MADDALENA VIOLILLO(f/k/a FINCH) v. DAVID E. FINCH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6688-04T36688-04T3

MADDALENA VIOLILLO

(f/k/a FINCH),

Plaintiff-Respondent,

v.

DAVID E. FINCH,

Defendant-Appellant.

_________________________________

 

Submitted: September 12, 2006 - Decided September 29, 2006

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Hunterdon County, FM-10-376-04.

David E. Finch, appellant pro se.

Dale E. Console, attorney for respondent.

PER CURIAM

In this post-judgment matrimonial action, defendant David Finch appeals from several aspects of a July 12, 2005 order entered on cross-motions. As the parties have a litigious history, we will recite only those facts as are relevant to this appeal. Following a divorce trial in June 2003, the Family Part judge set defendant's child support obligation for the parties' three children (Jonathan, age sixteen; Andrew, age fourteen; and Elizabeth, age eleven) at $598 per week. The calculation was based on defendant's gross earnings of $221,520 as legal counsel for a New York construction firm and his representation that he earned no profit from his part-time New Jersey law practice, as well as plaintiff's gross earnings of $60,684 as a Spanish teacher in the Bernardsville public school system. By order of September 24, 2004, following a Newburgh hearing where the court denied defendant's motion to emancipate Jonathan, support was set at $589.62, comprised of $64.62 for Jonathan and $525 for the two younger children. Defendant was also obligated to pay nominal county college and transportation expenses for Jonathan. Defendant appealed and we affirmed. Finch v. Finch, No. A-1154-04 (App. Div. April 4, 2006).

On May l9, 2005, plaintiff filed a motion seeking various relief, including reimbursement of assorted items, some pursuant to prior orders, returnable July 1, 2005. On June 23, defendant responded with a cross-motion requesting, in pertinent part: (1) his child support obligation be reduced based on the changed circumstances of his remarriage and assumption of additional expenses; (2) plaintiff provide an accounting from her health insurance company for the children's health care benefits from 2003 through 2005; (3) plaintiff pay him $ll,722.50 for his half-share of the value of the furnishings and jewelry in the former marital home; (4) the court evenly split between the parties the $1,646.08 net balance paid by the buyers for delaying settlement of the former marital home escrowed in plaintiff's attorney's account; and (5) the court release the 30% remaining in plaintiff's attorney's account for defendant's overpayment of the October 2004 home equity loan.

Following oral argument, the court entered the July 12, 2005 order, clarified and supplemented by written findings of February 27, 2006 pursuant to our remand. The following provisions are the subject of this appeal: (1) denying defendant's request for a reduction in child support due to changed circumstances; (2) denying defendant's request to direct the Somerset County Probation Department to remove the biennial cost-of-living adjustment (COLA) it administratively added pursuant to an April 25, 2005 notice; (3) requiring plaintiff to supply authorizations to defendant to obtain dental and medical insurance statements in regards to reimbursements of the children's health care benefits in lieu of providing an accounting; (4) denying defendant's request for a credit for marital furnishings and jewelry; (5) denying defendant's request to share the buyers' delay payment; and (6) denying the release of funds to defendant without prejudice to him providing proof of the automatic deduction of the October 2004 home equity loan from his checking account.

On appeal, defendant asserts the following arguments:

POINT I

A TRIAL COURT'S DECISION REQUIRES REVERSAL WHEN IT IS UNSUPPORTED BY THE RELEVANT AND CREDIBLE EVIDENCE.

POINT II

OVERT BIAS BY THE TRIAL COURT PREVENTED THE DEFENDANT FROM RECEIVING A FAIR AND IMPARTIAL PLENARY HEARING BELOW.

POINT III

THE TRIAL COURT ERRED BY NOT DECREASING CHILD SUPPORT AS A RESULT OF THE DEFENDANT'S CHANGED CIRCUMSTANCES.

A. The Changed Circumstances of the Defendant Warranted a Reduction of Child Support.

B. The Trial Court Erred in Failing To

Impute Income to the Plaintiff Based on Her Time Off in the Summer as a Teacher.

C. The Alleged Financial Difficulties

of the Plaintiff Are Largely Self- Imposed.

POINT IV

THE TRIAL COURT ERRED BY NOT REQUIRING THE PROBATION DEPARTMENT TO ENFORCE THE SEPTEMBER 24, 2004 ORDER, AND HAVE THE DEFENDANT'S GARNISHED CHILD SUPPORT AMOUNT BE $589.62, EFFECTIVE SEPTEMBER 24, 2004.

POINT V

THE TRIAL COURT ERRED BY NOT REQUIRING THE PLAINTIFF TO PROVIDE AN ACCOUNTING AND FULLY ITEMIZED SCHEDULE FROM HER HEALTH INSURANCE COMPANY FOR THE YEARS 2 003 THROUGH 2005.

