                                NOT FOR PUBLICATION WITHOUT THE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-3172-17T1

JANET ELLEN DUNIGAN,

          Plaintiff-Respondent,

v.

ERIC S. WILSON,

     Defendant-Appellant.
___________________________

                    Argued March 5, 2019 – Decided July 31, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Mercer County,
                    Docket No. FM-11-0948-10.

                    Amy Sara Cores argued the cause for appellant (Cores
                    & Associates, LLC, attorneys; Amy Sara Cores and
                    Marybeth Hershkowitz, on the brief).

                    Philip S. Burnham, II argued the cause for respondent
                    (Burnham Law Group, LLC, attorneys; Philip S.
                    Burnham, II and Ashley A. Thomas, on the brief).

PER CURIAM
      In this post-judgment dissolution matter, defendant Eric S. Wilson appeals

from the Family Part's February 7, 2018 order that established child support for

his and plaintiff Janet Ellen Dunigan's younger son, who was seventeen years

old, after the emancipation of their older son. The limited argument raised by

defendant is that the Family Part judge improperly included in her calculations

the 14.6% guidelines adjustment that is required in initial child support orders

when a child is over twelve years old. Defendant contends that because this was

not an initial support order, employment of the adjustment was incorrect. We

agree and therefore vacate the order and remand the matter for recalculation of

child support.

      The relevant facts derived from the motion record are summarized as

follows. After the parties were married in 1994, they had two sons: one born in

1997 and the other in 2000. The parties were divorced in 2010 pursuant to a

final judgment of divorce (JOD) that incorporated their marital settlement

agreement (MSA). In the MSA, the parties agreed upon an amount of child

support for the two children. Attached to the MSA were two sets of child

support guidelines calculations. Because one of their children was over the age

of twelve at the time, both sets included the 14.6% adjustment for the one child.




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      The two sets of guidelines calculations were necessary to illustrate a

dispute that the parties were having about the type of guidelines—"sole or

shared parenting time"—they should use. Ultimately, the parties agreed upon a

deviation from either guidelines' amount and set forth their reasons for doing so

in the MSA.      They also agreed to recalculate child support upon the

emancipation of the older child. From 2010 through 2016, neither party sought

any modification to child support or other review by the Family Part.

      The emancipation of the parties' older son was raised by defendant in 2016

after the older son had ceased residing with either parent. Plaintiff initially

opposed the application, but later agreed to the older son's emancipation after

the motion judge scheduled a plenary hearing to resolve the issue. The parties

notified the judge of their agreement and sought an order memorializing the

emancipation of the older child and fixing child support for the younger child.

      On February 7, 2018, the motion judge entered an order emancipating the

older son and fixing child support for the younger son, and issued a written

statement of reasons setting forth how the amount was calculated.         In her

comprehensive decision, the judge reviewed the original support calculations

followed by the parties' MSA, and noted that the guidelines' requirements for

high earners applied to this case.     Therefore, the child support would be


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                                       3
calculated in accordance with the guidelines up to the maximum income amount

and then a discretionary amount was to be added as determined by the judge, if

warranted. In addition, the judge noted that it was significant to her decision

that the initial support amount had not been increased over the years since its

entry. The judge's guidelines calculations included the 14.6% adjustment but

her decision made no mention of its inclusion.

      After receiving the motion judge's order and calculations, defendant's

attorney wrote to the judge to advise that the judge's calculations contained a

clerical error because they included the 14.6% adjustment required for initial

orders where a child is over twelve years old. Counsel explained that because

the judge's order was not an initial order, the adjustment was not applicable.

      The judge responded by notifying counsel that the adjustment was not an

error. According to the judge, because the parties deviated from the guidelines

in their calculation of support as set forth in their MSA, the judge's calculation

of support for the younger child was an initial calculation of support that

required inclusion of the adjustment and including it was "equitable and just."

This appeal followed.

      We begin our review by noting that an award of child support is committed

to the sound discretion of the trial court, and the award will not be disturbed on


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                                        4
appeal "unless it is manifestly unreasonable, arbitrary, or clearly contrary to

reason or to other evidence, or the result of whim or caprice." Gotlib v. Gotlib,

399 N.J. Super. 295, 309 (App. Div. 2008) (quoting Foust v. Glaser, 340 N.J.

Super. 312, 315-16 (App. Div. 2001)) (internal quotation marks omitted).

