NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3027-22
A.W.,
Plaintiff-Appellant,
v.
S.M.,1
Defendant-Respondent. ________________________
Submitted June 5, 2025 – Decided June 19, 2025
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0355-18.
John M. Holliday, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
1 We use initials to protect the parties' privacy and the confidentiality of the proceedings in accordance with Rule 1:38-3(d)(12). Plaintiff A.W. appeals from a May 5, 2023 order denying her motion to
reconsider a February 10, 2023 order, which denied her request to reinstate child
support.2 We vacate both orders under review and remand for further
proceedings.
Plaintiff and defendant are the divorced parents of two children. On
October 15, 2018, a Family Part judge entered a dual final judgment of divorce ,
which incorporated an October 2018 Property Settlement Agreement (PSA) as
part of the divorce judgment. Under the PSA, the parties agreed to joint legal
custody of the children, with plaintiff designated as the parent of primary
residence. With respect to parenting time, it provided defendant would have the
"children every weekend from Friday overnight (after school) to Sunday or
Monday based on [plaintiff]'s work schedule."
As to child support, the PSA stated "[p]ending the outcome of the
[Division of Child Protection and Permanency] investigation" and a dispute over
2 The May 5, 2023 order also addressed plaintiff's request for reconsideration of a prior denial of her application for reimbursement of medical insurance and costs and attorney's fees and costs. As she has not briefed those issues, we accordingly consider them waived and limit our discussion to the child support issue. See Telebright Corp. v. Dir., N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025) ("[A]n issue not briefed is deemed waived."). A-3027-22 2 plaintiff's weekly income, defendant agreed to pay $259 per week in child
support. It further explained "child support reflects two overnights per week"
with defendant and was based on the agreed-upon weekly income of $380 for
plaintiff and $1,095 for defendant.
On April 7, 2020, the parties entered into a consent order, which
memorialized their agreement that defendant would relocate to Maine and would
"have custody of the children for the summers and winter breaks," with plaintiff
having physical custody for the school year. The parties also agreed to
"vacate[]" child support and "reevaluate the custody plan after one year."3
On July 8, 2022, defendant moved and sought to modify the parties'
existing custody arrangements, among other requests. Plaintiff cross-moved
seeking to "[c]omput[e] child support, pursuant to the guidelines, and set[] a
basic support amount payable to [p]laintiff via wage garnishment, retroactive to
the July 28, 2022 filing . . . of [her] cross-motion." Plaintiff further requested
defendant "file with the [c]ourt[,] and provide a copy to counsel, of his
[f]inancial [s]ummary [s]tatement with verification of current income including,
3 The parties have not included the April 7, 2020 consent order in the record. They do not dispute, however, that its material terms are memorialized in the court's June 26, 2020 order. A-3027-22 3 but not limited to, [his] 2021 [f]ederal [i]ncome [t]ax [r]eturn, 2021 W-2
statement, and copies of [his] last three . . . earnings statements."
In her supporting certification, plaintiff explained "[s]ince birth,
[she] . . . maintained primary responsibility for [her and defendant's] children,"
including "provid[ing] for all of their needs, i.e., feeding, clothing, healthcare,
hygiene, school[,] and extracurricular activities." She stated she lives in a two-
bedroom apartment with her boyfriend, who earns $22 per hour as an HVAC
technician, and that she and her boyfriend had their first child together in May
2022. Plaintiff further described she was employed full-time as a packer at
Amazon but was on disability from December 2021 to May 2022 and "extended
maternity leave" at the time of the motion. Finally, plaintiff reasserted her
request for documentary proof of defendant's income and stated she provided a
financial summary statement to verify her and her boyfriend's income.
In a February 10, 2023 order, the court denied plaintiff's cross-motion
with respect to her request to reinstate child support.4 The court found "[t]he
parties[] entered into a custody order whereby child support was terminated"
4 The court also denied defendant's motion to modify custody and parenting time. A-3027-22 4 and concluded "the arguments presented by [p]laintiff [did not] constitute
changed circumstances warranting a review of child support."
