Terminating child support for children with special needs

On October 3, 2018, the New Jersey Appellate Courts rendered an unreported decision on a case about emancipating a child with disabilities.  (S.E. v. B.S.B. (A-0485-17T2)) 

According to New Jersey statutory law, a parent’s continuing obligation to provide child support presumptively ends when the child turns 19 years old, unless a different date is ordered by the Court.  However, even if a different date is ordered, the support cannot continue beyond the child’s 23rd birthday (except under exceptional circumstances). 

In S.E. v. B.S.B., the child receiving support was 23 years old, born with cerebral palsy, and diagnosed Attention Deficit/Hyperactivity Disorder (ADHD).  The child’s mother filed a motion with the trial court for an order compelling the child’s father to continue providing support even though the child had reached the statutory maximum age.  The child had graduated high school, was working towards earning an Associate’s Degree, and had applied to numerous jobs (without success).  The child’s mother advised the Court that she had obtained social security disability benefits for the child and that he was also utilizing services available through social service agencies.  The Court noted that the child’s father’s testimony was limited, because he basically never had any meaningful contact with his child. 

The trial Court terminated the father’s child support obligation.  The trial court opined that the mother did not provide any current medical evidence that indicated that the child’s cerebral palsy was so severe that the child required a parent to provide financial support beyond the age of 23.  The trial court also remarked that the child was able to attend physical therapy on his own, was able to work, and could be self-sufficient. 

The child’s mother appealed.  The Appellate Court agreed with the Trial Court’s findings, summarizing their thoughts by citing 2 governing statutes (N.J.S.A. 2A:17-56.67(e), and N.J.S.A. 2A:34-23(a)).  The Appellate Court stated that when the 2 statutes are read together, they mean that “if an adult child suffers from a disability but is self-sufficient, he is generally considered emancipated beyond the sphere of a parent’s legal, if not moral, obligation.” (citing Kruvant v. Kruvant, 100 N.J. SUPER. 107, 119 (App. Div. 1968).  The Appellate Court commented that the record showed that the child was independent in most of his daily living activities.  The Appellate Court summed up its decision by stating that the mother in this case bore the burden of rebutting the presumption of her child’s emancipation as a matter of law, and that even though her concerns for her child’s future well-being and financial security were genuine, she had not overcome the presumptive emancipation in accordance with the 2 governing statutes. 

M.B. v. D.B.: Social Security Disability Benefits and Child Support

On October 5, 2018, the Appellate Division handed down an unpublished decision in M.B. v. D.B., a case that was appealed from Mercer County Superior Court, Family Division.

The parties signed a settlement agreement at the time of their divorce in October 2010.  The parties agreed to share joint legal custody of their 11 year old and 13 year old children, and that M.B. would be the parent of primary residence (PPR).  The parties also agreed that D.B. would pay child support to M.B.

In July 2011, M.B. was checked into an alcohol and drug abuse treatment center, and relinquished custody of the children to D.B.  The Court terminated D.B.’s child support obligation in September 2011.  In December 2011, the Court ordered M.B. to pay child support to D.B. (which she did not start paying until June 2012).  In 2011, M.B. began receiving Social Security Disability (SSD) benefits for herself and the children.  M.B. also received a lump sum payment for a period prior to the parties’ divorce.  M.B. kept the SSD benefits paid to her for the children’s benefit because she felt that “she was the one disabled and she was paying child support.”  M.B. also testified that she had “absolutely no idea what [she] did with any money . . . blew it.”

The SSD benefits that M.B. received were greater than the amount of child support she was paying to D.B.  Basically, M.B. was making a net profit from the SSD payments that were supposed to be for her children’s benefit.

After a 3 day trial in May 2016, the Court issue an Order for M.B. to pay D.B. $74,584 for the SSD benefits she received for the children but kept for herself .  The Order also allowed D.B. to deduct the money from his payments to M.B. for alimony due to her over the subsequent 9 years.

M.B. appealed.  The Appellate Division noted that the trial court had carefully calculated the SSD payments M.B. received during

1) The period prior to the parties’ divorce (D.B. was awarded all funds);

2) The period when M.B. still had custody of the children (D.B. was awarded no funds);

3) The period when D.B. had custody and M.B. paid no support (D.B. was awarded all funds); and

4) The period when D.B. had custody and M.B paid support (D.B. was awarded the difference between what she paid and the SSD benefits she kept).

The Appellate Court affirmed the Trial Court’s decision, opining that that SSD benefits paid on behalf of children belong to the children, and should be paid to the custodial parent, and if a non-custodial parent’s child support obligation is greater than the benefit paid, they need to make up the difference. 

Exceptional circumstances lead to open durational alimony!

