The newly unreported (does not set precedent) decision of Covone v. Curreri makes two bold moves: (1) asserting that the passage of time is not a change in circumstance warranting a modification to child support and (2) confirming that the trial court has authority to allocate expenses between parents even without proof of their financial circumstances. When rendering this decision, affirmed by the Appellate Court, it seems that the trial court inadvertently gave some tips for couples with young children who are divorcing/setting child support.
In this matter, the parties had a child in 2002 and then divorced in 2003. In their divorce agreement, the parties set the former husband’s child support obligation and agreed to review it in April 2005. The parties then entered into a Consent Order with an updated child support amount in 2005, and included cost of living adjustments (COLA) to increase child support in the years that followed, which they did.
In 2010, the parties agreed to retain a Parent Coordinator (“PC”), which is a professional (usually a family law attorney) who helps resolve custody/parenting time related disputes between parties, with the goal of reducing litigation. Unless otherwise authorized by agreement of the parties, a PC’s recommendations are not binding. Thus, if one party does not agree to the recommendation, it does not take effect. The other party can file an application with the Court seeking to incorporate the recommendations into a Court Order, which is what happened here when the former husband refused to sign a Consent Order that the PC drafted with respect to parenting time and child support.
As should be expected, after the former husband refused to sign the Consent Order, the former wife filed a motion with the Court seeking:
- Adopting the PC’s recommendations;
- Compelling the former husband to attend therapy with their daughter;
- Compelling the former husband to file an updated Case Information Statement (setting forth income, budget, assets and liabilities) in order to recalculate child support, arguing that the passage of time (13 years) is a change in circumstance warranting such recalculation; and,
- Compelling the former husband to contribute to educational and extraordinary expenses on behalf of their daughter, such as SAT costs, driving lessons, college visits, prom costs and senior class trip. Practice tip: the sharing of these expenses are often outlined in the divorce agreement even when a child is so young that the actual allocation cannot be defined. The agreement can simply list that extraordinary expenses will be shared at the relevant time based upon the parties’ financial circumstances, which would have required the financial circumstance/Case Information Statement exchange that the former wife sought.
After a hearing and updated briefs from each party, the Court denied the former wife’s request for the former husband to file an updated Case Information Statement and for the recalculation of child support simply because 13 years had passed since the present obligation was set. The Court did not seem to care that the former husband was driving a Maserati and had other luxury assets.
Citing to Martin v. Martin, the Court reiterated that the passage of time is not a change in circumstance warranting a child support modification and, in fact, that is why we have COLAs. Here, the parties had implemented COLAs since the last time child support was determined, resulting in an increase of over $2,000 over those 13 years.
On the other hand, the Court did find that the child’s status as a high school senior did result in the parents having to incur additional expenses that are not covered by child support, thereby ordering that the parties equally share the expenses requested by the former wife and for the parties to confer before incurring any such expense above $500.
In a somewhat surprising fashion, the Appellate Division affirmed the decision. While the child support order seems on point because there was no evidence of a change in circumstance with respect to child support that would open up discovery of the party’s financial circumstances (required for post-divorce financial issues), it is questionable as to how the trial court could have determined that the extraordinary expenses should be equally shared without proof of financial circumstances. Even the Child Support Guidelines state that extraordinary expenses are to be shared pro rata, i.e.: in proportion to income. If using the Guidelines to calculate child support, which the parties did here, there is even a specific line in the Guidelines that demonstrates each party’s percentage share of income. Moreover, generally in order to have a court compel the sharing of expenses, the cost (or estimated) cost must be provided. In fact, the Case Information Statement, addressed above, asks for an attachment when seeking contribution toward college expenses.
The Appellate Division, in affirming the decision with respect to equal allocation for the child’s expenses, said that the Court exercised its discretion in the absence of accurate financial circumstances of either party. This ignores that the former wife asked for the former husband to be required to produce such proofs (and presumably she would have had to also), and rewards the former husband for refusing to do so. If his obligation would have otherwise been more than 50% upon such discovery exchange, the former wife is the one making up the difference out of pocket.
Thus, even if the law is correct to deny a discovery exchange with respect to base child support, it should have required financial circumstance proofs before allocating child-related expenses – understanding that it could have opened the door to a child support recalculation. Even if it did, child support is for the child – not a reward or punishment for the parents – so if ultimately a recalculation resulted, where is the harm?
Beyond the takeaway of never being so sure what the court or Appellate Division will decide, a good tip is for couples divorcing with young child. In many of those circumstances (unless one part is significantly more wealthy than the other), you may want to build in reviews over time with required disclosures, and confirm an agreement to share extraordinary expenses at the relevant time based on financial circumstances at the time. Both of those agreements will likely require a financial disclosure and you will not be left without modifying child support while your former spouse is driving a Maserati and equally paying for expenses when your share perhaps should have been less.