S.F.-w. v. J.W.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3931-21

S.F.-W.,1

Plaintiff-Appellant,

v.

J.W.,

Defendant-Respondent.
________________________

Argued February 27, 2024 – Decided March 18, 2024

Before Judges Whipple, Mayer and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-0841-12.

Andrew M. Shaw argued the case for appellant (Shaw
Divorce & Family Law LLC, attorneys; Andrew M.
Shaw, on the brief).

1
We use initials and pseudonyms to protect the parties' privacy. R. 1:38-
3(d)(13).
 Respondent has not filed a brief.2

PER CURIAM

In this post-judgment matrimonial appeal, plaintiff S.F.-W. appeals from

the following: a May 4, 2022 order applying the Wunsch-Deffler3 doctrine to

calculate child support; a July 29, 2022 order denying reconsideration of the

May 4 order; and an August 10, 2022 uniform summary support order (USSO)

incorporating the May 4 order. For the reasons that follow, we reverse and

remand for recalculation of child support based on changed circumstances.

Plaintiff and defendant J.W. married in June 1997 and have two children,

J.W. (Jane), born in 2002, and S.W. (Sue), born in 2005. In July 2013, the

parties divorced. At that time, defendant agreed to pay $245 per week in child

support. He also agreed to pay an additional $100 per month in child support

for six years, and then a reduced amount of $69.50 per month for the following

six years.

2
In orders dated November 2, 2023 and January 9, 2024, we suppressed
defendant's brief, citing deficiencies that required correction. Defendant failed
to correct the deficiencies and his brief remained suppressed.
3
Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009).

A-3931-21
2
 In February 2014, a Family Part judge entered an Amended Dual Final

Judgment of Divorce, incorporating the parties' Marital Settlement Agreement

(MSA).4 The MSA provided: "[T]he parties shall share joint legal custody of

the children. The parties agree temporarily until the arbitrator renders his

decision that [plaintiff] shall be designated as the parent of primary residence

(PPR) and [defendant] shall be designated as the parent of alternate residence

(PAR)." Under the MSA, the parties "agreed to arbitrate the issues of custody

and parenting time on a post-judgment basis." The MSA's provisions continued

to govern pending the completion of arbitration.5

Subsequent to their divorce, the parties engaged in extensive motion

practice. Between February 2014 and June 2018, the trial court entered multiple

orders, addressing custody, parenting time, and other issues. In August 2018,

the judge appointed an attorney to represent the children.

In March 2019, the parties attended an in-court settlement hearing to

resolve pending applications related to custody and parenting time. Counsel for

the parties, including the children's court-appointed attorney, were present at

4
The parties executed the original MSA on January 17, 2013. However, the
parties executed a typed version of the MSA on February 21, 2014.
5
Despite the terms of the MSA, the parties never arbitrated their issues
regarding custody or parenting time.
A-3931-21
3
this hearing. Three agreements were marked at the hearing: J-1 (a custody and

visitation plan); J-2 (Sue's parenting time plan); and J-3 (handwritten notes from

the children's attorney regarding Jane).

Under J-1, the parties agreed Jane, then age seventeen, would "not be

required to conform to a fixed parenting time schedule." Instead, Jane could

"spend time with [defendant] at her option as agreed by and between [Jane] and

[defendant]." Under J-2, Sue had a 9/5 parenting time schedule, such that Sue

would spend nine days with plaintiff and five days with defendant in each two-

week period. Under J-3, Jane and defendant would decide whether to participate

in reunification therapy. J-3 also stated child support for Jane would be

calculated based on a 50/50 parenting schedule, applying the Wunsch-Deffler

formula. None of the documents marked during the hearing addressed child

support for Sue.

At the March 2019 hearing, plaintiff and defendant testified they

understood and agreed to be bound by the agreement. Additionally, defendant's

attorney told the judge it would be "necessary to re-run child support, because

there [was] going to be a fundamental change to the overnights" based on the

agreement.

A-3931-21
4
 The judge instructed counsel to file an appropriate application to modify

child support because the March 2019 agreement only resolved the pending

custody and parenting time issues. The judge explained "the parties [could]

either . . . submit their own financials and agree to what . . . child support ought

to be or make an application." Until then, the judge concluded, "[the current

child support order] [would] remain in effect unless and until the parties either

agree[d] to alter it or [made] an application for the [c]ourt to consider a

modification." Counsel did not submit an order memorializing the terms of the

March 2019 agreement to the court.

On July 24, 2021, proceeding pro se, plaintiff filed a motion to modify

child support retroactive to March 2019, and for other relief. Plaintiff asked the

court to "recalculate child support amounts and percentages based on the change

of living arrangements and the parties' household incomes." In her motion,

plaintiff noted Jane lived with her "100% of the time" and Sue was "following

the 9/5[] schedule." Additionally, plaintiff certified Jane was "attending a full-

time undergraduate program at Rutgers University, . . . and [was] not

emancipated."