On March 24, 2023, plaintiff moved for reconsideration and again
requested the court "direct [d]efendant to submit a completed [f]inancial
[s]tatement for [s]ummary [s]upport [a]ctions, including verification of current
income[,] and set [his] child support obligation retroactive to May 1, 2020." In
her certification supporting her application, plaintiff explained it was her
"understanding, . . . that under existing New Jersey [l]aw[,] parents cannot waive
child support since it is for the direct benefit of the children, not the parents. "
Accordingly, plaintiff requested an order acknowledging the "April 7, 2020
[c]onsent [o]rder terminating child support is not enforceable and, therefore,
[d]efendant's obligation as the non-custodial parent to pay child support remains
in effect."
After considering the parties' written submissions and oral arguments the
court denied plaintiff's motion. The court concluded its prior decision was not
"based upon a palpably incorrect or irrational basis, or . . . that the [c]ourt either
did not consider, or failed to appreciate the significance of probative, competent
evidence." It issued a conforming order and explained its decision in a written
opinion.
A-3027-22 5 With respect to plaintiff's request to reinstate child support, the court
explained "[w]hile a party cannot waive child support[,] they can always not
seek the payment of child support," and "[i]n this case[, d]efendant agreed to
stop the child support payments as part of the overall consideration of the
consent order that was entered." The court further rejected plaintiff's arguments
that she entered the April 2020 consent order as a result of fraud or duress and
that child support should be effective to the date of the consent order.
Notwithstanding its denial of plaintiff's application, however, the court
allowed for the limited exchange of updated financial information. The court
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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-3027-22
A.W.,
Plaintiff-Appellant,
v.
S.M.,1
Defendant-Respondent. ________________________
Submitted June 5, 2025 – Decided June 19, 2025
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0355-18.
John M. Holliday, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
1 We use initials to protect the parties' privacy and the confidentiality of the proceedings in accordance with Rule 1:38-3(d)(12). Plaintiff A.W. appeals from a May 5, 2023 order denying her motion to
reconsider a February 10, 2023 order, which denied her request to reinstate child
support.2 We vacate both orders under review and remand for further
proceedings.
Plaintiff and defendant are the divorced parents of two children. On
October 15, 2018, a Family Part judge entered a dual final judgment of divorce ,
which incorporated an October 2018 Property Settlement Agreement (PSA) as
part of the divorce judgment. Under the PSA, the parties agreed to joint legal
custody of the children, with plaintiff designated as the parent of primary
residence. With respect to parenting time, it provided defendant would have the
"children every weekend from Friday overnight (after school) to Sunday or
Monday based on [plaintiff]'s work schedule."
As to child support, the PSA stated "[p]ending the outcome of the
[Division of Child Protection and Permanency] investigation" and a dispute over
2 The May 5, 2023 order also addressed plaintiff's request for reconsideration of a prior denial of her application for reimbursement of medical insurance and costs and attorney's fees and costs. As she has not briefed those issues, we accordingly consider them waived and limit our discussion to the child support issue. See Telebright Corp. v. Dir., N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025) ("[A]n issue not briefed is deemed waived."). A-3027-22 2 plaintiff's weekly income, defendant agreed to pay $259 per week in child
support. It further explained "child support reflects two overnights per week"
with defendant and was based on the agreed-upon weekly income of $380 for
plaintiff and $1,095 for defendant.
On April 7, 2020, the parties entered into a consent order, which
memorialized their agreement that defendant would relocate to Maine and would
"have custody of the children for the summers and winter breaks," with plaintiff
having physical custody for the school year. The parties also agreed to
"vacate[]" child support and "reevaluate the custody plan after one year."3
On July 8, 2022, defendant moved and sought to modify the parties'
existing custody arrangements, among other requests. Plaintiff cross-moved
seeking to "[c]omput[e] child support, pursuant to the guidelines, and set[] a
basic support amount payable to [p]laintiff via wage garnishment, retroactive to
the July 28, 2022 filing . . . of [her] cross-motion." Plaintiff further requested
defendant "file with the [c]ourt[,] and provide a copy to counsel, of his
[f]inancial [s]ummary [s]tatement with verification of current income including,
3 The parties have not included the April 7, 2020 consent order in the record. They do not dispute, however, that its material terms are memorialized in the court's June 26, 2020 order. A-3027-22 3 but not limited to, [his] 2021 [f]ederal [i]ncome [t]ax [r]eturn, 2021 W-2
statement, and copies of [his] last three . . . earnings statements."
