NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3684-98T5
Submitted: December 14, 1999 - Decided: February 18, 2000
Before Judges Wallace, Jr., Lesemann and
On appeal from the Superior Court of New
Jersey, Chancery Division, Essex County.
Karen I. Maier, attorney for appellant.
Mink & Meislik, attorneys for respondent
(Karen Meislik, on the brief).
The opinion of the court was delivered by
WALLACE, JR., J.A.D. I
This appeal arises out of the Family Part's post-judgment
order modifying defendant's child support obligation, but denying
his request to alter the beneficiary designation on his life
insurance policy to include his new wife and daughter. On appeal,
defendant argues the trial judge erred: (1) in calculating his
modified child support under the guidelines, and (2) in denying his
application to amend the beneficiary designation on his life
insurance policy to include his wife and daughter from his
subsequent marriage. Further, defendant claims these errors were
of constitutional dimension. We reverse and remand for
Plaintiff is a forty-three year old teacher and defendant is
a forty-eight year old employed by a public school board. The
parties were married on February 14, 1981. One child, Richard, was
born of the marriage on March 31, 1986. A final judgment of
divorce was entered on August 10, 1992. The judgment incorporated
the parties' partial property settlement agreement, which resolved
equitable distribution and counsel fees. The remaining issues,
including child support, custody, and life insurance, were resolved
at trial. The parties were awarded joint legal custody of Richard,
with plaintiff having primary residential custody. Based upon the
parties' combined income of $77,985 ($21,092 for plaintiff and
$56,893 for defendant), plaintiff was awarded child support of $180
per week. Each party was entitled to claim Richard as a tax
deduction in alternate years. The final judgment also provided
shall maintain his current life insurance
policy through his employment which equals
3 ½ times his salary, naming [plaintiff], as
Trustee Beneficiary for the benefit of the
Child. If [defendant] terminates his current
employment, he shall obtain a term policy of
In November of 1997, defendant married Karen I. Maier, an
attorney who is representing him in this appeal. They have one
child, Imogene, born on March 30, 1998.
On May 28, 1998, defendant filed a motion seeking a reduction
in his child support obligation based upon changed circumstances
and a modification of the final judgment of divorce amending the
beneficiary designation on his life insurance policy to include his
new wife and child. In support of that motion, defendant submitted
his joint 1997 federal income tax return where he claimed $86,733
in joint adjusted gross income, $5,024 in Maier's business losses,
and a $3,954 tax refund.
In further support of the motion, defendant submitted a "Child
Support Guidelines - Shared Parenting Worksheet" (Shared Parenting
Worksheet) in accordance with R.
5:6A (Child Support Guidelines)
and Pressler, Current N.J. Court Rules
Appendix IX-D (2000).
Defendant listed on line 1 joint weekly gross taxable income of
$1,346.15 for plaintiff and $1,587.83 for himself. He subtracted
mandatory weekly retirement contributions of $63.13 for plaintiff
and $70.55 for himself. He also subtracted from his gross income
a $211.11 weekly other-dependent deduction which he calculated on
a separate Child Support Guidelines - Sole Parenting Worksheet. He
listed Maier's weekly gross income as $80.12. Defendant also
considered that Richard spent 57" of his overnights with plaintiff
and 43" with him, to compute an adjusted weekly child support
payment under the guidelines of $63.99.
Defendant noted in his certification that in compliance with
the final judgment of divorce, he had maintained a life insurance
policy through his employer which, upon his death would pay three
and a half times his salary, or approximately $245,000, for
Richard's benefit. Defendant claimed the present value of his
remaining child support obligation to Richard, including college
expenses, totaled approximately $42,000. Thus, he argued the
current value of the life insurance policy was nearly six times
greater than the amount necessary to secure his support obligation
for Richard, and requested authorization to add Imogene and Maier
In her responsive certification, plaintiff conceded that based
on the increase in the parties' respective incomes defendant had
established changed circumstances. However, she alleged
defendant's financial resources had increased far greater than hers
because defendant had received a $20,000 increase in salary and a
six figure bequest from his father's estate. She also argued Maier
was underemployed, and therefore, the judge should impute $93,641
annually, or $1,800.80 per week to Maier in calculating the other
dependent deduction. Plaintiff certified she earned $50,497 in
1997, with a weekly gross of $971 and a weekly net of $816. In her
case information statement (CIS) plaintiff listed monthly net
income of $3,508.80 with expenses of $3,500. Thus, she claimed any
reduction in child support would "substantially" affect her ability
to maintain Richard's standard of living.
