Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

May My Child Support Be Recalculated If My Travel Expenses Have Been Reduced?

            Yes.  The following New Jersey Appellate Division case, directs child support lawyers that a decrease in costs with respect to costs relate to travel and visitation (or parenting time) is good cause to have child support changed.  Under New Jersey child support law, this is a change significant which is enough to call for a recalculation of the amount in child support.  The following case involves parents living in New Jersey, South Carolina and then Hawaii. The lawyers in this case dealt with an unusual fact pattern including a father serving our military whom was anticipated to be deployed to Iraq and the problems parents face in such a situation.

            In Krause v. Dor, father and veteran James E. Krause, Jr. appealed from two orders of the Superior Court of New Jersey, Family Part of Monmouth County dated April 30, 2015 and July 23, 2015 respectively. The April 30, 2015 established that he would pay $ 160 a week in child support, in addition to $ 25 a week to pay off arrears, while also requiring him to pay for all of his travel costs related to parenting time himself. The July 23, 2015 order reduced his child support obligation from $ 160 a week to $ 120 a week, and allocated travel expenses so that now he would only be responsible for sixty-five percent of the travel costs related to parenting, and the mother of his child, Delphine M. Dor, would be responsible for thirty-five percent. Upon review, the New Jersey Appellate Division affirmed the order of the Family Part of Monmouth County.

            James Krause and Delphine Dor never got married, but had a son together born on in October 2004. At the time of the appeal, James lived in New Jersey, and Delphine lived in South Carolina. The parties had entered into a consent order on July 13, 2005 that granted Delphine sole legal custody of the child. This is because it was possible that James could be deployed to Iraq for military service. Additionally, the consent order also allowed Delphine to move out of New Jersey with the child.

            The parents entered into a second consent order on September 12, 2006. This consent order resolved issues of parenting time, custody, child support, life insurance, medical expenses and counsel fees. The consent order further provided that that parents would share joint custody of the child, with Delphine serving as the parent of primary residence; Delphine was free to move out of New Jersey provided that she acquired a full time job, if this happened then James would have parenting time with the child for a two week period every two months, and the child’s summer vacation and school breaks would be shared equally by the parents; James would pay Delphine $ 89 a week in child support, as per the Child Support Guidelines; the child support obligation would be renegotiable if Delphine chose to move out of state, and the new amount would account for the travel costs James would have to incur to exercise parenting time; and the State of New Jersey would keep jurisdiction over all issues that may arise concerning the children.

After numerous orders were entered, relating to parenting time issues, on March 31, 2010, James filed an order to show cause, in which he sought an order prohibiting Delphine from moving to Hawaii with the child. The parents entered into a third consent order on May 14, 2010, that allowed the relocation, and that child support to be on hold for the foreseeable future. The parents further agreed that that child would need an adult to go with him on the trips to New Jersey from Hawaii, when visiting James, and that James would be responsible for all the transportation costs, which included the costs for the person accompanying the child. This concession was based on the fact that Delphine had waived child support, and the estimated transportation costs of $ 4,000 to $ 7,500 a year.  Finally, the parents also agreed that James’ parenting time would be on alternating Christmas and Thanksgiving holidays, every spring break, and seven back to back weeks in the summer.

Then on January 28, 2015, Delphine filed a motion, in which she sought to re-establish James’ child support obligation, and reduce his parenting time in the summer from seven weeks to five weeks. In her supporting certification, Delphine claimed that she had moved to Texas in February of 2012, and then again to South Carolina in August 2012. As such, she alleged that James’ travel expenses had decreased significantly, and so the child support waiver was no longer appropriate. Furthermore, She claimed the she had only agreed that James would have seven weeks of parenting time in the summer because she was previously living in Hawaii, and that the close proximity of South Carolina to New Jersey no longer warranted a visitation period of such a prolonged nature. 

James filed a cross-motion in response, in which he sought the denial of Delphine’s motion, in addition to modifying the parenting time schedule to give him two extra long weekends with the child, and permitting the child to fly unaccompanied. In her reply certification, Delphine estimated that the cost of round trip travel to South Carolina for James and the child would be $ 2,364 a year, an amount significantly lower than the $ 9,600 James had been spending to travel to Hawaii. She further claimed that she was willing to let the child fly alone, which would lower the travel costs to $ 788 a year.

At oral argument, the judge made note that the consent order dated May 10, 2010 that required James to pay for all the transportation costs was based on Delphines waiver of child support, and travel expenses between $ 4,000 and $ 7,500, and that now the travel costs had gone down. The judge entered an order on April 30, 2015, that reduced James’ parenting time to six weeks in the summer, but awarded him two extra long weekends during the year. In addition, he was ordered to pay Delphine child support in the amount of $ 160 a week, and all travel expenses associated with his parenting time.

On May 19, 2015, James filed a motion for reconsideration, in which he argued that travel expenses related to his parenting time should be offset against his child support obligation as per the previous May 14, 2010 consent order. He further argued that even though the travel costs now were less than those he incurred when Delphine lived in Hawaii, he would still incur a significant cost of almost $ 2,000 every year for his three parenting time visits. The Judge recalculated child support at $ 120 a week, based on the newly submitted case information statement. Furthermore, the judge re-allocated the travel expenses to sixty-five percent for James, and thirty-five percent to Delphine, which the judge characterized as a “more reasonable and fairer situation.” An appeal followed the order.

On appeal, James argued that Delphine did not meet her burden of establishing a substantial change in circumstances that warranted a modification of the 2010 consent order, and that the motion judge abused his discretion when he modified the consent order. He argued alternatively, that the motion judge should have ordered a plenary hearing to determine the annual cost of the travel expenses. The New Jersey Appellate Division reviewed the arguments and found that they were not persuasive.

The New Jersey Appellate Division explained that the Family Part is afforded broad equitable powers to serve justice. As such, appellate courts give great deference and discretion to Family Part judges. With that said an appellate panel will defer to the Family Part when the court has abused its discretion. An abuse of discretion occurs when a judge makes a decision without a rational explanation, and is not consistent with established policies or based upon an impermissible basis.

Child support is needed to make sure that parents take care of the “basic needs” of their children. A parent may not bargain away a child’s right to support because the right to support belongs to the child, not the parent. According to the paramount New Jersey Supreme Court case of Lepis v. Lepis, a parent who requests a modification of a child support order has the burden to prove a change in circumstances that warrant an adjustment. The decision to modify must be consistent with the Child Support Guidelines, and made in the best interest of the child. However, as long a child receives appropriate support, parents may enter into voluntary agreements that depart from the general Lepis rule, and mutually agree to their own standards relating to “reasonably foreseeable future circumstances.” While the New Jersey Appellate Division acknowledged that the parent’s 2010 consent order had the potential to ensure the desired degree of stability preferred in support agreements, according to New Jersey Statute 2A:34-23, until a child is emancipated, the Family Part has the equitable authority to enter, revise or modify support orders “from time to time as circumstances may require.”

The appellate panel found that the motion judge correctly concluded that because of the reduced travel expenses, there was a change of circumstances that warranted the modification of the child support and travel costs. Furthermore, the appellate panel found no error with the judge’s decision not to hold a plenary hearing. There was no genuine issue of material fact relating to the cost of travel. Every factual issue that arises in a family law case does not trigger the need for a plenary hearing. As such the New Jersey Appellate Division affirmed the orders of the Family Part.

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