In her supporting certification, plaintiff explained "[s]ince birth,
[she] . . . maintained primary responsibility for [her and defendant's] children,"
including "provid[ing] for all of their needs, i.e., feeding, clothing, healthcare,
hygiene, school[,] and extracurricular activities." She stated she lives in a two-
bedroom apartment with her boyfriend, who earns $22 per hour as an HVAC
technician, and that she and her boyfriend had their first child together in May
2022. Plaintiff further described she was employed full-time as a packer at
Amazon but was on disability from December 2021 to May 2022 and "extended
maternity leave" at the time of the motion. Finally, plaintiff reasserted her
request for documentary proof of defendant's income and stated she provided a
financial summary statement to verify her and her boyfriend's income.
In a February 10, 2023 order, the court denied plaintiff's cross-motion
with respect to her request to reinstate child support.4 The court found "[t]he
parties[] entered into a custody order whereby child support was terminated"
4 The court also denied defendant's motion to modify custody and parenting time. A-3027-22 4 and concluded "the arguments presented by [p]laintiff [did not] constitute
changed circumstances warranting a review of child support."
On March 24, 2023, plaintiff moved for reconsideration and again
requested the court "direct [d]efendant to submit a completed [f]inancial
[s]tatement for [s]ummary [s]upport [a]ctions, including verification of current
income[,] and set [his] child support obligation retroactive to May 1, 2020." In
her certification supporting her application, plaintiff explained it was her
"understanding, . . . that under existing New Jersey [l]aw[,] parents cannot waive
child support since it is for the direct benefit of the children, not the parents. "
Accordingly, plaintiff requested an order acknowledging the "April 7, 2020
[c]onsent [o]rder terminating child support is not enforceable and, therefore,
[d]efendant's obligation as the non-custodial parent to pay child support remains
in effect."
After considering the parties' written submissions and oral arguments the
court denied plaintiff's motion. The court concluded its prior decision was not
"based upon a palpably incorrect or irrational basis, or . . . that the [c]ourt either
did not consider, or failed to appreciate the significance of probative, competent
evidence." It issued a conforming order and explained its decision in a written
opinion.
A-3027-22 5 With respect to plaintiff's request to reinstate child support, the court
explained "[w]hile a party cannot waive child support[,] they can always not
seek the payment of child support," and "[i]n this case[, d]efendant agreed to
stop the child support payments as part of the overall consideration of the
consent order that was entered." The court further rejected plaintiff's arguments
that she entered the April 2020 consent order as a result of fraud or duress and
that child support should be effective to the date of the consent order.
Notwithstanding its denial of plaintiff's application, however, the court
allowed for the limited exchange of updated financial information. The court
ordered the parties to exchange their respective 2022 year-end and 2023 year-
to-date income documentation in the hopes that counsel could negotiate any
future changes to the child support arrangement and, if not, file a new motion.
On appeal, plaintiff argues the court erroneously enforced the parties'
April 7, 2020 consent order because the "agreement [was] clearly contrary to
well[-]established New Jersey law[,] which clearly holds that a custodial parent
is not in a position to waive or terminate child support payments since the right
to support belongs to the child not the parent." She asserts "both parents have a
continuing responsibility to share the costs of providing for the children."
Further, "there is no basis to enforce their prior agreement vacating child support
A-3027-22 6 since . . . [it] contradicts public policy and the long line of cases that uphold the
principle that the benefit of the support is intended for the child and not a
negotiating point between divorcing or separated parents."
Plaintiff further asserts the court erred "using a change of circumstance
standard for modification, [and] that the parties did not waive child support
payments, but rather, vacated a prior support order which originated in the
parties' [P]SA wherein [d]efendant was obligated to pay $259[] per week." She
further argues the court's conclusion that the parties chose not to seek collection
of child support "no longer applies . . . since [p]laintiff is seeking a collection
of child support in the form of an enforcement action . . . which is now the
subject of the . . . appeal."