Plaintiff also submitted a Sole Parenting Worksheet. She
calculated that defendant's adjusted weekly child support
obligation under the guidelines totaled $185.34 per week. However,
in making that calculation, plaintiff failed to include an
adjustment for defendant's other-dependent deduction or for the
percentage of overnights Richard spent with defendant. Plaintiff
asserted the final judgment of divorce required defendant to
maintain the life insurance policy for Richard's benefit, not to
secure child support payments, and thus, the insurance was not
subject to modification.
In response, defendant admitted that both of the parties'
salaries had increased since the entry of the final judgment of
divorce. However, he argued plaintiff's salary had increased by
$29,404 or 139%, while his salary had increased by only $25,674 or
45%. Additionally, he submitted a CIS which showed $5,431 in
monthly expenses and claimed a monthly deficit of $614. Defendant
also submitted an amended Shared Parenting Worksheet, listing
plaintiff's gross weekly income for 1997 in the amount of $971,See footnote 11
resulting in an adjusted weekly child support obligation of $85.05.
In further support of defendant's motion, Maier certified she
earned $80.12 in gross weekly taxable income, the amount used in
calculating defendant's other-dependent deduction. She explained
that in 1992, she was terminated from her position as a corporate
attorney. She remained unemployed for two years despite her best
efforts to find employment. In July of 1994, she finally found a
part-time position, but that firm disbanded in July of 1995. In
September of 1995, she obtained a full-time position with a law
firm, but several months later that firm also disbanded. Finally,
in January of 1997, Maier established a solo law practice, where
she remained at the time of the motion.
Oral argument on the motion was held on June 26, 1998. The
argument was primarily focused on Maier's alleged underemployment
for purposes of determining defendant's other-dependent deduction.
The trial judge found defendant established a prima facie case of
changed circumstances and scheduled a plenary hearing. However, he
stated that enough information had been presented to determine that
plaintiff earned $1,038 gross a week ($54,000 . 52) and defendant
earned $1,588 gross a week ($82,576 . 52). The judge concluded he
would impute income in the amount of $14,000 per year to Maier.
The judge applied the "SupportCalcac®" software program, which was
developed to assist judges in calculating child support according
to the guidelines, to estimate that defendant would be entitled to
a $196 per week other-dependent deduction and would owe $67 per
week in adjusted child support payments.
However, the judge did not reduce defendant's child support
obligation based upon these preliminary calculations because he had
ordered a plenary hearing. The judge permitted limited discovery
by both parties and set a return date for the plenary hearing.
On November 2, 1998, plaintiff filed a motion seeking to
remove Maier as counsel for defendant because Maier was a fact
witness in the case. This motion was denied by order dated
December 4, 1998.
On that same date, the parties agreed to conclude discovery
and allow the trial judge to decide the child support and life
insurance issues on the basis of the record. Meanwhile, defendant
submitted an updated Shared Parenting Worksheet in which he
included an additional $2,000 per year in tax-sheltered investments
as part of plaintiff's gross income. Defendant calculated his
weekly child support obligation to be $77.78.
On February 8, 1999, the trial judge entered an order reducing
defendant's child support obligation to $111 per week in accordance
with the child support guidelines, and attached the Shared
Parenting Worksheet to the order. In addition, the judge denied
defendant's request to modify the beneficiary designation on his
life insurance policy because he found that defendant failed to
show changed circumstances or that such agreement was inequitable.
This appeal followed.
Defendant contends the trial judge erred in computing his
modified child support. Unfortunately, the judge made no findings
of fact or legal conclusions as required by R.
1:6-2(f). The judge
attached a Shared Parenting Worksheet to the order, but failed to
explain how he calculated child support.
