The New Jersey Supreme Court is debating whether a wealthy divorced father’s request to set up a special needs trust was an effort to secure his autistic adult son’s future or an attempt to get out of paying child support.
The man’s lawyer asked the justices on Monday to overturn two lower courts that said the trust could not supplant his support obligations in a property settlement agreement.
A related issue in Bond v. Bond, A-111-11, is whether the trial judge erred by failing, sua sponte, to appoint a guardian ad litem to represent the interests of the son, Alexander, now 25, who resides in a group home in Connecticut that costs $63,000 a year.
Jonathan Bond’s attorney, Bonnie Frost, said putting the child-support money in a special needs trust would make more sense than simply sending it to his ex-wife, Wendy. It would allow the parents to tap into federal programs to help pay for Alexander’s housing, food and medical expenses.
Wendy agreed to creating the trust, but only if she continued to get the $50,000 a year on behalf of Alexander as well, said Frost, of Denville’s Einhorn, Harris, Ascher, Barbarito & Frost. "That would have disqualified [Alexander] from government benefits," she said.
Justice Anne Patterson noted that Jonathan made the motion to modify his support obligations without providing the trial judge with a copy of the proposed trust.
Frost acknowledged that, procedurally, it would have been better to include it, but added that the provisions for creating a special needs trust are established by clear rules created by the federal government and are commonly used.
Justice Barry Albin said the PSA was freely entered into and that Jonathan would have been able to look to the future. "The burden was on you to establish a change in circumstances," he said.
"In hindsight, we would like to say we would have done some things differently," Frost said.
Albin asked if Alexander would be better off with a special needs trust.
Frost replied that she believed so. "If something happens to my client, he might not be able to pay" child support, she said. With a special needs trust, Frost said, money for Alexander’s care would be ensured, and government benefits would be available.
Even though Jonathan didn’t ask for one, Frost said Essex County Superior Court Judge James Convery should have appointed a guardian ad litem for Alexander.
"Judge Convery and the Appellate Division missed the boat because they ignored Alexander," she said. "Judge Convery should have appointed a guardian."
Instead, Frost said, Convery became angry at Jonathan — an advertising executive who earns in the high six figures — for attempting to avail himself of federal benefits at taxpayers’ expense. Wealthy parents, she said, are not excluded from applying for federal help to care for special needs children.
Chief Justice Stuart Rabner asked if the application for federal assistance could be made before the trust was established.
"The trust has to be set up first before you can apply," Frost said.
Wendy’s lawyer, Paul Rowe, said Convery did not bar divorced parents from entering into agreements that call for special needs trusts as opposed to child-support payments.
All Convery found was that such a plan was not appropriate in this case, said Rowe, of Woodbridge’s Greenbaum, Rowe, Smith & Davis.
It is unfair that Convery has been "castigated" for supposedly "not caring about the child," said Rowe.
Jonathan, he said, "tempered his altruism."
"Was he really saying, ‘I’ll pay $50,000 into the trust,’" Rowe asked. "Not for a second. This was a child-support elimination application. This was an outlandish proposition."
In response to a question from Albin, Rowe said it is possible that Alexander’s condition would be worse if there was a special needs trust and if he depended on the federal government for assistance. "To get into some programs would take up to a decade," he said.
"Four judges have seen this for what it was," Rowe said, referring to Convery and Appellate Division Judges Philip Carchman, Clarkson Fisher Jr. and Linda Baxter, who affirmed him. "They saw it as an attempt to terminate $50,000 a year in child-support payments.
"That’s exactly what it is today," he said.