"The trial court has substantial discretion in making a child support
award." Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001) (citing
Pascale v. Pascale, 140 N.J. 583, 594 (1995)). "If consistent with the law, such
an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary,
or clearly contrary to reason or to other evidence, or the result of whim or
caprice.'" Id. at 315-16 (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605
(App. Div. 1999)) (internal quotation marks omitted). The standard of review
"is that findings by the trial court are binding on appeal when supported by
A-3027-22 7 adequate, substantial, credible evidence" in the record. Cesare v. Cesare, 154
N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974)). All legal issues, however, are reviewed de novo. Ricci
v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).
It is axiomatic that child support is a right that belongs to the child.
Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Both parents
bear the obligation of child support. Pascale, 140 N.J. at 593. "[C]hildren are
entitled to share in the current income of both parents." Child Support
Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to
R. 5:6A, ¶ 1, www.gannlaw.com (2025). To that end, our court rules state the
guidelines "shall be applied when an application to establish or modify child
support is considered by the court." R. 5:6A.
A court need not apply the guidelines where there is good cause not to,
namely "factors which may make the guidelines inapplicable or subject to
modification, and [where an] . . . injustice would result from the application of
the guidelines." Ibid. However, the "guidelines must be used as a rebuttable
presumption to establish or modify all child support orders. The guidelines must
be applied in all actions, contested or uncontested, in which child support is
A-3027-22 8 being determined . . . ." Child Support Guidelines, Pressler & Verniero, Current
N.J. Court Rules, Appendix IX-A to R. 5:6A, ¶2.
"A 'trial court has the discretion to modify [an] agreement upon a showing
of changed circumstances.'" Quinn v. Quinn, 225 N.J. 34, 49 (2016) (quoting
Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)). After a party makes a
showing of changed circumstances relating to child support, the trial judge must
determine if a plenary hearing is required. Hand v. Hand, 391 N.J. Super. 102,
105 (App. Div. 2007).
Rule 5:5-4(a)(4) requires a party moving for modification of an order or
judgment based on changed circumstances to "append copies of [their] current
case information statement [(CIS)] and [their CIS] previously executed or filed
in connection with the order, judgment[,] or agreement sought to be modified."
"Courts have consistently rejected requests for modification based on
circumstances which are only temporary or which are expected but have not yet
occurred." Lepis v. Lepis, 83 N.J. 139, 151 (1980) (citing Bonanno v. Bonanno,
4 N.J. 268, 274 (1950)). Therefore, the premature filing of a Lepis motion will
justify its denial on the ground that the change has not been shown to be a
permanent condition or of lasting duration. Larbig v. Larbig, 384 N.J. Super.
17, 22-23 (App. Div. 2006).
A-3027-22 9 "There is . . . no brightline rule by which to measure when a changed
circumstance has endured long enough to warrant a modification of a support
obligation. . . . [S]uch matters turn on the discretionary determinations of
Family Part judges, based upon their experience as applied to all the relevant
circumstances." Ibid.
We are convinced further development of the record is necessary to
determine the propriety of the provision of the consent order, which vacated
defendant's child support obligations. As the court correctly noted, consistent
with the aforementioned, well-established legal principles, the parties cannot
waive their obligation to provide support for their unemancipated children as
that is not their right to bargain away. See Hickman, 261 N.J. Super. at 512.
However, based on the record before us, we are unable to discern the
economics supporting the parties' decision to forgo child support and,
specifically, if it was the result of an equal shared physical custody arrangement
with attendant equal financial responsibilities. Based on the PSA, however, the
parties appear to have a significant income disparity with defendant earning
more than $700 per week than plaintiff at the time of the dual judgment of
divorce. Further, in plaintiff's certification supporting her reconsideration
application, she attested to being out of work for a significant period and before
A-3027-22 10 that, earning a modest living while providing significant financial support for
the parties' children.
Simply put, the record fails to reveal the parties' respective economic
circumstances when they agreed to "vacate" the prior child support order, or at
the time plaintiff filed to reinstate it, to enable us to conduct a meaningful
analysis. Accordingly, on remand, the parties shall exchange updated financial
information sufficient to determine their parties' respective economic
circumstances, and for the court to consider a support obligation consistent with
the established guidelines.
Vacated and remanded. We do not retain jurisdiction.
A-3027-22 11