Showing Changed Circumstances May Adjust Alimony and Child Support

Aug 24, 2016

New Jersey courts may adjust alimony and child support upon a showing of changed circumstances.  An increase in the cost of living, an increase or decrease in the supporting spouse’s income, and changes in the child’s needs can all constitute changed circumstances.  But for the court to adjust alimony or child support obligations, the change in circumstances must be permanent.  Temporary circumstances do not warrant modification.

In Pimentel v. Pimentel, the Appellate Division reversed the trial court’s denial of the husband’s motion to reduce his support obligations and remanded the case for a plenary hearing.  The husband and wife were married in 1986 and divorced in 2011.  Only one of their two children is a dependent minor.  The final judgment of divorce ordered the husband to pay $1,500 a month in permanent alimony and $193 a week in child support.  The husband failed to keep up with his support payments.  As of May 2014, his arrears were $69,000, and he had been arrested as a result.

The husband previously filed 2 motions without an attorney seeking to modify his support obligations.  Both motions were denied on the papers, one on December 20, 2013, and one on March 27, 2014.  He hired an attorney to file the instant motion seeking to reduce his support obligations based on reduced income and custody of a child from another relationship.  The husband filed a Case Information Statement (CIS) and attached his 2012 and 2013 W-2s to demonstrate income of $18,200 a year—nearly $10,000 less than his support obligations.  He also submitted proofs that he was awarded custody of his now 7-year-old daughter in March 2014.  The wife filed her opposition late and the Family Part did not consider it.  Nevertheless, the judge denied the husband’s motions on the papers on November 6, 2014.

The judge explained the procedural and substantive reasons for denying the motion.  First, the husband had failed to provide proof of his income at the time the support obligation was established in 2011 as required by Rule 5:5-4(a).  The husband also failed to provide proof of diligent efforts to find a job consistent with his prior earnings.  The judge also explained that the husband’s 3rd motion was basically an untimely request for reconsideration of the denials of the earlier motions.  Moreover, the judge was skeptical that the husband’s income was as low as he claimed because: (1) the husband had previously paid $30,000 in cash for a car, a vacation, and the remodeling of a home; (2) in May 2014, the husband was able to pay the $5,275 ordered to avoid further enforcement proceedings; (3) the husband’s CIS represented $18,780 in expenses despite claiming income of $18,200; and (4) the husband said that he worked at Alexis Mini Market, but the wife had previously alleged that the husband actually owned the mini market.

On appeal, the husband argued that the Family Part judge should not have denied his motion without conducting a plenary hearing.  The Appellate Division agreed, concluding that the husband had made a prima facie showing of changed circumstances.  The Appellate Division noted that the Family Part judge did not address the husband’s proofs that he recently obtained custody of another child.  In addition, that basis for changed circumstances had never been raised in the previous motions.  Moreover, the husband had submitted proofs supporting his allegedly decreased income, and had thus made a prima facie demonstration of changed circumstances on that basis as well.  Accordingly, the Appellate Division reversed and remanded the matter to the Family Part to resolve the disputed facts at an evidentiary hearing.

If you have an issue with alimony or child support, contact the skilled matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC.  Call us today at (973) 274-5200.