ERICA LUUP BLANEY v. JOHN CALDWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0152-05T5

ERICA LUUP BLANEY,

Plaintiff-Appellant,

v.

JOHN CALDWELL,

Defendant-Respondent.

__________________________________________________

 

Submitted July 3, 2006 - Decided July 31, 2006

Before Judges Collester and Weissbard.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County,

FD-15-2111-95.

Emily L. Gosnell, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Plaintiff Erica Blaney appeals from a July 28, 2005 order of the Family Part reducing the child support paid by defendant John Caldwell. The decision was rendered on the papers despite conflicting certifications. We reverse and remand for a plenary hearing.

Plaintiff and defendant were divorced on March 20, 1998 and had one child, Alexandria, born December 1, 1990. The child has lived with plaintiff continuously since birth. On June 8, 1995, plaintiff was awarded custody, and defendant was denied visitation. On June 12, 1995, defendant's child support was established at $154 per week. By motion dated May 2, 2005, defendant moved for a reduction in child support, as well as to change custody and visitation arrangements, certifying as follows:

My wages have decreased due to an employment change, the custody order is not in the best interest of Alexandria if her mother were to have an accident. The visitation order needs to be changed to allow visitation with my family. The income of Erica needs to be verified, and the medical insurance provider needs verified the last order requiring us both to provide medical.

Defendant requested: (1) a decrease in support payments from $154 to $50 per week; (2) joint legal custody of Alexandria with plaintiff as primary custodian ("If something were to happen to her mother, I would like her to have another choice other than the state as her guardian"); (3) thirty days of uninterrupted visitation each year during the summer with a 50% reduction in support and 50% of transportation expenses "to and from;" and (4) a monthly statement of arrears from the Probation Department. Attached to his certification was a financial statement indicating his employment in "sales" with Kansas Aviation of Independence at a salary of $510 per week. Also noted on the statement were alimony/child support payments of $300 per week under a California order, $380 per week as the gross income of the other parent of the child in California, and $75 paid for child care to a provider in Kansas where defendant resides. Defendant also attached payroll information supporting his statement as to current wages.

In opposition, plaintiff filed a lengthy certification, as follows:

1. I am the Plaintiff in the above captioned matter. I am the mother of Alexandria Luup and make this certification in opposition to the Defendant's application for a change in custody arrangements and a reduction in his support obligation.

2. Defendant wants joint custody of our daughter. I have always had sole custody of Alexandria, herein after referred to as Alex. Alex is 14. She has always lived with me and her three half sisters. Upon the advise [sic] of my attorney, the Defendant has failed to show any change of circumstances warranting a modification of the prior order. Defendant is not involved in Alex's life and has taken no steps whatever to become involved in her life. After a few attempts on the Plaintiff's part to force Alex and the defendant together in hopes of some kind of father/daughter relationship, it has failed; only to reinforce Alex's feelings about the Defendant and how she adamantly refuses to have any kind of relationship with him. She has only seen the Defendant two times and her grandmother once out of all of these years. Alex has no desire or need to attend the visitation because she does not feel like a part of their family. She complains to me that the Defendant and his wife have often made her feel very uncomfortable when she is there. She has no real relationship with the Defendant or his family and now has told me that she doesn't want to go on this visitation at all. There has been very little communication between Alex and the Defendant over the last five years. As she grows older, I don't know how much longer I can't force her to go where she doesn't want to go. Alex is also requesting the court to please reinforce the original court order of June 8th 1995 where the Defendant lost all rights of visitation and custody. It is also Alex's request, that she no longer has to have any kind of communication with the Defendant as stated in her letter address to the Court, which she wrote without prompting from me. I attach Alex's letter to this certification.

3. Defendant requests a decrease in his support obligation. I adamantly oppose his request. Defendant's reduction in income is purely a result of his voluntary changes of employment. Defendant pretended that Alex did not exist until the year 2000. I was the sole support of Alex during this period. He had spent 8 to 12 years in the marine corps and possibly other time in the reserves. I am unaware of whether he has a pension from his services. He has made every effort to hide his finances from me, including the time when we were together. He was pursued by the Board of Social Services, after I was unable to work due to being injured in two different car accidents and on welfare from 1995 to 96. He voluntarily left the well salaried position for General Dynamics that he held in Saudi Arabia, which provided excellent benefits as well as a good salary, declined good paying employment in Arizona and took his current job in Kansas which pays well less than what he has earned in the past. He now wants Alex to pay the price for his arranging his life to suit his own needs and desires. I believe that Defendant owns the house in which he lives in Kansas. The house had been rented out during his employment abroad, but since he now has the same Kansas address that I was aware of in the past, I assume Defendant lives there again. The house is on 50-100 acres in rural Kansas. It was purchased for a paltry $8000 a long time ago. I believe that the court needs to order full financial disclosure, not merely defendant's pay stubs. Upon the advise [sic] of my attorney the Defendant has failed to establish change of circumstances sufficient to modify his support obligations.

