Changes in parenting responsibilities may include a change in circumstances to increase support | Fox Rothschild LLP

Alimony is generally modifiable if a substantial and persistent change in circumstances can be demonstrated. When we think about changes in circumstances in this regard, we typically consider financial changes in circumstances related to the income of the payer or recipient. Although this is allowed, we do not often view custody and parenting time issues as a change of circumstances to achieve discovery and a full hearing to modify child support.

However, in Dong v. Li, an unreported (non-precedential) Appellate Division decision released on February 23, 2024, parenting time issues were the key reason for overturning the court's ruling.

The relevant facts are as follows. The parties divorced in 2018. Their Marital Settlement Agreement (MSA) recognized that they had an autistic son who might never be emancipated and provided for 19 years of temporary alimony. At the time of the divorce, the parties had 50-50 parental leave. The husband's income was $238,000 and the wife's income should be counted at $10,000 for the first two years and $40,000 thereafter (i.e. to enable the wife to work for two years), where the maintenance was reduced at this point. The MSA contained the typical clause that neither party could maintain the marital lifestyle. After the divorce, the husband and his new wife permanently moved to California for a new job. By 2021, the husband's income increased to over $480,000, but the wife never received employment that came close to the imputed income.

Accordingly, in 2022, she filed a petition to increase alimony based on her husband's higher income and shorter parenting time. Husband Cross filed a motion to enforce the credit in the MSA. The trial court denied the wife's motion and enforced the imputed income, although it noted that the wife “…argued that “the change in parenting responsibilities ha.”[d] influenced
their ability to have a better job” and that “there [wa]That doesn't work. . . she c[ould] Because of her time commitment, she gets a job where she makes $40,000 a year [their son].” The wife appealed, arguing that the judge erred in denying her request for a full hearing on the grounds that her circumstances had changed. The Appellate Division agreed and reversed the matter.

As to the issue of changed circumstances, the Appellate Division held that the husband's “…relocation to California undeniably resulted in a significantly increased time for the defendants' parents, in addition to their additional responsibility to care for their son for over eighteen months.” Homeschooling.”
The pandemic showed the changed circumstances at first glance.” They also noted:

“Specifically, defendant's time spent parenting with the parties' special needs son increased by over 35 percent, and she testified that her increased parental responsibilities impacted her employability. The judge also overlooked the fact that after the defendant moved, the plaintiff acquired greater parental responsibility as the only parent in the state where the child lived. Notably, the majority of the plaintiff's modified parental leave extended over four weeks
August. Our Supreme Court made it clear that a parent's reasonable belief “that she can only accept employment positions that provide her with scheduling flexibility to meet the unique needs of her children should be given appropriate consideration.” Crews, 164 NJ at 36. Sharing of findings and a full hearing were warranted.

In short, the Appellate Division found error when the trial court failed to consider the extent of the impact on the wife's employability resulting from her extended time as a parent. Additionally, the court noted that “the husband’s higher income relative to the parties’ marital standard of living is also in dispute” and therefore warrants disclosure and a full hearing.

The court also noted that “pursuant to NJSA 2A:34-23(c).”[a]n Granting of maintenance. . . Perhaps
“either due to changed circumstances or due to the non-occurrence of circumstances which the court had found at the time of the award”, whereby the court must re-examine the statutory maintenance factors.

Although it would have been easy in principle to allow the parties to agree on credit, it was not fair to do so when the facts regarding parenting responsibilities had changed.

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