However, in our review, "we are not bound by '[a] trial court's interpretation of

the law' and do not defer to legal consequences drawn from established facts."

Jacoby v. Jacoby, 427 N.J. Super. 109, 116-17 (App. Div. 2012) (alteration in

original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

      When deciding the amount of child support, a judge must apply the child

support guidelines, which are set forth in Appendix IX to Rule 5:6A for incomes

up to $150,800, and then for higher income families, apply the statutory factors

under N.J.S.A. 2A:34-23(a) to calculate an additional discretionary amount to

be added if warranted. See Pascale v. Pascale, 140 N.J. 583, 593-94 (1995); see

also Caplan v. Caplan, 364 N.J. Super. 68, 84-86 (App. Div. 2003).

      The statute sets forth the following factors:

            (1) Needs of the child;

            (2) Standard of living and economic circumstances of
            each parent;

            (3) All sources of income and assets of each parent;

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                                        5
            (4) Earning ability of each parent, including
            educational background, training, employment skills,
            work experience, custodial responsibility for children
            including the cost of providing child care and the length
            of time and cost of each parent to obtain training or
            experience for appropriate employment;

            (5) Need and capacity of the child for education,
            including higher education;

            (6) Age and health of the child and each parent;

            (7) Income, assets and earning ability of the child;

            (8) Responsibility of the parents for the court-ordered
            support of others;

            (9) Reasonable debts and liabilities of each child and
            parent; and

            (10) Any other factors the court may deem relevant.

            [N.J.S.A. 2A:34-23(a).]

      In pertinent part, the guidelines provide, "[I]f the initial child support

order is entered when a child is [twelve] years of age or older, that order and all

subsequent orders shall be adjusted upward by 14.6%." Pressler & Verniero,

Current N.J. Court Rules, Appendix IX-A to R. 5:6A, www.gannlaw.com

(2019). That adjustment is applied to "the earliest date from which support was

paid." Accardi v. Accardi, 369 N.J. Super. 75, 87 (App. Div. 2004). The 14.6%

guidelines adjustment is based solely on the age of the child at the time of an


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                                        6
initial child support award and is not related to other reasons that may support

an application for an award of child support outside of the guidelines. See J.B.

v. W.B., 215 N.J. 305, 327 (2013) ("an increase in the needs of a child . . . may

constitute [a] change[] in circumstances that will trigger an examination of the

support obligation").

      The rationale supporting the adjustment is explained in the guidelines as

follows:

            The child support schedules are based on child-rearing
            expenditures averaged across the entire age range of
            zero through 17 years (total expenditures divided by 18
            years). This averaging means that awards for younger
            children are slightly overstated due to the higher level
            of expenditures for older children. If an award is
            entered while the child is very young and continues
            through age 18, the net effect is negligible. However,
            initial awards for children in their teens are
            underestimated by the averaging and should be adjusted
            upward to compensate for this effect. . . . the cost of
            children aged 12 through 17 was 14.6% above the
            average expenditures.

            [Pressler & Verniero, Current N.J. Court Rules,
            Appendix IX-A to R. 5:6A, www.gannlaw.com
            (2019).]

      In this case it is clear that the motion judge erred by incorporating the

adjustment into her calculations. At the time of the initial support award in

2010, the children were thirteen and ten years old. Guidelines calculations were


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                                       7
prepared and considered by the parties in the calculation of their agreed upon

support amount that they incorporated into the JOD.          Those calculations

included the 14.6% adjustment because one child was over twelve years old at

the time. The support ordered in the JOD as agreed to by the parties was the

initial support award. Any adjustments thereafter were to be based on the

guidelines and the statutory considerations without including the adjustment

again, especially when considering support for the younger child, who was ten

years old at the time the JOD was entered and therefore his support was not

"underestimated."

      Plaintiff raises numerous objections to removing the adjustment from the

calculation of support and argues we should affirm its inclusion because she had

been deprived of increases in child support over the years. Her objections and

arguments relate to defendant's alleged motives for seeking relief from the

challenged support order and include contentions about the parties' income and

the child's needs. We do not pass on any of those arguments as our review in

this case is limited to whether it was proper to include the adjustment in what

was the second support order entered by a court. As we are constrained to

remand this matter for recalculation of support without the adjustment, plaintiff




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                                       8
is free to seek further relief from the motion judge for any legitimate reason she

wishes to advance.

      The order under appeal is vacated and the matter is remanded for further

proceedings consistent with our opinion. We do not retain jurisdiction.




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