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  • 1.  Using Grandparent's income for child support

    Posted 05-29-2017 04:47 PM
    Hi, all,

    I did research on this, but I'd like to see if anyone else has any other helpful additions --

    I have a client (bio-dad) who enjoys joint custody of son with bio-mom and maternal grandmother. Client is in military and lives far. Grandmother has sole physical custody since 2011 and claims son as dependent on taxes. However, grandmother's income has not been included in child support calculations to date. Client now wants to include her income based on her assumed role of in loco parentis (as per Tash). Grandma argues Tash, Savoie, and A.N. distinguishable as both parents are alive, working, and capable of support. Child lives full time w/grandma and there is visitation in place for both parents, but grandma, admittedly, "has fully cared for child, emotionally, physically, and financially since he was 9 months old". Child is now 12. Anyone encountered this before can give me some insight, or more recent cases they've used to help prove that grandma's income should be included in calculations?

    Thanks in advance for all your help!

    ------------------------------
    Aleksandra N. Gontaryuk, Esq.
    AG Law Group
    P.O. Box 244
    Metuchen, NJ 08840
    Tel.: 908.336.7550
    ------------------------------


  • 2.  RE: Using Grandparent's income for child support

    Posted 05-29-2017 05:55 PM
    What exactly does the latest custody order say as to custody of the child? Are mom, dad and grand mom all listed as having joint legal custody? Is grand mom listed as having physical custody with only parenting time for mom and dad?

    What exactly does the latest child support order say? Who is ordered to pay support?

    Is this a case where mom and dad are ordered to pay child support to grand mom?

    Is dad trying to argue grand mom has a legal obligation to financially support his child with mom, in addition to raising and caring for their child?

    Anne Cralle, Esq.

    Sent from my iPad


    Original Message


  • 3.  RE: Using Grandparent's income for child support

    Posted 05-29-2017 06:47 PM
    Latest custody order, from 2011, states grandma has primary physical custody. I was just retained and don't have orders prior 2011, but it's my understanding all parties (mom, dad, and grandma share joint custody) -- 2011 order doesn't comment on this. Parenting time for mom and dad in place, but dad maybe sees child once a year b/c of military service, often less than that.

    Latest child support order states mom and dad are to pay support to grand mom -- BUT dad is the only one who actually gets his wages garnished (not because of missing payment, solely based on grand mom's request to have it that way for dad and not mom, who is her daughter).

    Dad is trying to argue that grandma's income should be used in child support calculations, as well as both parents' income, based on her in loco parentis role; grandma is basically sole decision maker in child's life, financially and otherwise. For example, child is in private school based on grandma's choice -- without consultation to parents, grandma claims child as dependent every year, takes care of all of child's needs, etc.

    ------------------------------
    Aleksandra N. Gontaryuk, Esq.
    AG Law Group
    P.O. Box 244
    Metuchen, NJ 08840
    Tel.: 908.336.7550
    ------------------------------

    Original Message


  • 4.  RE: Using Grandparent's income for child support

    Posted 05-29-2017 06:53 PM

    I briefed this a couple of years ago - but I think you hit the primary cases. Don't know if this will help, but (leaving the names since it's a publicly filed document). Don't know if the case law has evolved.


    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222


    February 1, 2007

    Hon. Mitchel E. Ostrer, JSC
    Superior Court of New Jersey
    175 South Broad Street
    Trenton, NJ 08650-0068
    Via Fax: 609-571-4874

    Re: <x-tab>    </x-tab>Bazsika v. Bazsika
    <x-tab>        </x-tab>Docket No. FM-11-34629-92

    Dear Judge Ostrer:
    <x-tab>        </x-tab>Please accept this letter brief in lieu of a more formal submission in opposition to the application to modify or vacate the court's October order. For the reasons expressed herein, the application is procedurally and substantively deficient, is untimely and should be denied.
    Statement Facts
    <x-tab>        </x-tab>Defendant relies on the facts as set forth in the annexed certification. There are no material fact questions.
    Legal Argument

    I. THE APPLICATION SHOULD BE DENIED AS THERE IS NO CHANGE IN CIRCUMSTANCES SINCE THE COURT'S OCTOBER 2006 ORDER.

    <x-tab>        </x-tab>It is fundamental that an application to modify an order must allege a change in circumstances such that enforcement of the existing order would be unjust. Lepis v. Lepis, 83 N.J. 139, 158 (1980). Credibility issues aside, the application does not even allege a change of any kind since the October 2006 order.
    II. THE MOTION SHOULD BE DENIED AS THE KAMINKERS FAILED TO MAKE THE REQUIRED FINANCIAL DISCLOSURE.

