JONATHAN D. GORDON v. JANET S. LEVICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5656-04T25656-04T2

JONATHAN D. GORDON,

Plaintiff-Appellant,

v.

JANET S. LEVICK,

Defendant-Respondent.

_______________________________________

 

Submitted May 30, 2006 - Decided July 13, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-08-03.

Jonathan D. Gordon, appellant pro se.

Sunshine, Atkins, Minassian & Tafuri, attorneys for respondent (Robert J. Tafuri and Joshua T. Buckner on the brief).

PER CURIAM

Plaintiff Jonathan D. Gordon appeals from an order entered on June 3, 2005, which granted judgment in favor of defendant Janet Levick in the amount of $56,287.52 for certain unpaid child support obligations and denied plaintiff's application to modify his support obligations on the basis of changed circumstances. Plaintiff also appeals from an order entered on June 24, 2005 denying his motion for reconsideration. For the reasons that follow, we affirm in part, reverse in part and remand for a plenary hearing.

I.

The parties were married on November 25, 1984 and three children were born of the marriage: L.G., S.G. and J.G. The marriage was dissolved by a judgment entered on June 21, 2002, which incorporated the terms of the parties' property settlement agreement (PSA). At the time they executed the PSA, plaintiff had an income of about $85,000 per year and defendant had an annual income of approximately $168,000, although in previous years, before she became disabled and began to receive disability benefits, defendant earned about $500,000 annually.

In the PSA, the parties agreed that certain monies in defendant's retirement account would be divided equally pursuant to a Qualified Domestic Relations Order (QDRO). Both parties waived any claim for alimony. The parties agreed that they would share joint legal and residential custody of the three children but acknowledged that L.G. had been living primarily with plaintiff. The PSA requires the parties to consult with each other "on all major issues pertaining to the health, education and welfare of the children." It also provides that the parties will share time with their children "on an alternating week basis, as they have done in the past, with the commencement and transition times to remain the same . . . ."

In addition, the PSA provides that in view of their "present financial circumstances," the allocation of parenting time and other financial arrangements respecting the children, neither party would have an obligation to pay direct child support to the other. The agreement additionally states:

After giving due consideration to the impact of the expense of the children's private school and camp expenses, the parties have reviewed the issue of the applicability of the Child Support Guidelines, and have made the determination that the same shall not be applied in this matter.

The PSA further provides that defendant will pay the first $46,000 each year for the cost of the children's private education and summer camp expenses, and the parties will share equally the remaining expenses. The parties also are equally responsible for unreimbursed medical expenses for the children and plaintiff is required to make quarterly payments of $1,000 towards the children's clothing allowances.

In the fall of 2004, plaintiff filed a motion in the trial court for relief from his support obligations on the basis of changed circumstances. At the time, plaintiff was unemployed. The judge entered two orders on November 19, 2004 respecting the motion. In one order, the judge denied plaintiff's motion for relief from his financial obligations. However, the judge suspended plaintiff's obligation to pay his share of the unreimbursed medical, psychiatric and drug expenses for the children and defendant was ordered to pay those costs "subject to allocation." Defendant also was ordered to make immediate full payment of J.G.'s tuition to ensure that the child remained enrolled in her school.

In the companion order, the judge directed plaintiff to pay $5,000 for the children's clothing allowances from May 15, 2002 to September 15, 2004; one-half of the fee for certain dental work; and two payments of $3,516.80 for tuition. The judge reserved decision on the amount that plaintiff owed defendant for his share of school and camp expenses and unreimbursed medical expenses in the period from May 15, 2002 through May 15, 2004. The judge also ordered that plaintiff's support obligations be satisfied before plaintiff received his share of the defendant's retirement account.

On or about March 28, 2005, defendant filed a motion to enforce litigant's rights. Defendant sought an order compelling plaintiff to pay the quarterly clothing allowances, his share of the children's camp and school expenses, as well as his share of certain unreimbursed medical expenses. Defendant additionally sought an order requiring plaintiff to pay his share of the children's tutoring, ancillary educational and extracurricular expenses. Defendant asked that the monies owed be deducted from plaintiff's share of defendant's retirement account.