On August 31, 2018, the Appellate Division issued an unpublished decision in B.G. v. E.G.  This was a Union County case where after a 23 day trial, the court issued an 83 page letter opinion and Final Judgment of Divorce.  Defendant appealed from several portions of the Final Judgment of Divorce.  Plaintiff cross-appealed.

One of the most contested aspects of the case was the trial court’s decision to order open durational alimony following the parties’ 14 year marriage despite of the statutory alimony changes in 2017 wherein the standard for open durational alimony became 20+ years or “exceptional circumstances.”  In this case, the parties began dating in 1988, began living together between 1992 and 1994, had their first child in 1994, and got married in 2000.  The parties had three more children during the marriage.  Plaintiff filed her Complaint for Divorce on April 1, 2014.

At the time of trial, Plaintiff was a stay-at-home parent, as she had been for the duration of the marriage.  Defendant was unemployed but had a 5 year income average of approximately $132,000.  The parties and their four (4) children and lived a middle-class lifestyle.   Plaintiff sought open durational alimony.

The oldest child was emancipated by the time the trial concluded.  Defendant was designated as PPR (Parent of Primary Residence) of the second child and Plaintiff as PPR of the parties’ third and fourth child.  The court noted that the parties’ third child (who was 11 at the time of trial) had special needs.  The court recognized that the child is on the autism spectrum, has pervasive developmental delays and attends a special school.   The court further recognized that it was expected that this child would require continued care in the future beyond the age of 21.

While the parties had been married for 14 years, the court commented that they were a “monogamous couple” for 20 years.  The court also noted that the parties lived together in an “economically exclusive and supportive relationship” since 1992 and therefore the trial court did not rely solely on the date of marriage to determine the length of the married but considered the parties’ marriage to be “equivalent to a long-term marriage of over 20 years” and in light of this, the court awarded Plaintiff open durational alimony.

Defendant appealed several provisions of the Final Judgment of Divorce, including the portion regarding open durational alimony.  Defendant argued that N.J.S.A. 2A:34-23(c) limits the duration of alimony to the length of the marriage unless there are “exceptional circumstances”

While the Appellate Court did not agree that the prenuptial circumstances were independently the basis for “exceptional circumstances”, they found that there was other substantial credible evidence in the record to support a finding of “exceptional circumstances” that, when combined with the prenuptial circumstances, warranted open durational alimony for a marriage of 14 years.  The Appellate Court specifically outlined the fact that Plaintiff did not maintain career readiness as she was caring for the children and the parties’ home; highlighted the extensive responsibilities Plaintiff has had and will continue to have relative to being the primary caretaker for the parties’ child with special needs and reasoned how those responsibilities limit Plaintiff’s job availability.

The lesson to be learned from B.G. is that here is that “exceptional circumstances” may create an opportunity in the law that, at first glance, you might not have thought existed.

 

 

 

 

Meeting halfway

  
How do you and your co-parent arrange parenting time exchanges?   Does one parent do all the driving?   Do you share the driving?   The Court recently opined that parents should meet halfway!



In the recently decided (Sept. 5th) Appellate Division case of Devorak v. Devorak, a Father appealed a trial court’s decision that required the parties to share the driving responsibilities to facilitate his alternate weekend parenting time with their 9 year old child.

Father filed a motion at the trial court level seeking, among other things, an Order compelling the parties to equally share the driving responsibilities relative to his parenting time.  Mother filed a cross-motion compelling Father to “be required to do all the traveling in connection with his visitations.”

The deadlock arose from both parties’ history of moving between residences following their divorce.  At the time of their divorce, both parties lived in Woodbridge.  As per the parties’ Agreement, Father did the pick-ups and drop-offs for his alternate weekend parenting time.

However, Mother then moved to New York City and the parties entered into a consent order wherein Father agreed to continue doing all transportation relative to his parenting time, pending Mother’s relocation back to New Jersey.  Unfortunately, the parties’ consent order did not set forth a specific plan as to what the parties’ transportation arrangements would be after Mother effectuated her move, nor did it delineate a distance from Father or area wherein she would move.

Eventually, Mother moved to Roseland, New Jersey and Father moved to Ewing, New Jersey, which is approximately 1 hour and 35 minutes away (per GoogleMaps).

The Court found that Father “established a significant change in circumstances warranting a modification of a prior order regarding pick up and drop off….”. The trial Court also stated that “it is fair and equitable [for the parties] to share in the transportation responsibility” and ordered the parties to “agree to a pick up and drop off location equidistant between their current residences.”

On appeal, Mother argued that the trial court made an error in entering an order that modified the parties’ divorce agreement, and that Father did not have to pay alimony and paid “modest” child support in exchange for having agreed to do all the driving for parenting time. Mother also argued that she had to do all of the transportation for her other child from her subsequent marriage in support of her position.  The Appellate Court was unimpressed with Mother’s arguments, and affirmed the trial court’s findings that the parties should MEET HALFWAY.