    <x-tab>        </x-tab>Rule 5:5-2 requires that "the case information statement required by this rule shall be filed and served in all contested family actions, except summary actions, in which there is any issue as to custody, support, alimony or equitable distribution."
    <x-tab>        </x-tab>The rule applies to the facts of this case. It is well established that a third party applying for child support has a duty to comply with the rule and make financial disclosure, regardless of whether the applying party has an independent support obligation.
    <x-tab>        </x-tab>In Tash v. Tash, 353 N.J.Super. 94, 101 (App.Div. 2002), the appellate division confirmed that "child support represents the marginal (extra) cost of raising a child at various total-income levels... Accordingly, total household net income must be considered, regardless of a duty to support so that actual cost of raising the child can be best estimated. Put another way, the hearing judge must determine the standard of well-being and marginal cost for the children in the household of the grandparents and the extent to which the father can fulfill his obligation within the confines of his income as determined by the court." See also Terry v. Terry, 270 N.J.Super. 105, 121 (App.Div. 1994), Kamen v. Egan, 2005 WL 3973183 (App.Div. 2006) (trial court erred by failing to consider the earnings of the grandfather in calculating support).
    <x-tab>        </x-tab>There was no confusion over this point of law prior to the motion being filed. Plaintiff's own exhibit (correspondence enclosed as Exhibit A dated December 6) affirms that counsel was politely reminded that disclosure was required by the Kaminkers if they were going to apply for support. The decision to file this motion without making the required disclose - even after having been reminded that disclosure was required - is blatant bad faith. It was done as the Kaminker's wealth permits them to afford to harass Mr. Bazsika through the legal process.

    III. THE MOTION SHOULD BE DENIED AS JACLYN DID NOT MAKE THE REQUIRED FINANCIAL DISCLOSE.

    <x-tab>        </x-tab>An unemancipated adult seeking to impose a support obligation also must do more than simply make bare allegations as to their finances. He or she must complete and file a full case information statement and make a prima facia showing of a need for support. White v. White, 313 N.J.Super. 637, 644 (Ch.Div. 1998), citing Lepis, 83 N.J. at 158, Stamberg v. Stamberg, 302 N.J.Super. 35 (App.Div. 1997).
    <x-tab>        </x-tab>Again, the application in this matter is deficient and should be denied.

    IV. THE APPLICATION SHOULD BE DENIED BASED ON LACHES AND THE NEED OF SPENSER BAZSIKA FOR SUPPORT.

    <x-tab>        </x-tab>The doctrine of laches prevents a party from enforcing a right after passage of such a period of time that prejudice has resulted to the other parties so that it would be inequitable to enforce the right. L.V. v. R.S., 347 N.J.Super. 33 (App.Div. 2002). There is no specific time period that triggers the doctrine; the issue is unreasonable delay and reliance by the adverse party on said delay. Id.
    <x-tab>        </x-tab>In this matter, the court set a deadline for an application to be made regarding support. The deadlines passed. The movant does not even attempt to provide any reason for inaction, thus making the delay unreasonable as a matter of law.
    <x-tab>        </x-tab>Mr. Bazsika certifies that he made life-altering decisions in reliance on the failure of the Kaminkers to move in a timely manner. Specifically, he made no effort to seek new employment after learning that his current assignment was ending, instead deciding to focus his efforts on raising the young son of his current marriage.
    <x-tab>        </x-tab>The decision of a parent to focus on parenting rather than employment is justified when, as here, there is no detriment to the standard of living of the child of the first marriage as a result. In Thomas v. Thomas, 248 N.J.Super. 33 (Ch.Div. 1991), the Court, in denying a request for child support (for a child - not, as here - for an unemancipated adult) held "whether support obligation should be imposed upon unemployed noncustodial parent depends upon all of the circumstances, and consideration should be given at least to reason for unemployment, ages of children involved, and availability of assets which may be used to pay support." See also, Padwee v. Padwee, 7 N.J.Super. 101 (App.Div.1950). The Appellate Division has ruled that although Thomas should not be viewed as a "per se" approach to the issues and that imputation "may" be appropriate, the question of whether to require contribution requires a "thorough examination of all of the circumstances of the parties and the children, including their assets, earning capacity, child care alternatives, and opportunities to pursue parttime employment." Bencivenga v. Bencivenga, 254 N.J. Super. 328, 332 (App.Div. 1992).
    <x-tab>        </x-tab>When viewed in conjunction with the well-established doctrine of laches, Mr. Bazsika's decision to focus on parenting his son was reasonable. Under the uncontested facts of the matter before this Court, the Kaminkers' motion should be denied as a matter of law.
    V. THE APPLICATION FOR COLLEGE CONTRIBUTION MUST ADDITIONALLY BE DENIED AS IT DOES NOT ADDRESS THE REQUIRED FACTORS APPLICABLE TO THE IMPOSITION OF A RETROACTIVE NOR PROSPECTIVE OBLIGATION.