Plaintiff countered with a motion in aid of litigant's rights and a motion seeking modification of his child support obligations. Although plaintiff had again become employed, he was earning less than he had been earning at the time the parties executed the PSA. Plaintiff asked the judge to relieve him of his obligations for expenses incurred on behalf of the children. Plaintiff additionally asserted that the Child Support Guidelines should be applied; L.G. should be declared emancipated because she was 19 years old and going to be married on June 19, 2005; and defendant should be precluded from making unilateral decisions respecting the education and health care for the children.

The judge heard argument on the motions on May 13, 2005 and on that date entered two orders. In one order, the judge denied plaintiff's motion to declare defendant in violation of plaintiff's rights as a litigant; ordered defendant to sign papers necessary to effectuate the transfer of plaintiff's share of defendant's retirement account; denied plaintiff's motion for relief from his financial obligations for the children, but ordered that defendant pay all tutoring, ancillary educational costs and extracurricular fees for the children "subject to allocation;" and ordered defendant to consult with plaintiff on certain "important issues relating to the health, education or welfare of the children." In the accompanying order, the judge denied defendant's motion for attorneys' fees and costs.

On or about May 25, 2005, plaintiff filed a motion for reconsideration. Plaintiff sought reconsideration of the judge's findings on the child support arrears, arguing that the judge did not "fully" consider plaintiff's proofs and did not afford plaintiff a plenary hearing before determining the amount due. Plaintiff requested that the judge reconsider his findings regarding changed circumstances and his determination that defendant had not violated plaintiff's rights as a litigant despite defendant's "egregious violations" of the PSA. Plaintiff also asked that the judge reconsider the denial of his application for a declaration that L.G. is emancipated. In response, defendant filed a motion for an award of attorneys' fees and costs.

While the motions were pending, the judge entered an order on June 3, 2005 which found defendant liable for arrears in the amount of $56,287.52. The June 3, 2005 order further provides that, "The defendant is hereby entitled to a lien against plaintiff's share of the monies to which plaintiff is entitled from the Paine Webber retirement account once received that is in the process of being rolled over to him by way of QDRO."

Plaintiff's motion for reconsideration and defendants' motion for counsel fees and costs were heard on June 24, 2005. The judge entered four orders on that date. The judge denied plaintiff's application for a plenary hearing on plaintiff's contention that he should be relieved of certain financial obligations due to changed circumstances. The judge also denied plaintiff's motion to find defendant in violation of plaintiff's rights as a litigant. The judge declared L.G. emancipated as of June 19, 2005, and additionally ordered defendant to authorize Paine Webber to immediately transfer plaintiff's share of defendant's retirement account upon receipt of certain information from plaintiff. The judge denied without prejudice plaintiff's application to reduce child support by 33% based on the emancipation of L.G. The judge also denied defendant's motion for attorneys' fees and costs.

In this appeal, plaintiff raises the following points for our consideration: 1) the judge erred by finding defendant liable for arrears without holding a plenary hearing; 2) plaintiff established a prima facie case for relief from his support obligations on the basis of changed circumstances and the judge erred by failing to conduct a plenary hearing on that issue; and 3) the judge erred by refusing to revisit the child support obligations according to the Child Support Guidelines and based on plaintiff's changed circumstances.

II.

We first consider plaintiff's contention that the judge erred by finding him liable to defendant for arrearages in the amount of $56,287.52 without affording him a plenary hearing. Plaintiff argues that because the judge took no testimony regarding the monies allegedly owed, the judge had "no way of knowing" whether the amounts claimed were "accurate or merely contrived." Plaintiff also argues that he raised genuine issues of material fact concerning the legitimacy of the alleged arrears.

Defendant set forth certain facts concerning her claim in a certification filed in the trial court on or about March 28, 2005. Defendant stated that plaintiff had been required by the November 19, 2004 order to reimburse defendant for certain tuition costs, specifically $7,033.60 for payments made in October and November 2004 for J.G.'s tuition. Defendant also sought $5,275.20, representing one-half of J.G.'s tuition payments made in December 2004, January 2005 and February 2005. Defendant asserted that plaintiff was $5,000 in arrears on his quarterly clothing allowance payments. In addition, defendant sought $1,000 for the clothing allowance payment due on December 15, 2004.

