When negotiating the payment of child support, I discuss with my clients the implications of paying/receiving support through Probation.  One of the major implications of paying child support through Probation is the anticipation of a Cost of Living Adjustment, or COLA.

Any child support order paid through Probation that was issued after September 1, 1998 is subject to a COLA increase every two years.  At around the two year mark, Probation provides both parties with a notice of the increase.  The increase is based on the “average change in the Consumer Price Index for the Metropolitan statistical areas that encompass New Jersey and shall be compounded.”  Although Probation will calculate the percentage increase for you, you can calculate it yourself to anticipate what’s at stake:

1.  Visit the Bureau of Labor Statistics Website: http://www.bls.gov/cpi/

2.  At the bottom right of the screen, there is a “Regional Resources” tool.  Select your region.  If you live in any part of New Jersey other than Atlantic City, select New York.  If you live in Atlantic City, select Philadelphia.

3.  A table will appear, select the “more formatting” option.  Then select “12 month percent change”.  Specify the 2 year range.  Select “annual data” for time period.  Finally, click on “Retrieve Data.”  For example, the 2009 average change in the Consumer Price Index (CPI) was .4 and in 2010, it was 1.7.  Therefore, the total change was 2.1% for the 2 year period.  Considering this, a $100 per week obligation would be increased to $102.10 per week with the COLA.

After receiving a COLA notice, the party paying child support has 30 days from the date of the notice mailing to contest the increase with Probation.  The increase may only be contested on the following grounds: (1) his/her income has not increased at a percentage at least equal to that rate; OR (2) the child support order already provides for an alternate method of periodic COLA adjustments.  After considering the objection, Probation will make a recommendation and notify the parties of the recommendation.  The party who is dissatisfied with Probation’s determination may request a hearing before a Probation hearing officer (not a judge).  If either party is dissatisfied with the hearing officer’s decision, that party may appeal to the family court judge.  In such circumstances, the family court judge shall consider all evidence presented, regardless of whether the evidence was presented to the hearing officer.

The COLA increase was recently addressed by the Appellate Division in an unpublished opinion, Savini v. Triestman.  In this case, the father contested his 6.85% COLA, which would have increased his child support obligation by $218 per month, or $2,616 per year.  Probation agreed and determined that a COLA was “not warranted.”  The mother requested a hearing, but the hearing officer ruled against her.  The mother appealed to a family court judge, claiming that the father was lying about his income.  The judge claimed she hadn’t satisfied “her burden” of proving this and ruled against her.

The Appellate Division in Savini disagreed, holding that the trial judge improperly held the mother to the father’s burden.   Rather, the judge should have made specific findings as to the father’s income before and during the COLA time-period.  Finally, the judge should have calculated whether any increase in the father’s income was at least 6.85%.

Considering the money at stake, it is important for a party to understand the procedure and be ready to use it if necessary.