On November 22, 2021, the Family Part judge entered an order scheduling

a plenary hearing to resolve plaintiff's motion to modify child support.

A-3931-21
5
 Thereafter, the matter was transferred to a different Family Part judge.

That judge conducted a case management conference and scheduled the plenary

hearing for March 30, 2022.

At the plenary hearing, plaintiff, who continued to proceed pro se, argued

the Wunsch-Deffler formula was inapplicable because Jane spent one hundred

percent of her overnights with plaintiff since March 2019. Defendant did not

dispute this fact. Additionally, during the plenary hearing, defendant agreed his

employer provided a car as part of his compensation package, and this in-kind

benefit should be included in any child support analysis.

Following the plenary hearing, in a May 4, 2022 order, the judge denied

plaintiff's motion. The judge found no substantial change in circumstances since

March 2019, notwithstanding that Jane spent no overnights with defendant.

Additionally, the judge declined to consider defendant's employer-provided

vehicle as an in-kind benefit and required the parties to "continue utilizing the

50/50 Wunsch-Deffler doctrine for calculating child support." The judge

concluded the "child support calculation remains even if [Jane] does not spend

equal overnights with [p]laintiff and [d]efendant, as this was specifically agreed

to in the [c]ustody and [v]isitation plan for [Jane]."

A-3931-21
6
 As to Sue's child support obligation, the judge noted her support

obligation was not addressed as part of the March 2019 hearing. However, the

judge determined there were no changed circumstances warranting a

modification to Sue's child support.

Plaintiff moved for reconsideration of the May 4, 2022 order. Plaintiff

argued the right to child support belongs to the child, and the judge abused his

discretion in failing to recalculate child support in accordance with the number

of overnights the children spent with each parent and other changed

circumstances. In a July 29, 2022 order, the judge denied plaintiff's motion for

reconsideration, finding plaintiff failed to make a prima facie showing that it

was in the children's best interests to change the current child support

arrangement.

On August 10, 2022, the Family Part judge entered a USSO reflecting the

May 4, 2022 order. In that order, the judge wrote:

Pursuant to [p]aragraphs 6, 7 and 10 of the May 4, 2022
[c]ourt [o]rder, the court shall calculate child support
under the 50/50 Wunsch-Deffler [d]octrine.
[D]efendant shall receive a credit for overpayments in
the amount of $30.50 per month since August 30, 2019.
The credits shall be applied to [d]efendant's
arrears . . . .

A-3931-21
7
 Plaintiff appeals from the May 4, July 29, and August 10, 2022 orders.

On appeal, she contends there were changed circumstances warranting

recalculation of the parties' child support obligations. Plaintiff further argues

the judge erred in declining to consider defendant's employer provided a vehicle

as an in-kind benefit, particularly because defendant acknowledged the vehicle

would be considered in recalculating child support. We agree.

Our review of orders issued by Family Part judges is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). We "review [a] Family Part judge's findings

in accordance with a deferential standard of review, recognizing the court's

'special jurisdiction and expertise in family matters.'" Thieme v. Aucoin-

Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at 413).

"[F]indings by the trial court are binding on appeal when supported by adequate,

substantial, credible evidence." Cesare, 154 N.J. at 411-12 (citing Rova Farms

Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

"When reviewing decisions granting or denying applications to modify

child support, we examine whether, given the facts, the trial judge abused his or

her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v.

Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial court's 'award

will not disturbed unless it is manifestly unreasonable, arbitrary, or clearly

A-3931-21
8
contrary to reason or other evidence, or the result of whim or caprice.'" Id. at

326 (quoting Jacoby, 427 N.J. Super. at 116). However, we review a Family

Part judge's legal conclusions de novo. Elrom v. Elrom, 439 N.J. Super. 424,

433-34 (App. Div. 2015).

A party seeking to modify a child support obligation has the burden of

demonstrating changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980).

Any decision must be made in accordance with the best interests of the children.

Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007).

A child support order is not immutable and may be modified upon a

showing of substantially changed circumstances and a related showing of need.

Lepis, 83 N.J. at 157; Jacoby, 427 N.J. Super. at 116. A significant change in

custody or parenting time constitutes a change in circumstances warranting

modification of child support. See Winterberg v. Lupo, 300 N.J. Super. 125,

133 (App. Div. 1997). A child's maturation may also warrant a modification of

support. Miller v. Miller, 160 N.J. 408, 420 (1999). Similarly, a child's needs

while attending college may constitute a significant change of circumstances.

Jacoby, 427 N.J. Super. at 116.