Defendant also noted that plaintiff had not paid his share of the children's school and camp expenses that exceed $46,000 each year. Defendant stated that from May 15, 2002 through May 14, 2003, the total expenses for school and camp were $59,758.70 and plaintiff was required to pay $6,879.35, which is one-half of the amount over $46,000. Appended to defendant's certification was a list of defendant's payments for school and camp expenses for this period, identifying the payee, the check number and the amount paid.

Defendant additionally requested that the judge order plaintiff to pay his share of the children's school and camp expenses for the period from May 16, 2003 through May 15, 2004. According to defendant, the total of these expenses was $54,236.98, and plaintiff was required to pay $4,118.49, which is one-half of the amount over $46,000. Attached to the certification was a list of defendant's school and camp payments for this period.

In addition, defendant asked the judge to order plaintiff to pay his agreed upon share of the children's school and camp expenses for the period from May 16, 2004 through February 23, 2005. Defendant asserted that she had incurred expenses in the amount of $61,082.30 and plaintiff was obligated to pay $7,541.15 of this amount. A list of defendant's expenditures for this period was attached to the certification.

Defendant also sought $4,395.20, which is one-half of the unreimbursed expenses incurred by defendant from May 15, 2002 to May 14, 2004 for children's medical care. Defendant requested an additional $1,615 for the unreimbursed expenses incurred from May 15, 2004 to February 23, 2005. Defendant additionally asked that plaintiff be ordered to pay his share of tutoring and ancillary educational expenses in the amount of $3,469.50, for the period from May 15, 2002 to May 14, 2004, and $4,684.83 for May 15, 2004 to February 21, 2005.

Defendant noted that she had advanced $226,991.37 for the children's expenses and plaintiff's share was only $51,012.62. Defendant said that she had paid the expenses and plaintiff had refused to reimburse her for his share of these costs. Defendant asserted, "Now that he is employed and is going to be receiving his one-half share of the retirement account, there is simply no reason why he cannot live up to his financial obligations for our children."

On April 7, 2005, plaintiff filed a responding certification. Plaintiff asserted that he had been making the clothing allowance payments "all along" and he was "shocked" to discover that defendant had not cashed the checks he provided to her. Defendant said that he was willing to pay defendant $5,000 for the checks "already written" plus the $1,000 payment for March 2005.

Plaintiff asserted that he did not have the money to pay J.G.'s tuition in September 2004 and he could not afford to pay his share of the tuition expenses. Plaintiff stated that his mortgage payments were consuming his entire annual salary. Plaintiff claimed that, after he moved into his new home, he faced a "catastrophic increase" in his property taxes and he was forced to use his existing retirement accounts to avoid foreclosure. Plaintiff stated that he had almost spent the whole of his retirement funds and he needed his share of the monies in defendant's retirement account in order to remain in his house. He asserted, "I simply do not have the money to pay for [the] mortgage, my bills" and the tuition payments.

Plaintiff also stated that defendant's calculation of the amounts due for the children's school and camp expenses was "flawed." He said that the amounts due should have been calculated from September through the following summer and defendant's calculations were "confusing." Plaintiff asserted that the list includes expenses for which he was not responsible under the PSA. Plaintiff pointed out that under the PSA, he is required to pay his share of "tuition, school busing, mandatory supplies, mandatory books and mandatory fees, camp tuition and mandatory fees. . . ." Plaintiff said that, by "packing the list," defendant was proceeding in bad faith.

Plaintiff also stated that he had never received an itemized school bill or receipt for any camp expense. Plaintiff said that he received a list of expenditures but he had to take the list on "blind faith" as to its accuracy. He added that one of the expenditures was apparently for a "camp reunion party or the like," which was not a "mandatory, essential fee." Plaintiff said that he should not be required to pay for such "social events" since he alone bears the cost of similar events when the children stay with him.

Plaintiff further asserted that there were "thousands of dollars" listed by defendant as expenses "which are not even legitimate expenses." Plaintiff stated that defendant never consulted with him regarding some expenditures, such as those for Camp Kanfei and others which required travel outside the United States. Plaintiff asserted that such consultation was required by the PSA.

