Docket No. A-4669-18
Decided July 6, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division reversed in part a trial court’s denial to modify an arbitration award finding a child living away in boarding school is changed circumstances sufficient to modify child support.
In Baeszler, the parties married in September 1994. Two children were born of the marriage, a daughter born in 1999 and a son born in 2003. In August 2008, the parties divorced upon the entry of a Dual Judgment of Divorce incorporating the parties’ Memorandum of Understanding dated August 7, 2008. Shortly thereafter, the parties engaged in litigation regarding their daughter’s education expenses. On July 30, 2010, the trial court found defendant in contempt of court for failing to comply with orders to – among other things – pay fifty percent of the daughter’s tuition and related expenses. Because of defendant’s refusal to cooperate, on August 14, 2015, the court awarded plaintiff sole custody of both children.
Also on August 14, 2015, the trial court found defendant in contempt for failing to provide discovery. Discovery ultimately revealed defendant’s Fidelity Profit Sharing Plan and Money Purchase Plan accounts (the Fidelity accounts), represented by defendant as having a value of $360,000 when plaintiff filed her divorce complaint, had an the actual value of $450,000 at that time. Therefore, plaintiff’s fifty percent share of the Fidelity accounts was understated by $45,000. Accordingly, the court granted plaintiff’s request to receive an additional $45,000 from the Fidelity accounts.
The parties continued to contest numerous outstanding post-judgment issues regarding, among other things, child support and the distribution of retirement assets. For example, on March 29, 2016, the trial court awarded plaintiff “forty percent (40%) of the Keogh Money Purchase Plan contributions of [d]efendant . . . or the taxable sum of $146,152, which contributions were erroneously and inequitably excluded from (d)efendant’s available income for support purposes in the 2008 divorce judgment.” The court had preserved the order pending a plenary hearing to allow defendant to produce an expert report on the matter, but he never did; in addition, defendant failed to appear at the plenary hearing.
The parties retained an arbitrator to arbitrate the outstanding post-judgment issues. The arbitrator issued an award obligating defendant to pay $3,442 per month in child support, sixty percent of tuition, and an additional $45,000 for plaintiff’s half of the Fidelity accounts.
At a later date, the Court granted plaintiff’s request to send their son to a boarding school in Pennsylvania. In response, defendant sought to modify his child support obligation, arguing the child living at boarding school was a material change in circumstances. The court denied defendant’s motion.
The parties made a variety of other challenges to the arbitrator’s award, each of which were denied.
Both parties appealed. The Appellate Division found that the challenges to the arbitrator’s award lacked merit. No grounds were presented to reopen the arbitrator’s award. Defendant’s appeal of his modification of child support denial, however, was changed circumstances and warranted the Court to review these circumstances as to the modification of child support with the child living at boarding school.
This decision is important to understand the deference that arbitrators are given on appeal. There are very limited circumstances in which arbitration awards can be reopened, which include:
(1) the award was procured by corruption, fraud, or other undue means; (2) the court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding; (3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding; (4) an arbitrator exceeded the arbitrator’s powers . . . . [N.J.S.A. 2A:23B-23.]
Also what’s important is that a child living away at college is changed circumstances for a modification of child support. Logically, as the court showed here, a child living away at boarding school is also sufficient changed circumstances warranting a modification of child support.
If you have any questions about divorce, arbitration, child support or any other issues, contact the experienced attorneys at Hark & Hark today.
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