Moreover, the changed circumstances analysis applies even when support

has been fixed by an agreement incorporated into a divorce judgment. See J.B.,

A-3931-21
9
215 N.J. at 326-27. Parents may agree to allocate the payment of child support

and deviate from child support guidelines, provided the terms of the agreement

are fair and equitable, O.P. v. L.G.-P., 440 N.J. Super. 146, 155-56 (App. Div.

2015), and the interests of the child are not prejudiced, Ordukaya v. Brown, 357

N.J. Super. 231, 241 (App. Div. 2003). However, parents may not bargain away

a child's right to support. Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994).

It is well-established that "[e]ach parent has a responsibility to share the

costs of providing for the child while [the child] remains unemancipated."

Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). A parent's

obligation to "proper[ly] support" an unemancipated child "to the extent that

[one] is financially able" continues "even [if there is currently] no relationship

between them." J.R. v. L.R., 386 N.J. Super. 475, 484 (App. Div. 2006). A

parent's "continuing obligation to support the child must be based upon an

evaluation of the child's needs and interests" regardless of whether the child

maintains a relationship with the parent. Martinetti, 261 N.J. Super. at 512.

Generally, the child support guidelines in Appendix IX of the New Jersey

Court Rules "shall be applied when an application to establish or modify child

support is considered by the court." R. 5:6A. The annual number of overnights

is a factor in applying the child support guidelines. See Child Support

A-3931-21
10
Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendices IX-

A(14)(c)(2) and IX-D to R. 5:6A (2024).6

The Wunsch-Deffler doctrine deviates from the child support guidelines

because the doctrine contemplates a true 50/50 parenting time situation.

Wunsch-Deffler, 406 N.J. Super. at 507. Such a parenting time arrangement

requires an adjustment to the child support guidelines because both parents pay

the child's "controlled expenses" equally. Id. at 509. Controlled expenses

include items such as clothing, personal care, and entertainment. Id. at 508. The

Wunsch-Deffler doctrine eliminates controlled expenses in a 50/50 parenting

time arrangement. Id. at 509.

Plaintiff argues the Wunsch-Deffler doctrine does not apply in calculating

Jane's child support obligation because Jane spends one hundred percent of her

6
Based on the ages of the children at the time of the remand, we note that "child
support guidelines are intended to apply to children who are less than [eighteen]
years of age or more than [eighteen] years of age but still attending high school
or a similar secondary educational institution." Additionally, the child support
guidelines "may be applied in the court's discretion to support for students over
[eighteen] years of age who commute to college." Id. at Appendix IX-A to R.
5:6A at ¶ 18. Further, it is well established that "[r]esort to the [c]hild [s]upport
[g]uidelines . . . to make support calculations for college students living away
from home is error" and "courts faced with the question of setting child support
for college students living away from home must assess all applicable facts and
circumstances, weighing the factors set forth in N.J.S.A. 2A:34-23a." Jacoby,
427 N.J. Super. at 113 (citation omitted).

A-3931-21
11
overnights with plaintiff and has done so since March 2019. Defendant did not

dispute that Jane spent no overnights with him. Plaintiff further contends a

modification of Jane's child support obligation is warranted because: Jane is

over the age of eighteen; Jane is attending college; and Jane declined to

participate in reunification therapy with defendant.

We agree these facts present changed circumstances warranting a

modification of the parties' child support obligations for Jane. While the

relationship between Jane and defendant may be strained, defendant has an

obligation to provide financial support for her and the amount of support must

be based on a judicial evaluation of Jane's needs and best interests.

Having reviewed the record, we are satisfied the Family Part judge

mistakenly declined to find changed circumstances warranting a child support

modification for Jane. On remand, the judge shall evaluate Jane's needs and best

interests, among other factors, in recalculating her child support award.

We also remand to the Family Part to recalculate child support for Sue.

The parties never addressed Sue's child support during the March 2019 hearing.

On remand, the judge should evaluate Sue's needs and best interests in arriving

at the amount of her child support. The judge should also consider Sue's

A-3931-21
12
parenting time schedule and any other relevant considerations at the time of the

remand proceeding.

However, we reject plaintiff's request for modification of the parties' child

support obligations retroactive to March 2019. A parties' child support

obligation can only be "retroactively modified . . . from the date the notice of

motion was mailed either directly or through the appropriate agent." N.J.S.A.

2A:17-56.23a. Here, plaintiff filed her application to modify child support on

July 24, 2021. On remand, the judge should use the July 24, 2021 filing date

for recalculating the parties' child support obligations.

Because we remand to the Family Part to recalculate child support for Jane

and Sue based on changed circumstances, we need not address plaintiff's

remaining arguments. Moreover, we note the remand judge should consider, if

still applicable, defendant's employer-provided vehicle as an in-kind benefit in

the child support recalculation.

Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.

A-3931-21
13