Plaintiff also disputed defendant's demand for unreimbursed medical expenses for the children. Plaintiff said that he was entitled to a credit for certain payments he made for the children's care. Plaintiff challenged defendant's claim for tutoring expenses, asserting that he was not responsible for those costs under the PSA.

The judge considered the motions on May 13, 2005. The judge did not conduct a plenary hearing on defendant's application. When plaintiff sought to interpose an objection to defendant's claim, the judge stated, "I'm not gonna let you interrupt." The judge said that the issues had come up before the plaintiff had been ordered to pay the expenses but he had not paid.

Plaintiff endeavored to point out that defendant had not provided sufficient back up for her claim but the judge rejected the argument. He said that plaintiff or his prior attorneys had been given documentary support for the claims. The judge stated, "I'm not doing it again." He added:

Take me up on appeal. We've been through this before, we've heard it, we've designated, it's been submitted to [plaintiff's attorney] - I forget who was in front - before him. This isn't the first time I've seen it, it's probably the fifth time I've seen it. You've seen it. If they haven't shown it to you go make your claim against your prior attorney. You are an attorney, this is not new to you.

The judge added, "You've had the backup, you've had all the information, you just don't want to pay." The judge awarded defendant the $51,012.62 she sought in the certification, plus an additional $5,275.32 for tuition expenses.

"The enforcement, collection, modification and extinguishment of unpaid arrearages in support are within the discretion of the court and each case demands careful examination and weighing of all essential facts." Dunne v. Dunne, 209 N.J. Super. 559, 571 (App. Div. 1986). "When dealing with support arrearages, for example, 'equitable considerations dictate whether, and to what extent, the defending husband should be forced to pay arrearages.'" Moore v. Moore, 376 N.J. Super. 246, 252-53 (App. Div.), certif. denied, 185 N.J. 37 (2005) (quoting Tancredi v. Tancredi, 101 N.J. Super. 259, 261 (App. Div. 1968)).

We are convinced that the judge erred in entering judgment for defendant without making the required "careful examination and weighing of all essential facts." Dunne, supra, 209 N.J. Super. at 571. Plaintiff raised genuine issues of material fact as to whether defendant was entitled to reimbursement for the expenses identified in defendant's certification. "Where there are factual disputes such as these, the moving party bears the burden of proof to demonstrate that the expenses she is claiming are both legitimate and reasonable." Accardi v. Accardi, 369 N.J. Super. 75, 87 (App. Div. 2004). "A mere listing of the purported expenses, without more, is insufficient." Ibid. In such cases, "[a]n evidentiary hearing is necessary . . . before a motion judge can make a fair and reasonable determination on the disputed issues." Ibid.

In our view, the judge erred in accepting defendant's submission as a basis for awarding monetary relief without requiring defendant to present documentary proof of her payments and without conducting a plenary hearing. The judge insisted that plaintiff or his attorneys had been provided with all of the relevant documents but the record does not support that finding. Moreover, the judge asserted that he had addressed the issues of reimbursement numerous times in the past. While some aspects of the claim were dealt with in November 19, 2004 order, all of the expenses sought by defendant were not addressed in that order.

We therefore reverse the provisions of the order of June 3, 2005 awarding defendant $56,287.52 for child support arrears and imposing a lien in that amount on plaintiff's share of defendant's retirement account. We remand for a plenary hearing on defendant's claim.

III.

We next consider plaintiff's contention that the judge erred by denying his motion to be relieved of his child support obligations on the basis of changed circumstances. Plaintiff asserts that he made a prima facie showing of changed circumstances and the judge erred by failing to conduct a plenary hearing and make appropriate findings of fact. We disagree.

Child support obligations are subject to modification based on changed circumstances, regardless of whether the obligations were established by the court or by the agreement of the parties. Lepis v. Lepis, 83 N.J. 139, 146 (1980); Dolce v. Dolce, 383 N.J. Super. 11, 18-19 (App. Div. 2006). To determine whether there has been a change in circumstances that warrants a reduction in support, a comparison must be made between the parties' "financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). The "moving party has the burden of establishing the circumstances that warrant the change." Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

If the movant presents a prima face case of changed circumstances, the judge should examine the parties' financial situation, and a hearing should be held if there is a dispute over material facts. Lepis, supra, 83 N.J. at 157-59. However, not every motion for a reduction in the support obligation requires a hearing. Rather, the party "must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary." Id. at 159.