We have frequently noted that an articulation of reasons is
essential to the fair resolution of a case. A judge has a duty to
make findings of fact and conclusions of law "on every motion
decided by written orders that are appealable as of right." R.
1:7-4(a). Failure to perform this duty "'constitutes a disservice
to the litigants, the attorneys and the appellate court.'" Curtis
83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v.
Board of Adjustment of Englewood
141 N.J. Super. 1, 4 (App. Div.
1976)). Moreover, "naked conclusions do not satisfy the purpose of
It is undisputed that defendant met his burden of making a
prima facie showing of changed circumstances. Lepis v. Lepis
83 N.J. 139, 157-59 (1980). See Miller v. Miller
160 N.J. 408, 420
(1999) ("[C]hanged circumstances such as child maturation,
increases in need, employment, or child emancipation may result in
a modification of support"). In determining whether changed
circumstances justifies modification of a party's child support
obligation, the judge must apply the child support guidelines as
set forth in R.
5:6A. The guidelines must be used as a rebuttable
presumption to establish and modify all child support orders.
, Current N.J. Court Rules
, comment on Appendix IX
A, ¶ 2 at p. 2079.
The judge may disregard the guidelines or adjust a
if a party shows, and the court finds, that
such action is appropriate due to conflict
with one of the factors set forth in sections
4, 7, 10, 13, 14, 15, or 20 of Appendix IX-A,
or due to the fact that an injustice would
result due to the application of the
guidelines in a specific case.
"The determination of whether good cause exists to disregard or
adjust a guidelines-based award in a particular case shall be
decided by the court." Ibid; Capaccio v. Capaccio,
321 N.J. Super. 46, 52 (App. Div. 1999); Hudson v. Hudson,
315 N.J. Super. 577, 583
(App. Div. 1998). "[T]he reason for the deviation and the amount
of the guidelines-based award (before any adjustment) must be
specified in writing on the guidelines worksheet or in the support
order." Capaccio, supra, 321 N.J. Super. at 53. The guidelines
also "include a mechanism to apportion a parent's income to all of
his or her legal dependents regardless of the timing of their birth
or family association . . . ." Pressler, supra, Current N.J. Court
Rules, comment on Appendix IX-A, ¶ 10 at 2086-87. Thus, if a party
has other legal dependents, the basic child support obligation may
require an adjustment. Ibid. For example, where a divorced parent
remarries and has children, that parent's income should be shared
by all children born to that parent. Ibid.
Although we have found no published opinion regarding the
application of the other-dependent deduction, Appendix IX-A of the
court rules provides that in considering the use of this
adjustment, the trial judge should apply the following guidelines:
(1) this adjustment shall be used only if
requested by a serial-family parent and
the income, if any, of the other
parent of the secondary family is
provided to the court;
(2) if the other parent in the secondary
family is voluntarily unemployed or
underemployed, the court shall
impute income to that person . . .
to determine the serial family
parent's obligation to the children
in the secondary family;
(3) this adjustment may be applied to other
dependents born before or after the
child for whom support is being
(4) this adjustment may be requested by
either or both parents
(custodial and/or non-custodial);
(5) the adjustment may be applied when the
initial award is entered or during
subsequent modifications of the support
[Pressler, supra, Current N.J. Court Rules,
comment on Appendix IX-A, ¶ 10 at 2087.] III
Thus, in calculating the amount of the other-dependent
deduction as part of the adjustment, three separate support
obligation calculations must be prepared: 1) a theoretical support
obligation for the other-dependent in the alternate family; 2) a
support obligation that includes the other-dependent deduction; and
3) a support obligation that does not include the other-dependent
deduction. Id., comment on Appendix IX-B at 2111.
Here, defendant complied with these requirements. He
requested the adjustment, submitted his joint income tax return
evidencing Maier's income, and submitted the three separate support
obligation calculations. In initially projecting defendant's child
support obligation under the guidelines, the trial judge stated he
could impute $14,000 annually in income to Maier, and that
defendant would be entitled to a $198 other-dependent deduction.
That finding, however, was not binding upon the parties as
discovery and a plenary hearing were to follow.
