STEPHEN BIGGE v. PATRICIA WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEPHEN BIGGE,

Plaintiff-Appellant,

v.

PATRICIA WALKER (f/k/a

WALKER-BIGGE),

Defendant-Respondent.

________________________________

October 14, 2014

Submitted: October 7, 2014 Decided

Before Judges Haas and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-1016-97.

Stephen Bigge, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from the April 26, 2013 order of the Family Part denying his motion to modify his child support and life insurance obligations. We reverse and remand for further proceedings.

The parties were married in December 1987 and divorced on January 7, 1999. They have one child, born in 1991. The parties' Dual Judgment of Divorce (DJOD) required plaintiff to pay defendant $105 per week in child support, plus an additional $45 per week toward arrears he had accumulated since the parties separated. The record does not indicate how child support was calculated and plaintiff asserts the parties agreed on the amount without reference to the Child Support Guidelines. The DJOD also required plaintiff to maintain $100,000 in life insurance to secure his support obligation.

Neither party sought to modify plaintiff's child support obligation until January 28, 2013, when plaintiff filed a motion to reduce his weekly payments. Due to cost of living adjustments made over the years, plaintiff was currently required to pay defendant $149 per week, plus $45 per week toward his arrears.

In his January 2013 motion, plaintiff stated he was employed "as a computer draftsman" at the time of the DJOD, but this work was not steady, and he was often unemployed. As a result, he fell into arrears. Plaintiff certified that, in 2008, he began having health problems and, in 2009, he "had triple bypass heart surgery." In 2010, he got a job working in the mail room of a Pennsylvania public agency. Plaintiff submitted a fully documented Case Information Statement (CIS) with his motion, which indicated that he earned $26,955 in employment in 2012. In addition, plaintiff began receiving social security benefits when he turned sixty-two in 2011 and, in 2012, his monthly benefit was $1,151. Plaintiff stated that he did not know whether the parties' child was attending college or if she was employed and he asked defendant to provide documentation of the child's status.

Defendant filed a cross-motion in opposition to plaintiff's motion. Defendant also supplied a fully documented CIS, which stated that she earned $67,989 in 2012. Defendant certified that the parties' child, then age twenty-one, was a full-time college student, although it is not clear how much progress she had made at that point toward her degree. Defendant stated the child continued to live with her at home while attending college.1 In 2012, the child earned $6,425 working as a waitress. Defendant asked that plaintiff be required to: "become current in his child support arrears;" contribute toward the child's college expenses; and provide proof he was maintaining life insurance for the child's benefit.

In a February 22, 2013 order, the court denied plaintiff's motion to modify his child support obligation without prejudice. The court ordered plaintiff to continue to pay $149 per week in child support, plus $45 per week towards his arrears. The court also directed the Probation Department to conduct a review of plaintiff's arrears to determine the full amount due. The court reduced plaintiff's life insurance obligation from $100,000 to $50,000 and ordered plaintiff to provide proof of coverage within thirty days. The court denied defendant's motion to require plaintiff to contribute toward college expenses. The court made no findings of fact in support of any of these directives. Thereafter, the Probation Department prepared a report stating that plaintiff's arrears were $19,419.58 as of March 25, 2013.

Immediately after his receipt of the report, plaintiff renewed his motion to modify his child support obligation. In his March 28, 2013 motion, plaintiff again asked that support be recalculated based upon the parties' current incomes and the changes in their child's status, since support was last determined in the January 7, 1999 DJOD. Plaintiff also asked that his life insurance obligation be further reduced or eliminated. He provided documentation from an insurance broker indicating it would cost "about $400 per month" to obtain $50,000 in life insurance and that "there would be a two year waiting period before any claim" could be made. Defendant opposed the motion.

On April 26, 2013, plaintiff's motion was denied following oral argument before a different judge. In a very brief "memorandum of decision," which essentially summarized the parties' contentions, the judge stated that he denied "[p]laintiff's request to modify his child support obligation as there has been no substantial change in circumstances to warrant same since the entry of the February 22, 2013 Order." The judge made no findings of fact concerning whether there had been a change in circumstances between January 7, 1999, the date plaintiff's child support obligation was established, and January 28, 2013, the date plaintiff filed his motion to modify the support. The judge also denied plaintiff's motion to reduce his life insurance obligation without making any findings on the issue to explain his ruling. This appeal followed.