In this case, plaintiff asserted that in the three years since the PSA was executed, he had been unemployed for certain periods. Plaintiff became re-employed in January 2005 and was earning $15,000 less than he had been earning when the parties executed the PSA. Plaintiff sold his former residence, which had a mortgage of $100,000, and purchased a new home at a cost of $435,000, with a mortgage of $417,000 in 2005. Plaintiff's monthly mortgage payments were $6,749. The taxes on the new home "were doubled." Plaintiff insisted that he was in a financial bind and could not meet his obligations under the PSA for the children's expenses.

In denying plaintiff's application, the judge determined that plaintiff's reduction in salary was not sufficient to warrant a reduction in the support obligations. The judge also placed great weight on the fact that plaintiff had assumed new financial obligations which purportedly rendered him financially incapable of meeting his obligations for the children. Indeed, in his certification, plaintiff stated that his salary was devoted entirely to meeting the mortgage payments and he had to withdraw monies from his retirement accounts to avoid foreclosure.

The judge found that plaintiff placed himself in these financial difficulties and he would not allow plaintiff to rely upon the mortgage payments to avoid his financial obligations for the children. The judge made the following findings on the record:

Knowing [that you have had financial difficulties in the past] you [go] out and you take a zillion dollar mortgage and put yourself in a position of paying a $400,000 mortgage, 60 or $70,000 a year and then you stand here saying I can't pay for my kids because I don't have any money. You're the one who created the problem. You created - nobody told you to take a $400,000 mortgage. If you can't afford it you don't take it. If you can't afford to pay your child support how the hell can you go out and tell me I'm gonna take a . . . $400,000 mortgage and tell me I can't pay for it because I can't pay for my kids? Your kids come before the mortgage. Don't take a $400,000 mortgage when you can't afford it, because you can't.

We reject plaintiff's assertion that the judge should have conducted a plenary hearing on his allegations of changed circumstances. There were no genuine issues of material fact warranting such a hearing. Plaintiff's factual contentions were set forth in his certification and the facts were essentially undisputed.

We also are convinced that there is ample support in the record for the judge's findings. The judge properly found that the reduction in plaintiff's income from $85,000 to $70,000 is not substantial. Moreover, the record established that plaintiff had brought upon his own financial difficulties by unwisely taking on financial burdens despite the fact that he previously had been unemployed and earlier had problems meeting his child support obligations. Because the judge's findings are supported by substantial credible evidence, those findings will not be disturbed. Rova Farm Resort, Inc. v. Investors Ins. Co., 65 N.J 474, 484 (1974). Based on these findings, the judge properly found that plaintiff had not carried his burden of showing changed circumstances and there was no basis to terminate all of his obligations under the PSA for child support.

Plaintiff argues, however, that some adjustment should have been made to his support obligations because L.G. was declared emancipated as of June 19, 2005. We note that the judge did not rule out a modification of the support obligations based on L.G.'s emancipation. When the matter was before him on June 24, 2005, the judge stated that he was denying plaintiff's application for a one-third reduction of his support obligations because L.G. was emancipated. The judge stated that he did not have sufficient information to deal with the issue. The judge added that the parties could make a "proper" application and he would consider it. Indeed, the orders entered on June 24, 2005 denied without prejudice plaintiff's application for a one-third reduction of child support and his application to re-calculate child support based on two rather than three children.

Accordingly, plaintiff's application for a reduction in his support obligations based on L.G.'s emancipation may be renewed in the trial court on remand. In that regard, plaintiff asserts that the judge should apply the Child Support Guidelines. Defendant responds by arguing that the terms of the PSA should not be changed because the parties agreed that the Guidelines would not be applied and structured instead a "unique child support arrangement" in the PSA. On remand, the judge should consider whether changed circumstances warrant replacement of the parties' agreement by an award determined in accordance with the Guidelines.

Affirmed in part, reversed in part and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

 

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A-5656-04T2

July 13, 2006