Child Support COLA Increase Defeated On Appeal
- February 9, 2015
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Legal issues that involve disputes regarding child support can be of the most emotional and difficult in all of family law because of the sensitive nature of the issues, Wexler v. Wexler, is a 2015 New Jersey case involving a party’s post-judgment application to reduce his child support. The Plaintiff in this case appealed the decision of the Family Court disputing the trial judge’s finding that his child support obligation should be increased due to a change in circumstances. The divorced parties in this case have two (2) children who are teenagers and were teenagers at the time this litigation commenced. At the time of their divorce each party had residential custody of one of the children and according to their final divorce judgment the Plaintiff was required to pay the Defendant $52 per week in child support. In 2011, the Defendant filed a Motion requesting residential custody of the child that was not living with her and for an increase in the Plaintiff’s child support obligation. After the proceedings, the judge entered an order that, amongst other things, increased the Plaintiff’s child support to $266 a week. Three days after the Order was issued, the Probation Division sent both parties a notice that the Plaintiff’s weekly child support would be increased to $278 because of a “biennial cost-of-living adjustment (COLA).” Rule 5:6B(a) provides that “all orders and judgments that include child support . . . shall provide that the child support amount will be adjusted every two years to reflect cost of living.” A few months later the Defendant filed a Motion to enforce the prior Order to require the Plaintiff to make his payments on time and in the full amount. Soon thereafter Probation requested that the court void their prior COLA increase of the Plaintiff’s child support because it had been increased in the previous Order and therefore there was no basis for a COLA increase. Without knowledge of Probation’s request, the Plaintiff filed a response to the Defendant’s enforcement Motion and requested that the COLA be cancelled. In July 2013, a Family Court judge granted the Defendant’s enforcement Motion and directed that the Plaintiff pay a $1,500 lump sum payment toward his arrears. The Plaintiff then filed another Motion requesting that the COLA be voided. The judge denied his request citing that “the Court entered a new child support obligation on July 31, 2013 for $278 based upon a change in circumstances.” From this holding, the Plaintiff appealed. The Appellate Division held that it owed substantial deference to the Family Court’s decision. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). The court agreed with the Plaintiff that the Family Court judge mistakenly changed his child support obligation to $278 a week and therefore a change in circumstances was not the correct basis to make the increase. Being that there was no basis to raise the amount and because Plaintiff’s obligation had recently been increased to $266 a week the Appellate Court reversed and remanded the case back to the Family Court to readjust the obligation. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligations it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification , alimony, divorce or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.