NANCY COWIE v. ROBERT COWIE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NANCY COWIE,

Plaintiff-Appellant,

v.

ROBERT COWIE,

Defendant-Respondent.

________________________________________________________________

October 23, 2014

Submitted September 30, 2014 - Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-487-10.

Goldstein Bachman & Newman, L.L.P, attorneys for appellant (Howard A. Bachman, of counsel; Sebastian Ferrantell, on the briefs).

Law Offices of John A. Patti, attorneys for respondent (John A. Patti, on the brief; Caitlin DeGuilo Toker, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from the portion of the Family Part's May 13, 2013, order denying her motion to reconsider, modify and adjust the defendant's child support obligation retroactive to the date which he ceased exercising overnight parenting time with the parties' children. We reverse and remand for further proceedings.

The parties were married in 1999 and had two children: a son born in 2001, and a son born in 2003. The parties were divorced on February 2, 2011. The parties entered into a property settlement agreement (PSA) on that same date. Pursuant to Article 2 of the parties' PSA, they were to have joint legal and residential custody of the children. A Memorandum of Understanding (MOU) was attached to the PSA as a schedule. Pursuant to the MOU, the parties were to share equally in parenting time. Child support was calculated pursuant to the Child Support Guidelines (Guidelines) based upon a 50/50 parenting schedule. The child support was calculated using a shared parenting worksheet with an acknowledgment of defendant's actual shared parenting time.

Thereafter, defendant experienced mental health issues. On May 3, 2012, plaintiff sought entry of an order to show cause requesting temporary sole legal and residential custody of the children and a suspension of defendant's parenting time. The Law Division judge granted plaintiff temporary legal and residential custody of the minor children. On May 29, 2012, the return date of the order to show cause, the trial court continued the custody status by maintaining sole legal and residential custody of the children with plaintiff. A supervised parenting schedule was established that did not provide defendant with overnight visitation. Since the date of the order, defendant has not had overnight visitation with the children. Defendant has not had any visitation with the children since October 7, 2012.

In January 2013, plaintiff moved for a modification of defendant's child support based upon the custody modification. The judge denied the motion predicated upon the "temporary custody arrangement." After the judge denied plaintiff's motion for reconsideration, she filed this appeal.

Plaintiff's application to modify support is governed by well-settled principles. A party seeking to modify child support has the burden to present a prima facie showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Support orders are always subject to review and modification upon such a showing. Id. at 146; see also N.J.S.A. 2A:34-23 (stating that child support orders "may be revised and altered by the court from time to time as circumstances may require."). Lepis and its progeny generally address changed circumstances through the prism of a supporting spouse's ability to pay, usually premised upon a reduction of the payor's stream of income. See Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

Here, there has been changed circumstances in the parenting time of the parties. The change in custodial status was in recognition of the incapacity of defendant and the impact of the incapacity on his ability to provide appropriate parental supervision. At the time the orders were entered, there appeared to be no contemplation of the duration of defendant's incapacity.1 As we noted, the trial judge denied plaintiff's motion based upon the "temporary" nature of the changed circumstances. A court may reject "requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Lepis, supra, 83 N.J. at 151; Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009).

In Larbig, we stated

There is, of course, no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation. Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented, which we do not disturb absent an abuse of discretion.

[Larbig, supra, 384 N.J. Super. at 23.]

Whether a timeframe is temporary should be viewed through the lens of the purpose of child support. The purpose is to ensure that children receive the financial support that is needed. Here, the financial burden associated with child-rearing has been shifted entirely to the plaintiff. Plaintiff's child-related expenditures have been increased. There has been nonconformance with the shared-parenting schedule since May 2012.2 Under these "relevant circumstances," employment of a rubrical analysis of temporality conflicts with, rather than serves, the children's entitlement to sufficient support.

Appendix IX-A, "Considerations in the Use of Child Support Guidelines," addresses noncompliance with a shared-parenting plan in conjunction with an adjustment to child support. If the child support award is based upon shared-parenting time and there is noncompliance over a "reasonable" period, the child support award shall be recalculated to reflect the actual parenting time that is being exercised. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2642 (2015). This "reasonable" time period is wholly consistent with the principle that children should not be denied adequate support to meet their needs. Here, the timeframe of the changed circumstances presented satisfies the reasonable time period consideration contemplated by the Guidelines.

We reverse the Law Division judge's orders denying plaintiff's motions. The matter is remanded for further proceedings consistent with an appropriate modification of the child support retroactive to January 2013. We note that a child support determination rests upon the parental resources available for the benefit of the child. On remand, we leave for the trial judge to determine those resources in the calculation of the child support formula.

Reversed and remanded. We do not retain jurisdiction.

1 As of March 8, 2013, the duration of defendant's capacity remained uncertain. The order of that date extended the custodial relationship established in the May 2012 orders for an indefinite period of time.

2 We do not consider it a relevant factor that defendant has not willfully failed to comply with the parenting time schedule.