Earlier today I posted ablog entry on the unreported Appellate Division decision in Holden v, Holden decided on October 28, 2010.  In that piece, I discussed how the court based support on the father’s gross income because of his history of not paying taxes.  The case was interesting for other reasons, as well. 

In this case, the parties net income exceeded the maximum net incomes under the Child Support Guidelines.  The trial court entered a somewhat arbitrary award with regard to past and prospective child support which did not take into account the children’s actual needs.  This, in part, was brought on by the fact that the parties did not present all of the relevant information regarding the children’s needs (each had custody of one child).  The father appealed on this ground.

In reversing, the Appellate Division agreed with the father, restating the law as follows:

It is undisputed that where family income exceeds the maximum amount under the guidelines, the court has discretion to calculate child support using the maximum support under the guidelines and "combin[e] that preliminary figure with a
supplemental award subject to the provisions of N.J.S.A. 2A:34-23a . . . ." Pascale v. Pascale, 140 N.J. 583, 595 (l995).


In these situations, the Court must look at the statutory factors, apply them and then make specific fact findings.  The factors are as follows:

l. Needs of the child;
2. Standard of living and economic circumstances of each parent;
3. All sources of income and assets of each parent;
4. Earning ability of each parent, including educational background,
training, employment skills, work experience, custodial responsibility
for children including the cost of providing child care and the length of
time and cost of each parent to obtain training or experience for appropriate
5. Need and capacity of the child for education, including higher education;
6. Age and health of the child and each parent;
7. Income, assets and earning ability of the child;
8. Responsibility of the parents for the court-ordered support of others;
9. Reasonable debts and liabilities of each child and parent; and
10. Any other factors the court may deem relevant.

The Appellate Division reiterated that a court cannot take the top Guideline support number and extrapolate support from there because doing so undermines the statistical basis of the Guidelines.  Moreover, in high income cases, the Court noted that "The Supreme Court has also directed that while the parties’ respective income percentages are to be considered for calculating child support under the guidelines, those percentages cannot be used to determine the supplemental child support component."  Quoting Caplan, one of the leading cases on this issue, the Court noted:

[B]ecause the income and assets of each party are only two of the many statutory
factors the trial court must consider in determining a fair and just child support
award, the allocation equation utilized under the guidelines-based award has little
or no application to the amount of additional support determined through analyzing the N.J.S.A. 2A:34-23 factors.

What can we take from this case.  First, when the case is over guidelines, it is important to present to the Court a budget of the children’s needs, if not, what they would do if they had the ability based upon the good fortune of the other parent.   Second, in over guidelines cases, splitting extraordinary expenses in proportion to income may not be appropriate under many circumstances – especially where there is a large disparity in income. 

Finally, as an aside, in this case, the father and one of the children were living in Dubai and the court said that consideration of transportation expenses related to the child visiting the mother in the United States, which was not done by the trial court, was necessary.  This suggests that in relocation cases, consideration must be paid to the travel expenses as opposed to just foisting them solely upon the parent moving away.