On May 21, 2010, the Appellate Division issued a reported (precedential) opinion in Colca v. Anson involving different aspects of child support and college support. This case reinforces several principles regarding child support and payment of college expenses that we already knew (which makes it somewhat surprising that it was reported) but nevertheless is a good reminder of certain basic principles.
The first of these principles is that child support belongs to the child and thus cannot be waived by a parent or for that matter, by a court. This comes up in two contexts in this case. First, in a 2005 Order, for whatever reason, the trial court denied the father’s request for child support for the parties’ daughter who was in college. In another motion in 2008, the father sought child support again. Thinking that the matter had previously been decided by the court and that there were no changes of circumstances, the mother did not even file a Case Information Statement.
The trial court disagreed with the mother’s position that the prior Order was forever binding and required a showing of changed circumstances, pointing out that the duty to support a child continues until emancipation.
In addition, the Appellate Division affirmed the trial court’s decision that the child’s inheritance could not be considered with regard to support. While perhaps correct as to child support, there are not enough facts given in this opinion about how much was really in dispute. That said, the Child Support Guidelines suggest an adjustment to child support may be required if a child has an extraordinarily high income. Also, in the famous NJ case on college expenses, Newburgh v. Arrigo, which we have blogged on many times before, a child’s assets are a factor to be considered. Since the college was at issue in this case, one wonders why the inheritance was not considered here.
When calculating the mother’s income, since she did not file a CIS (probably because she did not believe she had to), the trial court used the NJ Department of Labor guidelines, in accordance with the Child Support Guidelines, to impute income to her. This was affirmed by the Appellate Division. This seems somewhat unfair under the unusual history of this case. If the Appellate Division deemed this case significant enough to report on the issue that a prior order denying child support cannot preclude a future application, even without a showing of a change of circumstance, it would seem that perhaps what should have occurred, before simply picking a number from "statistics", would have been to give the mother a chance to file her CIS before fixing support. In fact, it is not unusual in modification motion for the responding party not to file a CIS because under the famous NJ case on modification, Lepis v. Lepis, there is no right of discovery until after a showing of a change of circumstances is made. Given that law, it seems unfair for the mother not to be given an opportunity to disclose her actual income here.
The mother then argued ta ht the father’s delay in seeking payment for the mother’s share of the parties’ son’s college expenses amounted to a waiver. The Appellate Division held that even though he failed to comply with the mechanism for review and reimbursement set forth in a prior Order, he remained entitled to receive reimbursement. The Court noted that "A corollary to the principle that child support belongs to the child is the principle that the right to receive child support may not be waived by a custodial parent." The Appellate Division further went on to state:
Matrimonial litigants are often frustrated with litigating claims due to the time, expense, and uncertainty of the result. Nevertheless, because plaintiff’s obligation is in the nature of support for an unemancipated child, she is obligated to provide these necessary payments, even in the face of defendant’s failure to abide strictly by the procedures provided in the November order. (Emphasis added).
The bolded portion identifies a major problem in the family court, that is, that Orders are not always enforced. If an obligation is clear and courts routinely enforced orders as written, why would a litigant be frustrated by litigating their claim or scared about the uncertainty of the result? I have often said that the hardest thing to explain to a client is why a court order was not enforced. The next most difficult question, not necessarily from a legal stand point, but from one of logic is when a client asks, "if he/she doesn’t have to comply with an order, why should I?" Of course, you can never counsel a client to ignore a court order but you can certainly understand where their question comes from. Moreover, many divorce agreements provide an entitlement to counsel fees if you have to file an enforcement motion and the Court rules also provide for same, yet court’s do not often reimburse much of the fees incurred, if any are ordered, thus a litigant is rarely made whole.
That all said, this case is definitely an interesting reminder of may basic child support principles and the realities of family court matters.