POINT VI

THE TRIAL COURT ERRED BY NOT ORDERING THE PLAINTIFF TO REIMBURSE THE DEFENDANT FOR THE FIFTY PERCENT OF THE VALUE OF THE MARITAL HOME FURNISHINGS AND FIFTY PERCENT OF THE VALUE OF THE PLAINTIFF'S JEWELRY, DESPITE THE FACT THAT JUDGMENT OF DIVORCE REQUIRED SUCH APPORTIONMENT OF THESE ASSETS.

POINT VII

THE TRIAL COURT ERRED BY NOT ORDERING THAT THE PARTIES SPLIT THE $1,646.08 ESCROW REMAINING FROM THE CLOSING OF THE SALE OF THE MARITAL HOME.

POINT VIII

THE TRIAL COURT ERRED BY NOT ORDERING THE RELEASE OF THE 30% REMAINING IN PLAINTIFF'S ATTORNEY'S ACCOUNT FOR THE DEFENDANT'S OVERPAYMENT OF THE OCTOBER 2004 HOME EQUITY LOAN PAYMENT.

We are not persuaded by any of these arguments and affirm.

The record is devoid of any evidence of bias by the trial judge that impeded defendant's ability to receive a fair and impartial determination of the matters before the court. We perceive no reason to dignify defendant's argument on this point with any further discussion. R. 2:11-3(e)(1)(E). Nor is there reason to elaborate upon defendant's arguments in Points IV, V and VIII with more than a few brief comments. Ibid.

As to Point IV, on April 25, 2005 defendant received notice of a biennial COLA adjustment of the June 2003 support order for $598 per week, administratively sent from the Somerset County Probation Department pursuant to R. 5:6B. The notice provided the increase would be automatically effective June 5, 2005 unless defendant objected and requested administrative review within thirty days, or filed a motion in the county where the child support order was initially issued. Defendant pursued neither of these options, nor did he even inform the probation department that support had been subsequently reviewed and modified and provide it with a copy of the September 24, 2004 Hunterdon County order. Therefore, on June 5, 2005, defendant's initial child support was automatically administratively adjusted by the CPI index, which apparently resulted in Somerset Probation garnishing his salary in excess of his obligation under the 2004 order. At oral argument on the motions, the following colloquy ensued:

THE COURT: Have you spoke to Probation about [the September 24, 2004 order]?

MR. FINCH: I've noticed Probation on this . . . motion, Your Honor. And I did place several calls into Probation. . . .

. . . .

THE COURT: Have you gone down to Probation Department?

MR. FINCH: No, Your Honor.

THE COURT: Why don't you go down and talk to them?

MR. FINCH: I will.

. . . .

THE COURT: Make an appointment, make some time, do it at a time that . . . you're in the Somerset area [with your part-time law practice there]. Go down to the Probation Department with the paperwork. They're very competent there, I'm sure you can straighten it out. Next point.

MR. FINCH: That's fine. I'll straighten it out.

Defendant, who is an attorney, was quite capable of timely responding to the notice and informing the probation department that child support had been reviewed and modified in 2004. He brought this problem upon himself by failing to do so. Under the circumstances, we discern no error by the court in declining to intercede in this administrative matter.

As to Point V, we are satisfied it was within the judge's discretion to order plaintiff to sign an authorization for release to defendant of the 2003 to 2005 dental and medical insurance statements showing reimbursement of the children's health benefits in lieu of providing an itemized accounting. Similarly, as to defendant's Point VIII argument, it was within the judge's discretion to require defendant to submit proof that payment of the October 2004 home equity loan had been automatically deducted from his checking account on September 5 before the $296 was released to him.

Defendant's asserted change in circumstances arose from his remarriage to a woman in the latter part of 2004, who was attending college and not working, and thus not contributing monetarily to the household. He complained his expenses significantly increased and he could no longer make ends meet. The trial court appropriately found defendant failed to demonstrate a prima facie showing of changed circumstances to warrant a reduction in child support. Defendant's July 20, 2004 CIS lists monthly expenses of $9,341, consisting of $2,637 for shelter (of which $987 was the home equity loan for the marital home that was paid off at settlement in September), no transportation expenses (presumably he has a "company car"), and $6,704 in personal expenses. His June 20, 2005 CIS lists monthly expenses of $21,642, consisting of $5,063 for shelter (a $3,043 mortgage and a $1,260 second mortgage), transportation expenses of $470, and $16,109 in personal expenses. We note defendant's alimony/child support obligation (included as a personal expense) only increased from $3,891 to $4,135. We further note defendant overstates Jonathan's monthly educational obligation as $400 in his 2005 personal expenses. Pursuant to the September 24, 2004 order, which we affirmed, defendant's obligation for the fall 2004 semester at county college, exclusive of books and lab fees, was $975. Based on the receipts in the record, defendant's obligation for Jonathan's spring 2005 tuition was $890 and for books was $181.75.

