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NJ Family Legal Blog Pertinent Information As It Relates To New Jersey Family Laws

FATAL FLAW IN MODIFICATION APPLICATION REVEALS “TEMPORARY” SITUATION

Posted in Modification

You have read here before that when filing for a modification in support in New Jersey, the movant must establish a substantial and continuing change in circumstances to fulfill the initial burden of proof, which will then  lead to an intervening period of discovery and eventual plenary hearing.  The Appellate Division issues dozens of opinions on a yearly basis addressing modification applications, each with its own specific set of facts and nuances. 

Many of those decisions note that a substantial and continuing change must be more than merely "temporary" in nature.  What constitutes a temporary change cannot be narrowed to a precise definition or description, since there is no firm standard of how long the change has to occur for it to move beyond the temporary phase.  Notably, each trial judge also has their own view on what constitutes a temporary change.  For instance, we have had judges determine that a mere couple of months is more than a temporary change, while other judges under similar factual scenarios will conclude that even a year is not enough.  On occasion, a given trial judge will helpfully instruct that, while a given length of time under the facts before him or her is insufficient to establish more than a temporary change, if the situation continues for another year or so, that will be enough.

It is with that background where the Appellate Division’s recently unpublished (not precedential) decision in Snyder v. Snyder comes into play.  There, the husband alleged that he had experienced a substantial and continuing change in circumstances meriting a reduction in his support obligation.  While the evidence detailed by the Appellate Division was insufficient for the husband to fulfill his initial burden (a relevant tax return, for instance, showed income sufficient to meet his agreed upon support obligation), it was a letter submitted by the husband’s employer on his behalf that I found noteworthy.

Specifically, in confirming that the husband’s salary had been reduced, the letter provided:

Over the past year, Vernon Daniel Associates has been negatively impacted by the downturn
in the economy. Since the product we provide to our clients is considered a luxury item, we do not anticipate business improving until sometime in 2010. 

Due to the poor economy and continuing losses experienced by the New Jersey office, Vernon Daniel Associates has decided to terminate the lease of our New Jersey office and warehouse. Kurt Snyder will remain in New Jersey as branch manager but will work from an office in his home. 

In addition to closing our New Jersey office and warehouse, expenses have been aggressively reduced wherever possible.  Effective January 2009, all branch manager salaries were reduced. In the case of Kurt Snyder, his annual salary draw was reduced from $80,000.00 to $67,000.00 and will remain so until business improves.

I highlight the last portion of the letter because it was the very language, "will remain so until business improves" that proved, in part (other than a tax return presented to the court) to be the husband’s undoing because it essentially gift-wrapped the notion that the alleged change in circumstance was nothing more than temporary and subject to a future increase.  Without knowing the details of the other evidence before the trial court and in the record on appeal, perhaps this language alone was sufficient to render fatal the husband’s application.

Thus, while one usually cannot predict when a court will deem an alleged change to be more than merely temporary, in this situation the key evidence was pretty clear that the change at issue was anything but permanent.