Nevertheless, in ultimately determining defendant's child
support obligation, the trial judge failed to calculate and apply
an other-dependent deduction or to explain why an other-dependent
deduction was not applicable. The attachment of the completed
child support worksheet to the order did not otherwise abrogate the
judge's obligation to make sufficient findings of fact,
particularly where defendant was facially entitled to an other
dependent deduction under the guidelines. See Elkin v. Sabo,
310 N.J. Super. 462, 470-71 (App. Div. 1998) (stating that guideline
applications must be based on the evidence and supported by a
statement of reasons).
Here, in calculating the amount of the other-dependent
deduction, the judge should determine whether Maier is voluntarily
underemployed, and if so, then determine how much income to impute
to her. Pressler, supra, Current N.J. Court Rules, comment on
Appendix IX-A, ¶ 10 at 2086-87. The judge initially denied
plaintiff's request to impute $90,000 in annual income to Maier,
and stated he would impute $14,000 in income to her. However,
following discovery, he made no findings of fact regarding Maier's
income. Consequently, a remand is required to determine the amount
of income to impute to Maier and to compute the amount of the
Further, it was not disputed that plaintiff invested
approximately $65 per week through her employer in a tax deferred
annuity. Plaintiff did not include this amount on her Sole
Parenting Worksheet where she had represented that she earned $971
in gross taxable income per week. The motion judge accepted this
amount without including the amount of the deferred annuity.
The guidelines define gross income as "all earned and unearned
income that is recurring or will increase the income available to
the recipient over an extended period of time." Pressler, supra,
Current N.J. Court Rules, comment on Appendix IX-B at 2103.
Voluntary payments to deferred annuity plans and other similar
types of deferred compensation plans, unlike mandatory retirement
contributions, are optional at the election of the recipient.
Thus, these funds should be included in determining a party's
adjusted gross taxable income for purposes of calculating child
support. Id. at 2108. See e.g., Connell v. Connell,
Super. 426, 433-34 (App. Div. 1998) (finding that inherited funds
and the capacity to produce income may be used in calculating child
support notwithstanding that party placed inheritance in a non
income producing asset). Thus, under the guidelines, plaintiff's
voluntary payments to her deferred annuity plans should have been
included in her gross taxable income.
Defendant argues the trial judge erred in denying his
application to amend the beneficiary designation on his life
insurance policy to include Maier and Imogene. He also argues the
denial of his motion to amend the life insurance policy violated
the Equal Protection Clause of the Fourteenth Amendment. We find
no need to address the constitutional argument.
In denying defendant's motion, the trial judge found the
parties had agreed to the insurance provision in their partial
property agreement. He concluded defendant failed to show changed
Defendant claims the judge erred in finding the parties
entered into an agreement regarding the life insurance policy
because the trial judge had ruled that defendant should maintain
such a policy. We agree. Although the judge may have misspoken in
stating that the parties agreed to this issue, that should not
alter the analysis. Both consensual agreements and judicial
decrees are subject to the same standard of "changed
, 83 N.J.
at 148. Consequently, we
find this comment was harmless.
Nevertheless, it does not conclude the discussion. Life
insurance policies are frequently included in final judgments of
divorce as security for support obligations. Jacobitti v.
135 N.J. 571, 574-75 (1994); McCarthy v. McCarthy
319 N.J. Super. 138, 146 (App. Div. 1999).
Here, defendant alleged changed circumstances based upon the
birth of his daughter and because the present value of his life
insurance policy exceeded the value of his remaining child support
obligations to Richard. Moreover, based on his increase in income,
the amount of his life insurance coverage had increased
substantially since the time of his divorce. While this is strong
evidence of changed circumstances, the trial judge made no findings
in concluding that defendant could not alter the beneficiary
designation. Consequently, we remand for the judge to make
findings of fact and conclusions of law on this issue.
We reverse and remand for further findings of fact and
conclusions of law consistent with this opinion.
Footnote: 1 1Defendant maintained that plaintiff's salary in 1998, the
year the motion was filed, was actually $58,292 or $1,121 per week.