    <x-tab>        </x-tab>The court is again directed to the complete lack of disclosure by the moving parties. The Kaminkers fall squarely within the "exception to the rule" whereby a grandparent can potentially be assessed an obligation to contribute to the support of a grandchild and their failure to reveal the extent of their wealth (and the affirmative misrepresentation of their financial status via a claim of "living on a fixed income") is fatal to the application before the Court. Watkins v. Nelson, 163 N.J. 235, 25354 (2000); A.N. ex rel. S.N. v. S.M., 333 N.J.Super. 566, 572 (App.Div.), certif. denied, 166 N.J. 606 (2000) (while a grandparent has no legal obligation to support a grandchild, exceptions to this general rule are imposed when the grandparent obtains legal custody, guardianship or acts in loco parentis).
    <x-tab>        </x-tab>Even if financial disclose had been made by all the parties involved, Newburgh. v. Arrigo, 88 N.J. 529, 545 (1981) sets out a list of 11 additional (non-exclusive) factors that a court must consider when asked to impose an obligation for college. Nine of the eleven are ignored in the motion before the court.
    <x-tab>        </x-tab>The request for retroactive contribution should be denied as a result of the Supreme Court's recent decision in Gac v. Gac, 186 N.J. 535(2006) (failure to make application for college costs before same are incurred weighs heavily against same being granted).
    <x-tab>        </x-tab>Had Mr. Bazsika been timely notified of an application concerning college, he obviously would have applied for his daughter to be limited to two years of community college and then two years at a state university based on his income, expenses, and current obligations.
    Conclusion
    <x-tab>        </x-tab>For the above reasons, the Kaminkers' application should be denied.
    Respectfully,



    David Perry Davis, Esq.

    Cc: Donald Bazsika
    <x-tab>        </x-tab>Carol Oswald, Esq.     (Via fax: 844-0784)

    At 04:47 PM 5/29/2017, you wrote:
    Hi, all, I did research on this, but I'd like to see if anyone else has any other helpful additions -- I have a client (bio-dad) who enjoys... -posted to the "Family Law Section" community

    Family Law




    I did research on this, but I'd like to see if anyone else has any other helpful additions --

    I have a client (bio-dad) who enjoys joint custody of son with bio-mom and maternal grandmother. Client is in military and lives far. Grandmother has sole physical custody since 2011 and claims son as dependent on taxes. However, grandmother's income has not been included in child support calculations to date. Client now wants to include her income based on her assumed role of in loco parentis (as per Tash). Grandma argues Tash, Savoie, and A.N. distinguishable as both parents are alive, working, and capable of support. Child lives full time w/grandma and there is visitation in place for both parents, but grandma, admittedly, "has fully cared for child, emotionally, physically, and financially since he was 9 months old". Child is now 12. Anyone encountered this before can give me some insight, or more recent cases they've used to help prove that grandma's income should be included in calculations?

    Thanks in advance for all your help!

    ------------------------------
    Aleksandra N. Gontaryuk, Esq.
    AG Law Group
    P.O. Box 244
    Metuchen, NJ 08840
    Tel.: 908.336.7550
    ------------------------------
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    Attachment(s)

    pdf
    Bazsika_OppBrief.pdf   343 KB 1 version
    pdf
    bazsika order 03-07_20070307145717.pdf   85 KB 1 version
    Original Message