances justifying any modification of his child support obligation.  In denying defendant’s motion, the court stated that if defendant’s reported income decreased substantially, it was his obligation to answer the discovery requests of plaintiff for his complete financial information.  The defendant instead “agreed to the imputed income rather than risk financial scrutiny of is earnings and the earnings of the family business.”  The court did find, however, that defendant’s compensation changed from salary-based before the FJOD to commission-based after the FJOD.  Despite this seemingly different circumstance, the court still was not persuaded that defendant made a prima facie showing of changed circumstances on a permanent basis.   

On appeal, the Appellate Division affirmed the court, holding that defendant failed to make a prima facie showing of changed circumstances that substantially impaired his ability to pay.  The Appellate Division stated that the changed circumstances analysis requires careful scrutiny of the parties’ financial condition at the time of the divorce complaint and at the time of the divorce itself.  Courts require the alleged changed circumstances to have already occurred by the time the motion is filed and be permanent in nature.    

If you have any questions regarding modification of child support, please contact the skilled matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC.  Call us today at (973) 274-5200.