PETER J. CAMMALLERI v. LINDA A. CAMMALLERI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5893-06T31569-07T1

PETER J. CAMMALLERI,

Plaintiff-Appellant,

v.

LINDA A. CAMMALLERI, n/k/a

LINDA A. LICCARDI,

Defendant-Respondent.

_________________________________

 

Submitted September 22, 2008 - Decided:

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-590-95.

Corinne Campi, attorney for appellant.

Cohn, Bracaglia & Gropper, attorneys for respondent (Jill L. Gropper, of counsel and on the brief; Nishall N. Jairam, on the brief).

PER CURIAM

In this matrimonial matter, plaintiff Peter J. Cammalleri (Peter) appeals from the October 30, 2007 order denying his motion for modification of his child support and other child-related obligations based upon his alleged mental disability. Peter contends that the motion judge's finding that his disability was temporary was not supported by the evidence and that the judge failed to properly apply the law. We reject these contentions and affirm.

Peter and defendant Linda Cammalleri (Linda) were married on March 24, 1985. One child was born of the marriage, J.P.C., born June 24, 1990. A Dual Judgment of Divorce was entered on September 9, 1996, which incorporated a property settlement agreement (PSA). The PSA required Peter to pay alimony of $3333.33 per month, an additional $2141.67 per month as non-taxable alimony for five years, and two additional payments totaling $6500 and to pay the mortgages, taxes and insurance on the marital home. The PSA did not initially require Peter to pay child support, but it provided that the parties would renegotiate child support upon the termination of Peter's alimony and marital home obligations. However, the PSA required Peter to pay for all of the child's private school, undergraduate and transportation expenses and unreimbursed medical, dental and prescription drug expenses and to maintain medical insurance for the child.

Peter was a successful equity trader, whose total income was $583,646 in 2001, $412,536 in 2002, $569,880 in 2003, $580,474 in 2004, $521,245 in 2005 and $705,396 in 2006. In October 2000, Peter's alimony and marital home obligations ceased and his child support obligation became choate.. By order of April 20, 2001, Judge Paul Armstrong set child support at $3700 per month retroactive to October 2000 and granted Linda other relief. Peter did not appeal that order.

On June 1, 2007, Peter was laid off from his employment. He filed a pro se motion to modify his child support obligation based upon changed circumstances stemming from the termination of his employment. Peter never mentioned any mental health disability. On July 12, 2007, Judge Marino denied Peter's motion without prejudice, concluding as follows:

Plaintiff was laid off on June 1, 2007. At this point the Court cannot make a determination that Plaintiff's current financial situation is anything more than a temporary change of circumstances, which would not merit a modification of support.

The judge also ordered Peter to pay child support arrears and other child-related expenses.

Peter did not comply with the July 12, 2007 order. As a result, on or about September 5, 2007, Linda filed a motion to enforce litigant's rights. Peter, now represented by an attorney, filed a cross-motion again seeking to modify his child support and other child-related obligations. He claimed for the first time that he suffered from recurrent depression and chronic anxiety and that he was diagnosed with Bipolar I Disorder, which rendered him totally disabled and unable to work. He also claimed to be receiving disability benefits from two private disability policies of $17,525 per month (or $210,300 yearly), which was significantly less than the net amount he earned in 2001 upon which the child support amount was calculated.

In support of his cross-motion, Peter submitted a letter from his treating psychiatrist, dated August 23, 2007, stating as follows, in pertinent part:

[Peter] suffers from Generalized Anxiety Disorder and Major Depressive Disorder, Recurrent. He is currently taking multiple medications, including a mood stabilizer . . . and anti-anxiety medications . . . as well as medications for insomnia . . .

At present, due to [Peter's] mood instability, anxiety and insomnia, he is unable to be employed.

. . . .

I cannot predict when or if he will be employable in the future.

. . . .

He is currently disabled; whether this will remain a chronic condition or will remit is indeterminate at this time.

Peter also submitted a letter from a licensed clinical social worker, dated September 1, 2007, stating as follows, in pertinent part:

I do anticipate that [Peter] will be able to return to work in the future, but it is unlikely he will function at the same level that he did prior to the onset of his psychiatric illness. It is unclear at this time when he will be able to resume working at all.

Peter also submitted proof of his receipt of private disability benefits. However, his application for Social Security Disability benefits was denied.

In a written opinion, Judge Reed denied Peter's cross-motion, finding as follows:

[Peter] has not shown any significant change in circumstances since the last order of July 12, 2007. There is no sufficient showing that this disability is anything but temporary, as demonstrated by the letter presented by [Peter] from his psychotherapist stating that [Peter] could return to employment at some point. Temporary unemployment is not a basis upon which to modify child support. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950). A change in income is one basis for finding a change of circumstances upon which to grant a change in support but courts "have consistently rejected requests for modification based on circumstances which are only temporary . . ." Lepis v. Lepis, 83 N.J. 139 (1980).

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. If evidence is lacking to sustain the court's finding, it is only then that the findings must be set aside. Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we review Peter's contentions.

"When considering an application to modify support, the moving party has the burden to make a prima facie showing of changed circumstances warranting relief prior to the court ordering discovery of the full financial circumstances of each party." Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998) (citing Lepis v. Lepis, 83 N.J. 139, 157-59 (1980)). See also Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). "If that showing is made, the judge then determines whether the changed circumstances justify modification. A plenary hearing may be necessary to adjudicate the matter if there are genuine issues of material fact." Dorfman, supra, 315 N.J. Super. at 515 (citing Tancredi v. Tancredi, 101 N.J.Super. 259, 262 (App.Div.1968)).

"When a movant seeks modification, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157. "Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)).

Based upon our careful review of the record, we conclude that Peter's challenge to Judge Reed's ruling is unavailing as there is adequate, substantial and credible evidence indicating that Peter failed to make a prima facie showing that his disability is permanent and that he is totally disabled and unable to work in any job capacity. We are also satisfied the judge properly applied the law.

Affirmed.

Peter claimed that his net income for 2001 was approximately $380,000.

The judge also found Peter in violation of litigants rights for failing to comply with certain obligations under the PSA.

Peter said he was too embarrassed to disclose his alleged mental disability in his prior motion.

(continued)

(continued)

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A-1569-07T1

October 16, 2008