Mother Appeals Downward Modification Of Child Support
- June 23, 2015
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In Litvinenko v. Ter-Saakov, the Plaintiff appealed from a Court Order with regard to adjustments that were made to the Defendant’s child support obligation, as well as, an award of attorney’s fees that was granted in the Defendant’s favor. The Plaintiff and Defendant have one (1) child together, a son born in 2008. The Defendant relocated to the Ukraine in 2012, when the parties’ son was four (4) years old. Subsequently, a Family Court judge issued an Order granting sole custody of the child to the Plaintiff and requiring the Defendant to pay child support in the amount of $463 a week. A few months later the Defendant returned from the Ukraine to attend a Motion hearing with his attorney at which the Plaintiff represented herself. Halfway through the hearing the Plaintiff requested an adjournment to seek counsel, the judge denied her request during the hearing. The Plaintiff then stated, in the courtroom, that she was going to walk out of courtroom and not participate in the proceeding. The judge warned her that doing so would result in her requested relief being denied. She walked out of the courtroom anyway. The judge proceeded with the hearing and entered an Order granting the parties shared custody of their child. The Defendant was provided with Skype parenting time three (3) times a week and one (1) week overnight vacation per year. Further, the Defendant’s child support obligation was reduced to $268 a week and he was awarded $11,805 in counsel fees. The Plaintiff appealed. On appeal the Plaintiff argued that the judge abused her discretion by awarding counsel fees to the Defendant because the Defendant was a successful businessman earning a seven (7) figure salary and she further claimed that the judge erred in reducing the Defendant’s child support obligation. According to the Appellate Court, a judge in a matrimonial action may award reasonable attorney’s fees and shall “consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.” N.J.S.A. 2A:34-23; N.J. Court Rule 5:3-5(c). The decision to award counsel fees “in a matrimonial action rests in the discretion of the trial court[,]” Addesa v. Addesa, 392 N.J. Super. 58, 78, 919 A.2d 885 (App. Div. 2007), and will be disturbed “only on the ‘rarest occasion,’ and then only because of [a] clear abuse of discretion.” Strahan v. Strahan, 402 N.J. Super. 298, 317, 953 A.2d 1219 (App. Div. 2008). In this case, the judge based the attorney fee award on the Plaintiff’s bad faith in leaving the proceeding against the direct order of the judge. The Appellate Court held that the trial judge aptly explained her reasons for the award and the decision was well within her discretion, therefore, the award of attorney fees was affirmed. However, the Appellate Court found that the trial judge’s modification of the Defendant’s child support obligation was in error because the judge did not attach a copy a NJ Child Support Guidelines Worksheet or explain her reasoning for the downward modification, which is required. Capaccio v. Capaccio, 321 N.J. Super. 46, 54 n.11, 729 A.2d 253 (App. Div. 1999); N.J. Court Rule 5:6A. Therefore, the decision of the lower court was affirmed in part, reversed in part, and remanded back to the Family Court. If you believe that it may be beneficial to you to seek a post-judgment modification of your child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, parenting time, child relocation, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.