Moreover, as the trial judge noted, defendant's child support obligation was based on the finding in May 2003 that defendant was earning $221,510 from his New York job. At the time of the motion, defendant acknowledged his earnings from that job were $234,500. As the judge further noted, plaintiff's income had been initially miscalculated based on a twelve-month year, rather than a ten-month school year. Thus, her actual annual earnings had been $51,153.60, about $9,500 less than the figure upon which the child support calculations had been based. There is no basis to require plaintiff to find additional employment in the summer or to impute income to her for those two months. Moreover, as the judge recognized, any additional income she could earn from the summer employment would not likely bring her above the $60,684 figure initially used in the 2003 support calculation. It is somewhat ironic that defendant expects plaintiff to work in the summer to provide him relief from his support obligation occasioned by the additional expenses he has incurred because his new wife attends college and does not work.

Defendant's earnings are sufficient to pay his court-ordered child support obligation. As the trial judge noted, his children's needs "at the very least remain at the level recognized by [the judge who set the 2003 support order]." Defendant's purchase of a home with a significant mortgage and assumption of substantial additional expenses, including his new wife's educational expenses and student loan, are clearly not a basis for relief from this obligation. As we stated in Testut v. Testut, 34 N.J. Super. 95, 100 (App. Div. 1955), "[u]pon divorce the wife and dependent children are entitled to be maintained on the same social and economic plane as they enjoyed during the life of the marriage, unless the husband's subsequent financial condition through circumstances over which he has no control renders this inequitable." We further stated:

The obligation to support that family is paramount and the extent of the obligation measured in dollars is not to be limited or qualified by his remarriage. If it appears that his financial status is such that he can maintain his first family as its members were maintained prior to the divorce, the fact that a second marriage makes it burdensome or inconvenient to do so or occasions a deprivation of some desired luxuries or conveniences, or makes it difficult or impossible to live in the second marriage in the style and on the scale that his income would permit if the primary duty did not exist, provides no basis for reducing outstanding support orders . . . .

[Ibid.]

We are satisfied the judge's findings with respect to the marital home furnishings and jewelry are adequately supported by the evidence in the record. R. 2:11-3(e)(1)(A). We affirm his denial of defendant's request for additional credits substantially for the reasons set forth in the February 27, 2006 submission. Defendant was aware the marital house was being sold and its contents had to be removed. The record indicates defendant was aware of the appraisal valuation of the items and had ample opportunity to remove the items he wished to take from the house. Plaintiff's counsel informed defendant by letter of December l, 2004 of the location of the storage warehouse where plaintiff had placed the entertainment center and table that defendant had initially expressed an interest in retaining. He was advised if he did not pick up the items within two weeks, she would dispose of them and he would be responsible for the disposal costs. Defendant did not obtain his own appraisal of the marital property, or pick up these two items from the house or storage. Moreover, defendant took no affirmative steps to seek a credit for jewelry or personalty in excess of the estimate until he filed his cross-motion in June 2005. Plaintiff certified there was no jewelry and the balance of personal items were disposed of when the house was sold. It appears the $3,545 appraisal valuation, less the expenses, was factored into the overall credits given to the parties. The judge gave defendant recourse for the additional credit if he was able to prove, which he was not at the time, that either: (1) plaintiff retained any of the items set forth in the appraisal or (2) plaintiff sold or disposed of any items for which she received payment.

Finally, the closing of the marital home was postponed at the buyers' request from July l4 to September 8, 2004. Pursuant to court orders plaintiff was obligated to pay l00% of the primary mortgage, home equity loan, insurance and taxes, except for the months of August and September for which defendant was responsible to contribute 71% of the home equity loan. It appears from the record the Cendant first mortgage was $1,599.63 per month, real estate taxes were about $700 per month, homeowners insurance was about $30 per month, and the home equity loan was $987 per month. Thus, plaintiff had to pay substantial additional funds from July through September occasioned by the buyers' delay. For the months defendant contributed, plaintiff still paid almost four times more than defendant did. Although the trial judge could have given defendant a nominal share of the net $1,646.08 payment from the buyers, we are not convinced his failure to do so constituted an abuse of discretion meriting modification of the order.

Affirmed.

 

Newburgh v. Arrigo, 88 N.J. 529 (1982).

This number was taken from plaintiff's February 22, 2000 CIS and is probably a low estimate.

(continued)

(continued)

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A-6688-04T3

 

September 29, 2006