BARI J. GAMBACORTA v. JANE P. GAMBACORTA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6379-06T36379-06T3

BARI J. GAMBACORTA,

Plaintiff-Appellant,

v.

JANE P. GAMBACORTA,

Defendant-Respondent.

________________________________________________________________

 

Submitted: May 5, 2008 - Decided

Before Judges Stern, C.L. Miniman and Kestin.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Burlington County,

Docket No. FM-03-1579-02.

Bari J. Gambacorta, appellant pro se.

Patricia Ronayne, attorney for respondent.

PER CURIAM

Plaintiff, Bari J. Gambacorta, appeals from certain provisions of the trial court's order of July 13, 2007. The notice of appeal specifies that the appeal is limited to paragraphs 1, 2, and 3 of the order to the extent they "den[ied] plaintiff's motions [to] requir[e] the defendant to file a complete CIS, tax returns for 2003, 2004, 2005 and copies of her inheritance portfolio for 2004, 2005 and 2006[;]" paragraph 4 "as it pertains to modifying Allegra's child support without requiring a complete CIS and [paragraph] 14 for the same reason"; and paragraph 9 "entirely", which denied "plaintiff's motion to terminate or modify alimony payable to defendant." We affirm in all respects save for one minor feature, largely on the basis that Judge Claypoole was well within her discretion to order the provisions appealed from.

The parties were divorced on October 11, 2003. In the instant motion, filed on May 4, 2007, plaintiff sought disclosure of financial information from defendant, modification of child support, emancipation declarations regarding two of the children, termination or modification of alimony, and other relief. At the time of the motion, all three of the parties' children were college students: Peter was nearing the completion of his first year; Christina's college graduation on May 25, 2007 was anticipated; and Allegra was scheduled to complete her studies in December 2007. Peter and Christina were attending school out of the state; Allegra resided at home with defendant while attending school at a community college.

Judge Claypoole set out her reasons for decision in the body of the dispositional order, which contained fifteen numbered decretal paragraphs. Paragraphs 1, 2, and 3 dealt with the motions for financial disclosure.

Stating that "[d]efendant ha[d] provided a case information statement [(CIS)] with 2006 tax return information[,]" the court "denied and dismissed as moot" the motion for disclosure of such information as to 2003, 2004, and 2005, finding "no reason to order the production of" that information. Finding that defendant's 2007 year-to-date income had been provided, the court dismissed the motion for that disclosure "as moot." Finding "no basis for [the] request" for "copies of [defendant's] investment portfolio from inheritance and other sources for the years 2004, 2005, and 2006," the court "denied [that motion] without prejudice."

In paragraph 4, the court granted "[p]laintiff's motion to modify child support based upon change of circumstances": Christina's emancipation as of May 25, 2007, "and Peter's attendance at college away from home." The order recited that support for Allegra was to "be calculated under the Child Support Guidelines." Assuming that shelter expenses incurred on Peter's behalf related to the maintenance of a residence while he was away at school, the court specifically referred to Appendix IX-B of the Court Rules, and provided that support for Peter was to be calculated "by determining 38% of the marginal increase in child support between support for one child and support for two children, and then adding that amount to the child support amount determined for Allegra." After explaining her considerations based on the parties' incomes, Judge Claypoole ordered a total of $260 per week as the modified child support for the two children remaining after Christina's emancipation. The court noted in paragraph 14 that defendant's motion to recalculate child support for Allegra had been granted.

Paragraph 9 of the order denied plaintiff's motion "to terminate or modify alimony." Among the reasons given for that ruling, Judge Claypoole stated:

[T]he [c]ourt will not consider plaintiff's alleged reduction in income to be a change of circumstances at this time. Nor does the court consider [p]laintiff's alleged inferior retirement assets to be a change of circumstances as the current retirement assets reflect the agreement the parties[] reached through their FJOD. Finally, the court will not impute any additional income to [d]efendant based upon an alleged ability to earn more from her $700,000 asset. The [c]ourt finds that, as plaintiff himself asserts, the terms of the FJOD were negotiated between the parties. An imputation based upon 3% return was agreed upon. The court does not find that this is an unreasonable or unconscionable amount. Nor does the court find that variation in interest rates was not foreseeable at the time the parties entered into the FJOD. Based on the foregoing, the [c]ourt finds that [p]laintiff does not meet his burden of demonstrating a significant change of circumstances since the time of the parties' FJOD.

Our review of the record in the light of the arguments advanced by the parties discloses no misapplication of discretion or error of law on Judge Claypoole's part. Without a more detailed threshold showing by plaintiff, the judge was well warranted to consider defendant's submission of current income and asset figures to be ample as a basis for assessing the changes of circumstance that would affect the child support amount due in this case; and, given what was before the court, the judge was correct to reject, as inadequately grounded, plaintiff's contention that the 3% figure, fixed by the parties in their property settlement agreement as limiting the valuation of defendant's income from her inherited investment asset, was not controlling.

It might be arguable whether such an agreement should control, for all time, the parties' rights and obligations regarding alimony. But no such agreement can be held to fix their rights regarding child support calculations, which are subject to periodic adjustment as time advances and conditions bearing upon the growth and development of the children transpire. See Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). Nevertheless, more must be shown than plaintiff has demonstrated here before an agreed-upon figure such as the 3% will be modified, even in the cause of providing ample and just amounts of child support.

Of course, the amount ordered for child support must be based upon the current income and assets of the parties. See, e.g., Crews v. Crews, 164 N.J. 11, 28 (2000). Our review of the record discloses that the modified child support ordered here was so predicated. Defendant, in her case information statement, had supplied her most recent tax return, which reported her investment income at a level less than 3%.

Before plaintiff may prevail on any claim based upon the inadequacy of the 3% valuation figure agreed upon between the parties he must first show the extent to which, if at all, that percentage varied, at the time of agreement, from average market rates for invested capital of the same type. Then, he must show a changed circumstance in this regard: that current experience with returns on investment from assets of that type is so much different from that at the time of agreement as to render the 3% valuation unjust as a basis for calculating either child support or alimony. Cf. Aronson v. Aronson, 245 N.J. Super. 354, 363 (App. Div. 1991).

The ruling denying plaintiff's motions, to the extent it bears upon the 3% valuation, must, therefore, be seen to be without prejudice. If plaintiff is able to make the requisite threshold showing in any future application, he will be entitled to reconsideration of both child support and alimony on that basis.

The trial court's order of July 13, 2007 is affirmed with the single exception that the denial of an alimony modification shall be without prejudice.

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A-6379-06T3

June 10, 2008