4. I object to Defendant's request for a 50% reduction in child support and an order that I pay 50% of the transportation costs for Alex's visitation with her father. My income consists solely of child support. It is fair to say that I am surviving and keeping a roof over the head of myself and my children, but that I don't have a dime to spare. My car is falling apart and I am in desperate need of a new vehicle. I am in the process of obtaining employment in a nursing home, but it is not entirely settled at this time. My income is extremely limited, consisting of child support for my daughters, and Alex leaving for a month does little to reduce my basic costs, such as rent, utilities, transportation, etc. Due to creditor's collection efforts, I have no choice but to consider filing bankruptcy at this time. At the present time I am actively seeking full time work, now that child care is not as much of a problem as it had been in the past. It wasn't until late 2000 that the Defendant has started to pay the Plaintiff child support. Prior to 2000, I was the sole support of Alex. I believe that the Defendant's older son, for whom he [is] paying child support for in California, will be 18 very soon, if he is not already and therefore his child support obligation for that child may well be ending.

Plaintiff and defendant were notified that the motion would be heard on the papers without the necessity of a court appearance. On July 28, 2005, the Family Part judge, after noting that an order of August 12, 2003 had required defendant to pay $180 per week effective June 17, 2003, comprising $154 child support and $26 arrears, based on defendant's then weekly gross income of $1000, ruled as follows:

Defendant/Father's Motion.

1. Decrease of CS Payments.

GRANTED, as the Court FINDS that DF has made a sufficient showing of changed circumstances, warranting a modification of his child support obligation in accordance with Lepis v. Lepis, 83 N.J. 139 (1980). The Court FINDS that DH's existing CS obligation in the amount of $180 per week was initially established by a Court Order entered on August 12, 2003 under the docket number FD-15-2111-95S. That order was based on DF's gross taxable income of $1,000 per week as of 8-12-03. The Court further FINDS that DF's YTD pay stub from Kansas Aviation of Independence LLC, dated April 8th, 2005, reveals YTD income of $6,400.50. The Court also FINDS that pursuant to DF's CIS, he has a gross taxable income of $510 per week.

Considering the above circumstance, the Court FINDS that DH has had a substantial change in circumstances, i.e. a change in employment with lower pay. Thus, the Court ORDERS that DH's CS obligation shall be reduced, effective 5-1-05, the filing date of DH's instant motion. The Court FINDS that the proper amount of CS is $97 per week, and that the DF shall continue paying $26 per week contributing towards $879 in arrears. Thus the total CS to be paid per week is $123. Ocean County Probation Department shall adjust its records accordingly in account #CS 61747245A. The Court utilized PM's 8-12-03 CIS to calculate her contribution to CS because it is the most recent information available.

With respect to PM's argument that DF has more assets than he discloses in his CIS, the Court finds that a reply is not designed to make a new request, as the other party must have sufficient notice to reply. If PM wishes to engage in financial discovery, she should make an appropriate motion, rather than a reply certification, to the Court.

2. Joint and Legal Custody

DENIED, as the Court is not satisfied that Defendant has demonstrated a substantial change in circumstances warranting a modification of the custody arrangement. The Court FINDS that on 6-8-95 Judge Fall denied DF visitation.

DF has failed to explain why visitation was denied by that Court order. DF has also failed to account for why joint custody has not been sought in any prior motion to the Court in the past 15 years. Since due to DF's inadequate certification, there is no reason to find that circumstances have changed since 6-8-95, the Court will not alter any custody arrangement at this time.

3. Visitation

DENIED, for the same reasons listed above, the Court FINDS that Defendant has failed to demonstrate a substantial change in circumstances warranting a change in visitation.

4. CS Statements

GRANTED IN PART, the Court hereby ORDERS the Ocean County probation department to instruct DF on how to attain a monthly statement of his CS payments for accounting purposes. DF may send a copy of this order to the Ocean County probation department for such instructions.

The judge provided a child support guideline worksheet to support his reduction of defendant's payments.

On appeal plaintiff argues that it was error to reduce defendant's child support payments without a plenary hearing. We agree.

Plaintiff's opposition certification placed in dispute whether defendant's reduced income was the result of a voluntary act on his part. See Halliwell v. Halliwell, 326 N.J. Super. 442, 448-49 (App. Div. 1999) (citing Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992)). She also argued, at least inferentially, that a reduction was inequitable given defendant's substantial assets in Kansas. Cf. Connell v. Connell, 313 N.J. Super. 426, 433-34 (App. Div. 1998).

As Judge Conley stated in Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995), certif. denied, 142 N.J. 455 (1995):

We recognize that not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing. Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988). But we have repeatedly emphasized that trial judges cannot resolve material factual disputes upon conflicting affidavits and certifications. E.g. Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968).

The flexibility which the rules provide to the trial judge to dispense with unnecessary oral argument, R. 5:5-4, does not give the judge unfettered discretion to decide a matter on the papers when there are disputed issues that require "findings of facts on properly adduced evidence." Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). Such was the case here. While, contrary to plaintiff's argument, defendant did make out a prima facie case of changed circumstances based on the substantial reduction in his income ($1000 v. $510 per week), plaintiff was entitled to an evidentiary hearing on the disputed issues raised by her opposing certification. We remand for that purpose.

 
Reversed and remanded. We do not retain jurisdiction.

It is not clear if the $75 is weekly, monthly, or yearly.

(continued)

(continued)

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A-0152-05T5

July 31, 2006