On appeal, plaintiff argues the judge erred in denying his motion to reduce his child support and life insurance obligations based on the changed circumstances demonstrated in each party's motion papers. We agree.

Child support orders are subject to modification pursuant to N.J.S.A. 2A:34-23 upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). The motion judge may revise child support when the party seeking modification satisfies the burden of showing a change of circumstances warranting relief or alteration of the prior order. Id. at 157. Significant changes in the income or earning capacity of either spouse, or in the circumstances of their children due to various events, including attending college, may result in a finding of changed circumstances. Colca v. Anson, 413 N.J. 405, 415-16 (App. Div. 2010); W.S. v. X.Y., 290 N.J. Super. 534, 539 (App. Div. 1996). "[T]he changed-circumstances determination must be made by comparing the parties' [and their children's] financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).

The party seeking to modify a child support order bears the burden of establishing that the changed circumstances are substantial enough to warrant the relief sought. Lepis, supra, 83 N.J. at 157. We have recognized that the failure to address the supporting spouse's claims of changed circumstances is error warranting reversal of the denial of relief and a remand for further proceedings. Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997).

Applying these principles here, we conclude the judge mistakenly exercised his discretion when he denied plaintiff's motion to modify his support obligations. For purposes of determining whether there had been a change of circumstances warranting a modification of support, the key dates were January 7, 1999, the date the last, and indeed only, order fixing plaintiff's support obligations was entered, and January 28, 2013, the date plaintiff filed his initial motion to reduce support. Beck, supra, 239 N.J. Super. at 189-90. While the DJOD is silent as to the parties' incomes at the time support was set in 1999, plaintiff certified without contradiction that his income had fallen since that time to $26,955 from earnings in employment, plus $1,151 per month in social security benefits. At the same time, defendant's yearly income had risen over the years to $67,989. Moreover, at the time of the DJOD, the parties' child was only seven years. She was twenty-one at the time of plaintiff's motion, attended college, and earned $6,425 from employment in 2012.

The judge failed to consider the undisputed changes in the parties' respective incomes since 1999, and the parties' child's maturation, college attendance, and own income in denying plaintiff's motion for a modification of child support. Instead, the judge found there had been no change of circumstances since the time of the prior judge's February 22, 2013 order denying modification. However, that order denied plaintiff's motion without prejudice pending the completion of the Probation Department report. It did not "fix" child support and, therefore, the fact there had been no change in circumstances between the February 22, 2013 order and March 28, 2013, the date of plaintiff's motion, was of no moment. Beck, supra, 239 N.J. Super. at 189-90. Because the judge did not examine the appropriate time period, or make any findings of fact, we are constrained to reverse the denial of plaintiff's motion for a reduction of his child support obligation and remand for a full consideration of plaintiff's motion.

We are also satisfied the judge did not make adequate findings with respect to plaintiff's motion to reduce his life insurance obligation. N.J.S.A. 2A:34-23 permits the court to "require reasonable security for the due observance" of child support orders. (Emphasis added). As in this case, such "reasonable security" is often provided by the payor spouse maintaining life insurance in an amount appropriate to secure the support obligation for the benefit of the child. Grotsky v. Grotsky, 58 N.J. 354, 361 (1971). In this case, the requirement in the DJOD that plaintiff maintain $100,000 in life insurance to secure his child support obligation was clearly appropriate at that time.

However, at the time of plaintiff's March 28, 2013 motion, the child was over twenty-one, attending college, and earning income on her own. Plaintiff was $19,419.58 in arrears, but even if his $149 weekly obligation was not reduced, his future annual obligation would be just $7,748. Under these circumstances, we cannot conclude that requiring plaintiff to maintain $50,000 in life insurance constitutes "reasonable security" for plaintiff's current and future support obligation under N.J.S.A. 2A:34-23.

We therefore reverse the April 26, 2013 order denying plaintiff's motion to modify his child support and life insurance obligations and remand for further proceedings.2 The judge should determine the nature and extent of any further discovery that may be necessary and whether a plenary hearing is required to resolve any genuinely disputed factual issues.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

1 The parties' DJOD did not require plaintiff to contribute toward the child's college expenses and he never did so.

2 In light of this disposition, we do not address plaintiff's claims concerning his alleged late receipt of a tentative decision on his motion, and his complaint that the motion judge permitted defendant to file a late cross-motion. We trust that, on remand, the judge will scrupulously ensure that each party's procedural rights are protected.