Change of Circumstance, Alimony, Child Support, and the Impact of Additional Non-Marital Children

In the unpublished decision by the New Jersey Appellate Court, Karkoszka v. Karkoszka, the appellate court issued a decision after reviewing a trial court’s denial of a post-divorce (i.e., post-judgment) motion to change alimony and child support based on the birth of a non-marital child.  The case was not one of first impression, but did reiterate the standard for a modification of alimony and child support when a non-marital child is born to the alimony and child support paying spouse.

In Karkoszka v. Karkoszka, the defendant-husband appealed a March 20, 2015, trial court order denying his motion to modify his alimony and child support obligations and awarding attorneys’ fees to his plaintiff-ex-wife.  The parties had been married 14 years and had two marital children.  In 2014, after a five-day trial, the Court entered a Judgment of Divorce (“JOD”) awarding wife limited duration alimony of $1,100 per month for a period of 15 years and requiring husband to pay $749 in monthly child support.  Within one year of the entry of the JOD, husband filed four motions to modify his alimony and child support.  All four motions were denied by the trial court.  After the fourth motion was denied by the trial court and his ex-wife was awarded attorneys’ fees, husband appealed the denial. 

The appellate court upheld the trial court’s denial of husband’s motion, but with different reasoning.  As a preliminary matter, the appellate court reiterated that the Family Part has authority under N.J.S.A. 2A:34-23 to modify alimony and child support awards. The statute provides that alimony and child support orders "may be revised and altered by the court from time to time as circumstances may require." Assessment of changed circumstances requires a judge to examine the parties' current situation and the situation when the order was entered. The changed-circumstances determination must be made by comparing the parties' financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations. In order to establish changed circumstances, a "party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis.

As part of his motion in Karkoszka, husband alleged that the birth of a non-marital child was a “changed-circumstance” and warranted modification of the alimony and child support.  The trial court rejected husband's assertion that the birth of his new child should be considered as a factor in determining whether a change in circumstances had been demonstrated by husband.  The trial court stated that the birth of husband's new child was the result of his "voluntary act." The trial court's apparent, but ultimately incorrect, logic was that husband could not unilaterally generate a change in circumstances based upon a voluntary decision to have an additional child and rejected his claim. The appellate court also rejected husband's claim, but did so for different reasons. 

The appellate court determined that the trial court's reasoning was inconsistent with the rationale in Martinez v. Martinez, where the appellate court held that a parent's obligation to support a child who had not been born and was "not contemplated at the time of the original" support order, is one of many factors a court must consider in determining whether there is a change in circumstances warranting modification of a child support award.  The appellate court noted that the support of a child by its parent "should not primarily depend on the date of his or her birth, [or] the family in which he or she is born" and that the "Child Support Guidelines [do] not substantially differentiate between children born of the first or ensuing relationships when modification is an issue or the right to be supported by a common, legally obligated parent is asserted."

While the appellate court disagreed with the reasoning of the trial court, it found that the evidence establishing the birth of husband's new child did not demonstrate a change in circumstances sufficient to require a modification of his child support and alimony obligations. Instead, the appellate court found that it is only one of many factors that the trial court was required to consider in determining whether there was a change in circumstances sufficient to warrant modification of the support order.

The appellate court went on to state that, in addition to the birth of the new child, the trial court was required to consider whether husband "has an ability, [and] the opportunity to earn additional income — and if so, how much — so as to lessen the potential financial impact, the potential hardship, on his first family that" the requested reduction in husband's obligation may impose. The trial court was also required to determine whether husband resides with the other parent of the newly born child, the other parent's earnings and contributions to shared expenses, the lifestyle of each family, the extent to which the lifestyles will be affected by a modification of the court's order, and whether the child has special needs. Because husband failed to provide such evidence and other information that must be considered in Martinez, the appellate court determined that the trial court properly rejected husband's singular reliance upon the birth of his new child as a basis for his claimed change in circumstances. 

Husband’s appeal also argued the court erred in awarding attorneys’ fees to ex-wife and asserted that the court failed to make findings concerning the factors that must be considered under Rule 5:3-5(c).  Appellate courts review an order regarding attorneys’ fees in a matrimonial case to determine if the trial court abused its discretion. Harte v. Hand.  An appellate court "will disturb a trial court's determination on counsel fees only on the 'rarest occasions, and then only because of a clear abuse of discretion.'" J.E.V.

Under N.J.S.A. 2A:34-23, a court may award counsel fees in a matrimonial matter and "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." New Jersey Court Rules also provide that a trial judge may, in his or her discretion, award counsel fees in a matrimonial action. In awarding counsel fees, a judge should consider the following factors in "determining the amount of the fee award": (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. 

Needless to say, the appellate court in Karkoszka, found no abuse of discretion in the trial court's decision to award counsel fees to ex-wife. The trial court determined that husband's filing of four motions for modification within one year of the entry of the JOD, his filing of the present motion within two months of the denial of his immediately preceding motion, and his ongoing failure to offer any evidence of a change in the circumstances related to his ability to earn the imputed income, justified the imposition of an attorney fee award.  The appellate court also found that, contrary to husband's assertions, the trial court also expressly considered the financial circumstances of the parties, their respective abilities to pay the fees, the fees incurred, the reasonableness and good faith of the parties concerning husband's modification, and ex-wife's cross-motion to have husband held in contempt, and the record otherwise supports the court's determination.