In these uncertain times, it seems as though everyone is talking about the impact of the economy.  We’ve posted many blogs about proving changed circumstances for an increase or decrease in child support and/or alimony as well as a modification of parenting time.  You can read a few of those blogs here, here or here.

The trend continues.  In the recent unpublished Appellate Division decision of Rosenthal v. Whyte, A-1776-10T4, decided December 5, 2011, stemming from two Orders from the Cape May County trial court, the Court affirmed the lower court’s Orders denying Ms. Whyte’s motions to modify custody and child support.  To put it simply, Ms. Whyte failed to meet her burden that enough of a change had occurred to warrant a modification of the parties’ 2008 Property Settlement Agreement (“PSA”).

The parties’ 2008 PSA provided for an anticipated move by Ms. Whyte with the minor child to upstate NY, more than 500 miles from Mr. Rosenthal’s Cape May county residence.  It also provided that Ms. Whyte was leaving her job as a school teacher to pursue a business opportunity in NY state.  Child support was set with these facts in mind.  Mr. Rosenthal’s parenting time was set forth as one weekend each month and one continuous month every summer with an additional week over the summer.

The issue arose in the summer of 2010 when Ms. Whyte withheld the child for weekend parenting time and filed an application in the Cape May county family court to modify the parenting time schedule as well as the child support.  Her arguments were that the child’s impending entry into kindergarten and Mr. Rosenthal’s alleged inability to properly care for the child presented sufficient changed circumstances warranting a review.  More specifically, Ms. Whyte claimed that Mr. Rosenthal 1) unsuccessfully protected the child from insect bites, 2) failed to consider the perils of driving with the child in inclement weather, 3) failed to take any involvement in the child’s medical well-being despite a known health problem, and 4) failed to inform Ms. Whyte of trips with the child outside of NJ.  With regard to a modification of child support, Ms. Whyte claimed a significant decrease in her income coupled with an increase in Mr. Rosenthal’s income warranted a revision and modification of child support.

In affirming the trial court, who denied Ms. Whyte’s initial application as well as her application for reconsideration, the Appellate Court found that Ms. Whyte had failed to meet her burden of proving significant changed circumstances, which were not contemplated or could not have been anticipated at the time of the entry of the parties’ PSA.

By focusing on the age of the PSA, the trial court pointed out, and the Appellate Court agreed, that many of the supposed changes set forth by Ms. Whyte were contemplated when the PSA was signed (the child’s entry into kindergarten, driving in inclement weather with the child). Similarly, the PSA specifically outlined Ms. Whyte’s plan to leave her career as a school teacher and pursue a new business venture – hence the risk was specifically outlined.  Mr. Rosenthal’s increase in income was that of $200 per week, found by the court not to be so substantial to warrant a recalculation.  Therefore, both courts found there had been an insufficient change in circumstance to warrant a modification of either parenting time or child support.

When considering an application based upon changed circumstances, it’s important to evaluate the significance of the changes alleged, whether these changes were or could have reasonably anticipated at the time of the agreement or judgment, and how old the agreement or judgment may be.  Remember, if you’re making the application, it is your burden to prove that changed circumstances exist and are significant and continuing to warrant a change in the status quo.

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Sandra Fava is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild’s Family Law Practice Group. Sandra practices throughout New Jersey in all areas of family law and family law litigation. You can reach Sandra at (973)994-7564, or sfava@foxrothschild.com.

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