WILLIAM NESMITH v. MARYANN NESMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0836-08T10836-08T1

WILLIAM NESMITH,

Plaintiff-Appellant,

v.

MARYANN NESMITH,

Defendant-Respondent.

______________________________________

 

Submitted June 30, 2009 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-1582-96.

Margolin & Neuner, attorneys for appellant

(Jamie L. Cicerelle, on the brief).

Respondent Maryann Nesmith has not filed a brief.

PER CURIAM

Plaintiff William Nesmith appeals from the order of the Family Part denying his motion seeking a reduction of his child support obligation based on changed circumstances. The motion judge denied plaintiff's motion without oral argument, finding that he had not established a prima facie case of changed circumstances. We disagree and reverse.

The parties had five children in the course of their marriage. They were divorced on October 26, 1996. One of the children died in 1998 from cancer; two others are emancipated; the youngest child is sixteen years old and is enrolled in high school; the child at issue here (a boy), reached the age of eighteen in May 2007. He enrolled in the Virginia Military Institute (VMI) in the Fall of 2007 as a freshman. He has since completed his sophomore year.

Pursuant to an order of the court dated January 3, 2008, plaintiff's child support obligation is $720 per month for the two unemancipated children. The support obligation, as set by a hearing officer and subsequently approved by the court, was based on the child support guidelines. Pursuant to an enforcement order entered by the court on October 1, 2003, plaintiff is also obligated to pay an additional $750 per month toward arrears.

Plaintiff filed a pro se motion seeking a reduction in child support in January 2008, after his son turned eighteen years old, and was attending VMI. According to plaintiff, his son was receiving a stipend of $300 per month from VMI during the academic year from September to May, and an additional $900 every six months. At the time plaintiff filed the motion for reduction of his support obligation, he had been unemployed for thirteen continuous months, and had no other source of income. He also alleged to be suffering from clinical depression and alcoholism.

Against this record, the trial court denied plaintiff's motion without oral argument. In a handwritten statement of reasons in support of the order denying the motion, the trial court noted that the scholarship support awarded to the boy by VMI

does not justify a decrease in child support because the fixed costs, i.e., having a room available for [him] while on breaks from school, remain the same. In addition, plaintiff has not established that [the boy] receives an allowance. At best, he has established that the school awards such allowances "to numerous students." Thus, plaintiff has not satisfied his burden of establishing changed circumstances warranting modification of his support obligation. Nor has plaintiff demonstrated that the amount he pays towards arrearages on child support should be reduced.

Plaintiff now argues on appeal that the court erred in not considering his lengthy period of unemployment, his health condition, and, perhaps most importantly from a legal standpoint, that the child support guidelines no longer apply after the supported child reaches the age of eighteen and is no longer enrolled in high school or other secondary education.

We agree with plaintiff and reverse. Appendix IX-A, section 25, reads as follows:

25. Support for a Child Who has Reached Majority - These schedules are based on economic estimates of average intact-family expenditures on children from ages zero through 17. These guidelines shall not be used to determine a support obligation for a child who has reached majority (18 years of age) and who is no longer enrolled in high school or other secondary education. After a child reaches majority and completes secondary education, a support obligation, if found by the court to be appropriate, shall be determined in accordance with N.J.S.A. 2A:34-23 and existing case law.

Pressler, Current N.J. Court Rules, Appendix 1X-A to R. 5:6A 25 at 2336 (2009).

It is well-settled that a party who establishes a prima facie case of changed circumstances is entitled to a plenary hearing to present evidence in support of the modification requested. Lepis v. Lepis, 83 N.J. 139, 157 (1980). The Court in Lepis noted that changed circumstances may include a decrease in the supporting spouse's income, an illness or disability. Id. at 150.

Here, plaintiff's child support obligation was set by the court at a time in which the child support guidelines were applicable. That is no longer the case. Plaintiff has also established, through certification, that his income has significantly decreased since 2004, and his ability to work has been compromised due to illness and psychiatric incapacity. These allegations have not been refuted by defendant. The combination of these factors establishes a prima facie case of changed circumstances triggering plaintiff's right to a plenary hearing.

Reversed and remanded. We do not retain jurisdiction.

 

(continued)

(continued)

5

A-0836-08T1

July 27, 2009