DOMENICO POLIMENI v. MARY CARUSO POLIMENI

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2187-04T52187-04T5

DOMENICO POLIMENI,

Plaintiff-Appellant,

v.

MARY CARUSO POLIMENI,

Defendant-Respondent.

_______________________________

 

Argued January 18, 2006 - Decided February 2, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part,

Hudson County, FM-09-271-99.

Harvey R. Pearlman argued the cause for appellant (Friedman, Kates, Pearlman & Fitzgerald, attorneys; Mr. Pearlman,

on the brief).

Respondent did not file a brief.

PER CURIAM

Plaintiff, Domenico Polimeni, appeals from a trial court order which reduced his child support obligation but to a lesser extent than he contended was justified by his changed financial circumstances. We affirm the order insofar as it reduced his child support obligation by $858 per month, but we remand this matter to the trial court for a plenary hearing on whether any further reduction is warranted.

These are the most pertinent facts. The parties were divorced in 1999. They have one child, Daniela, who was born in 1990. Under the terms of the property settlement agreement, with cost of living increases, plaintiff was paying $329 per week in child support. Plaintiff had always worked in the garment industry. Until 2001, he was earning a salary in excess of $100,000. Since 2001, he has been the owner and sole proprietor of a pattern-making business, which he claims provides him far less income than he had previously earned.

On July 26, 2004, plaintiff filed a motion to reduce or eliminate his child support obligation on the grounds that his income had been drastically reduced due to the limited profitability of the pattern business. He also contended that when he turned sixty-five on August 5, 2004, he would take social security retirement benefits and that, as a result, Daniela would also begin receiving benefits of $858 per month. In support of his motion he submitted a certification, a Case Information Statement (CIS), and his personal income tax returns. He also submitted evidence that he suffered from a foot condition known as plantar fascitis which he contended would limit his ability to work full-time in his business, because it would prevent him from standing on his feet for extended periods of time. Defendant opposed the motion, with a certification in which she attested that plaintiff was still capable of working despite his foot problems, and asserting that he had previously misrepresented that he was unemployed when he was working. In a reply certification, plaintiff denied ever having misrepresented his employment status, and controverted defendant's statements concerning his employment history.

On August 27, 2004, the trial judge heard oral argument. Both counsel agreed that plaintiff's child support obligation should be reduced by the amount of social security benefits Daniela was receiving. But they disagreed on whether plaintiff was entitled to a further reduction based on his alleged partial retirement and the alleged unprofitability of his business. The trial judge concluded that plaintiff had not presented sufficient financial information to give her an accurate picture of his current income. She did, however, conclude that "the plaintiff has met his burden for a change of circumstance, therefore a review of the child support shall be initiated." She ordered defendant to submit a CIS and ordered plaintiff to submit tax returns for his corporation for 2001 through 2003 plus a "year to date analysis" for 2004. The judge indicated that there would be further oral argument on September 21, 2004, and that there would be no plenary hearing on that date. Plaintiff's counsel sent the required financial information to the court on September 9, 2004. In the same letter, he advised the court (albeit with no supporting evidence) that his client was being denied visitation with Daniela, because she refused to see him.

The September 21 hearing did not take place, because of the judge's unavailability, and the attorneys were not able to reschedule it, apparently because of the judge's crowded schedule. On September 24, 2004, defendant's counsel submitted a response to plaintiff's September 9 letter, questioning the accuracy of plaintiff's income statements in light of the corporation's relatively large gross revenues. Later that same day, plaintiff's counsel faxed a reply, asserting that the corporation's gross income was offset by expenses that left little if any profit. He also asked the court to order mediation to address the visitation issue. On October 22, 2004, plaintiff's counsel wrote to the court indicating that his client was "anxiously awaiting the Court's decision." He wrote to the court again on November 9, 2004, urgently requesting a decision and offering to waive further oral argument in order to expedite the process. Plaintiff's counsel sent the judge another letter, similar in tenor, on November 24, 2004.

On December 9, 2004, the trial judge issued a decision on the application. In the court's order, which was supported by a written opinion, the judge reduced plaintiff's child support obligation by $858 per month, the amount that his daughter was receiving in benefits as the result of his social security retirement. In her opinion, she concluded that he had not sufficiently documented grounds for a further reduction, and she questioned his credibility based in part on defendant's contention that he had previously failed to disclose employment information. She also assumed that plaintiff could sell his business, although there was no evidence in the record that his sole proprietorship, in which plaintiff was the sole employee, had any sale value.

We conclude that the trial court erred in deciding plaintiff's application without holding a plenary hearing. In her preliminary ruling on August 27, 2004, the judge concluded that plaintiff had presented a prima facie case of changed circumstances. See Lepis v. Lepis, 83 N.J. 139, 157 (1980). Thereafter, plaintiff submitted additional proofs substantiating his claim that his income had been reduced significantly, from $100,000 to approximately $25,000. Defendant's certification, contesting the factual underpinnings of his claim, created material factual disputes that should have been resolved through an evidentiary hearing. Instead, the judge made credibility determinations based on the parties' conflicting certifications. This was error. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We can appreciate the concern that trial courts may legitimately have about imposing the expense of testimonial hearings on parties who have modest means. But plaintiff, having presented legally competent evidence which, if believed, would justify a further reduction in his support obligation, was entitled to a plenary hearing. Lepis, supra, 83 N.J. at 159.

 
Finally, we do not fault the trial judge's failure to address the issue of visitation, because plaintiff did not properly place that issue before the court. Our decision is without prejudice to plaintiff's right to file a motion with the trial court, supported by legally competent evidence, seeking relief with respect to visitation.

Affirmed in part, and remanded.

Perhaps to save litigation expense, defendant did not file an appellate brief. The record supplied to us indicates that the parties have already expended significant sums on counsel fees. On remand, reasonable litigants might consider participating in mediation on the issues of child support and visitation, before they incur further litigation costs that neither of them seems well able to afford.

(continued)

(continued)

6

A-2187-04T5

February 2, 2006

 


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