Child Support and Out-of-Home Residence at Boarding School: The Logical Extension of College Support Analysis | Fox Rothschild LLP


The Appeal Division Decision of July 6, 2021 follows nearly a decade of post-judgment divorce litigation between the parties. The defendant appealed three (3) family orders which (1) dismissed his motion to reopen an arbitration award; dismissed his request for reconsideration; and, dismissed his request to change his child support obligation. The plaintiff’s cross-appeal also contested three (3) orders relating to the family part which refused several requests for reparation contained in various requests. As the Appeal Division noted at the outset: there was “no reason to interfere with any of the impugned decisions, with one exception”. This exception, although part of a unreported decision of the appeal division and therefore non-binding on lower courts, offers clarification regarding the modification of child support for a child residing far from home, in particular at the boarding school.

As the New Jersey Supreme Court ruled in Faherty vs. Faherty, 97 NJ 99, 222 (1984): “child support [is] always subject to modification for changed circumstances… ”In accordance with Lepis vs. Lepis, 83 NJ 139 (1980), the onus is on the requesting party to demonstrate a change in circumstances justifying a modification. After review by the Appeal Division, denials of requests to vary child support are reviewed to determine whether, on the facts, the trial court abused its discretion. In any event, “an award will not be changed unless it is manifestly unreasonable, arbitrary or clearly contrary to reason or other evidence, or the result of a whim or whim” . Foust vs. Glaser, 340 NJ Super 312, 315-16 (App. Div. 2001). It is a well-established law in the State of New Jersey that a child living in college, that is, away from home, is a change of circumstances justifying the revision of a maintenance obligation for children. Jacoby vs. Jacoby, 427 NJ Super. 109, 118 (App. Div. 2012).

In Baeszler vs. Baeszler, the parties were married in September 1994. They had two children together: a daughter, born in 1999, and a son, born in 2003. The parties divorced in August 2008 by a double divorce judgment, which repeated their memorandum understanding. The parties almost immediately embarked on a post-judgment dispute over the defendant’s child support obligation and education expenses relating to the parties’ daughter. Due to the defendant’s refusal to cooperate in the payment of the girl’s school fees and related expenses, the plaintiff was granted sole custody of the two children in August 2015.

Fast forward three (3) years later, the Applicant’s request to enroll the parties’ son in a residential school in Pennsylvania was granted. In response, the defendant decided to change his child support obligation due to a significant change in circumstances as their son would be living away from home during the school year. The defendant’s motion was dismissed, in part because the trial court determined that disrupting the award of child support would disrupt other aspects of the arbitration award.

The Appeal Division’s “one exception” was its clear agreement with the defendant that the trial court erred in not allowing a review and variation of his child support obligation. In agreement with the defendant, the Appeal Division extended the well-established law (that a child residing in university was a change of circumstances justifying the review and possible modification of a child support obligation) to the field of boarding school. By this extension, the law has not changed. Rather, the Appeal Division noted that the same analysis is required: “Courts faced with the issue of the settlement of child support outside the home must assess all applicable facts and circumstances, by weighing the factors NJSA 2A: 34-23a. ” Jacoby, above to 113. The factors of this law are as follows:

  • Needs of the child;
  • Standard of living and economic situation of each parent;
  • All sources of income and assets of each parent;
  • Earning capacity of each parent, including educational background, training, job skills, work experience, childcare responsibility, including the cost of childcare and the length and cost of each parent to get training or experience for a suitable job;
  • Child’s need and capacity for education, including higher education;
  • Age and state of health of the child and of each parent;
  • Child’s income, assets and earning capacity;
  • Responsibility of parents for court-ordered support of others;
  • Reasonable debts and responsibilities of each child and parent; and
  • Any other factor that the court may deem relevant.

The trial court simply missed the mark. Its reasoning for rejecting the defendant’s request to review and vary child support was insufficient because it was based solely on the following quote: “[the] The arbitration award anchors child support so much with other payments and expenses that disrupting that number would disrupt many other aspects of the award. “The trial court gave this ground without a thorough analysis of all the arguments of the parties on the issue. Indeed, it did so without the benefit of a full hearing. The Appeal Division overturned this part of the order of June 24, 2019 and referred the matter back to the court of first instance for further examination with a specific directive: “the court of first instance must provide reasons on the record to support its decision to allow or deny the defendant’s motion to vary child support.

While boarding is an extremely niche situation, the overall message is pretty clear by the Appeal Division. His decision to extend the well-established law was preceded by the word “logically”. What other alternative life situations for children might see this well-established law continue “logically”? The ripple effects of this extension to the boarding school are unknown given the recent decision. There is no doubt that parties who change child support based on the fact that children reside away from home, anywhere, will rely on the “logical” extension of the Division’s law. ‘call. However, in such a mobile society where children often reside elsewhere for long periods of time – whether with their grandparents, college, boarding school, camp, or whatever – it is difficult to determine how far the well-established law can be extended. .

It would appear that the Appeals Division, at least in this case, is ordering the trial court not to adopt a in itself approach to these circumstances. On the contrary, a child residing outside the home requires an examination of all the circumstances, whether it is a college, a boarding school or elsewhere.

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