The Appellate Division’s July 6, 2021 decision follows nearly a decade of post-judgment divorce litigation between the parties. Defendant appealed three (3) Family Part orders which (1) denied his motion to reopen an arbitration award; (2) denied his motion for reconsideration; and, (3) denied his motion to modify his child support obligation. Plaintiff’s cross-appeal similarly challenged three (3) Family Part orders that denied multiple prayers for relief contained in various motions. As the Appellate Division noted at the outset: there was “no basis to disturb any of the challenged decisions, with one exception.” This exception, although part of an unpublished Appellate Division decision and therefore non-binding on lower courts, offers clarification regarding child support modification for a child residing away from home—particularly at boarding school.
As the Supreme Court of New Jersey opined in Faherty v. Faherty, 97 N.J. 99, 222 (1984): “child support [is] always subject to modification for changed circumstances…” Pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), the moving party bears the burden of demonstrating a change in circumstances warranting modification. On review by the Appellate Division, denials of requests to modify child support are examined to determine whether, given the facts, the trial court abused its discretion. In any event, “an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.” Foust v. Glaser, 340 N.J. Super 312, 315-16 (App. Div. 2001). It is well settled law in the State of New Jersey that a child living at college—that is, away from home—is a change in circumstances warranting review of a child support obligation. Jacoby v. Jacoby, 427 N.J. Super. 109, 118 (App. Div. 2012).
In Baeszler v. Baeszler, the parties were married in September 1994. They had two children together: a daughter, born in 1999, and a son, born in 2003. The parties were divorced in August 2008 by way of a Dual Judgment of Divorce, which incorporated their Memorandum of Understanding. The parties almost immediately engaged in post-judgment litigation regarding Defendant’s child support obligation and educational expenses relating to the parties’ daughter. As a result of Defendant’s refusal to cooperate with paying the daughter’s tuition and related expenses, Plaintiff was awarded sole custody of both children in August 2015.
Fast forward three (3) years later, Plaintiff’s request to enroll the parties’ son in a Pennsylvania boarding school was granted. In response, Defendant moved to modify his child support obligation based upon a material change in circumstances given their son would be living away from home for the school year. Defendant’s motion was denied because the trial court determined that disturbing the award of child support would disrupt the other aspects of arbitration award.
The Appellate Division’s “one exception” was its clear agreement with Defendant that the trial court erred in not permitting a review and modification of his child support obligation. In agreeing with Defendant, the Appellate Division extended the well settled law (that a child residing at college was a change in circumstances warranting review and possible modification of a child support obligation) to the realm of boarding school. By this extension, the law has not changed. Rather, the Appellate Division remarked that same analysis is required: “courts faced with the question of settling child support for children living away from home must assess all applicable facts and circumstances, weighing the factors in N.J.S.A. 2A:34-23a.” Jacoby, supra at 113. The factors of that statute are as follows:
- Needs of the child;
- Standard of living and economic circumstances of each parent;
- All sources of income and assets of each parent;
- 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 employment;
- Need and capacity of the child for education, including higher education;
- Age and health of the child and each parent;
- Income, assets and earning ability of the child;
- Responsibility of the parents for the court-ordered support of others;
- Reasonable debts and liabilities of each child and parent; and
- Any other factors the court may deem relevant.
The trial court simply missed the mark. Its reasoning for denying Defendant’s request to review and modify child support was insufficient as it rested solely on the following quote: “[the] Arbitration Award so ingrains child support with other payments and expenses that to disturb that figure would disrupt many other aspects of the award.” The trial court gave this reason without a thorough analysis of the parties’ entire submissions on the issue. Indeed, it did so without the benefit of a plenary hearing. The Appellate Division vacated this portion of the Order and remanded the issue to the trial court for further review with a pointed directive: “the trial court must state its reasons on the record to support its decision to grant or deny the defendant’s motion to modify child support.”
While boarding school is an extremely niche situation, the global message is quite clear by the Appellate Division. It’s decision to extend the well settled law was prefaced by the word “logically”. What other alternative living situations for children could see this well settled law “logically” extended? The ripple effects of this extension to boarding school are unknown given the recent decision and the fact that it is unpublished. Undoubtedly, parties moving to modify child support based upon children residing away from home, wherever that may be, will rely upon the Appellate Division’s “logical” extension of the law. However, in such a mobile society where children often reside elsewhere for extended periods of time—whether it be with grandparents, college, boarding school, camp, or the like—it is difficult to determine just how far the well settled law may be “logically” extended.
It would seem that the Appellate Division is, at least in this instance, directing the trial court to not adopt a per se approach to these situations. Rather, a child residing away from home requires review of the totality of the circumstances irrespective of whether it is college, boarding school or elsewhere.