ROBIN DECESARI v. ROBERT C. DECESARI

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1131-08T31131-08T3

ROBIN DECESARI, n/k/a

VECCHIARELLI,

Plaintiff-Respondent,

v.

ROBERT C. DECESARI,

Defendant-Appellant.

_________________________________

 

Submitted May 28, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-322-03.

Robert C. DeCesari, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Robert C. DeCesari appeals from an order related to child support entered by the Family Part in Gloucester County on July 18, 2008. We affirm in part and remand in part.

I

We discern the following from the record. DeCesari and Robin Vecchiarelli, formerly Robin DeCesari, were married on January 2, 1992. They have two sons, one born in 1991 and another born in 1994. They separated in July 2000. Vecchiarelli appears to have primary custody of the children, has remarried, and had at least one additional child.

At the time of the separation, Vecchiarelli had become qualified as a registered nurse and was employed in a hospital. It appears that Robert has been seeking to become a licensed architect, but is apparently having difficulty with aspects of the licensing examination. He has, nevertheless, been working in the field of architecture for more than twenty years. According to DeCesari, he attempted to start his own architectural firm, through a purchase, but had to sell the business back at a loss, presumably because he was unable to become separately licensed.

A domestic violence restraining order, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, was entered against DeCesari on July 25, 2000, which included a provision for child support in the amount of $151 per week. The amount of support was apparently based on an imputed income of $40,000 for each parent. The parties were divorced on March 17, 2003, and the judgment of divorce incorporated a property settlement agreement dated June 3, 2002. That agreement provided for a recalculation of child support and the elimination of DeCesari's arrears up to that time.

According to an August 24, 2007, order, the parties never agreed upon a new child support amount and never applied for a recalculation. Consequently, it appears that the original support amount, as calculated in July 2000, remained in effect and was subject to several automatic cost of living increases. The 2007 order provides that the then existing rate, $182 per week, plus $30 for arrears, would remain in effect up to the filing date of the motion. However, it did provide that the arrears as of the date of the separation agreement would be vacated, if that had not already happened.

Although DeCesari had sought a retroactive recalculation of the child support as had been agreed upon by the parties in connection with their separation and divorce, the motion judge declined to do so in August 2007. Consequently, it appears that the amount of weekly support up to July 2007 continued to be based on the 2000 imputation of $40,000 of income to both parties. The motion judge also denied DeCesari's application to enforce a purported agreement between the parties that the child support would be reduced to $40 every other week, finding that there was no support in the motion record for such an agreement having been made.

In a cross-motion, Vecchiarelli sought to have the amount of child support increased, based upon an amount of income for DeCesari to be imputed by the court. That application was granted, and the weekly support amount was increased to $196, plus $30 for arrears, effective July 5, 2007. Although the order refers to an attached child support worksheet, there was none attached to the order in the appendix. However, the motion judge explained how he derived the income amounts and his response to DeCesari's claims of unemployment as follows:

The Court based its calculations on the following:

P's projected gross 2007 income: $71,779 (based on P's YTD pay stub as of 6/16/07 (24 wks)=$1,380.35/wk x 52 wks=$71,778.63/yr).

D's imputed gross annual income: $65,000-The Court notes that D did not attach copies of his tax returns for the years in question (i.e., 2002, 2003, 2004, 2005 and 2006).

The Court notes further that D admits to earning $65,000 per year beginning in June or August of 2003 through July of 2005 at which time he was laid off. D asserts that he resumed employment in October of 2005 and maintained employment to January 2007 at which time he was laid off again.

D asserts he is currently unemployed but did not provide the Court with documentation as to his job search or legitimate reasons as to why he is unable to work at his vocation as an architectural draftsman.

Pursuant to NJ case law, a temporary unemployment is not a substantial change in circumstances for modification of child support. Bonanno v. Bonanno, 4 N.J. 268 (1950).

Also, a defendant's child support obligation shall not be vacated or reduced based upon the defendant's voluntary acts. Halliwell v. Halliwell, 326 N.J. Super. 442 (App. Div. 1999).

Vecchiarelli sought a lump sum payment of $41,257.06 for arrears, but the motion judge ordered only a $2,500 lump sum, payable within thirty days of the date of the order. He also: (1) provided for the automatic issuance of a bench warrant for a single missed support payment; (2) required DeCesari to provide proof of life insurance; (3) made provision for unreimbursed medical expenses; and (4) awarded Vecchiarelli counsel fees.

Although the record contains correspondence from DeCesari to the effect that he wanted to appeal the August 24, 2007, order, he never perfected a timely appeal. It also appears from the correspondence in the appendix that he continued to fall behind in his child support payments.

DeCesari filed another motion, which was returnable on July 18, 2008. He again sought to implement the purported agreement for a reduced child support amount and waiver of arrears, which the motion judge again denied because there was no support in the record for such an agreement. He further sought to have child support recalculated based upon the parties then current financial circumstances. That request was denied without explanation. His request that his child support obligation be suspended while he seeks architectural licensure to improve his income was also denied. The motion judge cited the fact that DeCesari's primary obligation is to support his children as the reason for the denial.

This appeal followed.

II

Although we normally defer to the Family Part's factual determinations, the order on appeal was not based upon factfinding at an evidentiary hearing. A judge's legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

We agree with the motion judge that there was no competent evidence in the record to support DeCesari's assertions that his former wife had agreed to a significant reduction in child support and note, in addition, that the issue had already been decided against him in the August 2007 order. Consequently, we affirm as to that issue.

By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). The statute enumerates several factors to consider in calibrating support, including (1) the "[n]eeds of the child"; (2) the "[s]tandard of living and economic circumstances of each parent"; (3) "[a]ll sources of income and assets of each parent"; (4) the "[e]arning ability of each parent"; (5) the "[n]eed and capacity of the child for education"; (6) the "[a]ge and health of [each] child and each parent"; (7) the "[i]ncome, assets and earning ability of the child"; (8) the "[r]esponsibility of the parents for the court-ordered support of others"; (9) the "[r]easonable debts and liabilities of each child and parent"; and (10) "[a]ny other factors the court may deem relevant." Ibid.; see also Gac v. Gac, 186 N.J. 535, 548 (2006) (applying statutory factors).

In this case, there has never been an evidentiary proceeding to fix the child support amount, other than the brief one in connection with the domestic violence matter that both parties have previously agreed to recalculate. Although we agree with the motion judge that temporary unemployment and voluntary actions of the supporting parent are not necessarily reasons to lower child support, we have concluded that these matters are sufficiently complicated that they need to be sorted out on remand in a plenary hearing. Conforti v. Guliadis, 128 N.J. 318, 322, 328-29 (1992) (requiring plenary hearings to resolve material factual disputes); Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (requiring plenary hearings in child support modification cases). Both parties must provide up-to-date and fully-completed case information statements with all required attachments prior to that hearing.

The existing support orders will remain in place pending the remand hearing, but they are subject to modification, retroactively to July 18, 2008, or prospectively only, depending upon the facts and equities developed at the hearing. However, we express no view as to whether any adjustment, one way or another, is required.

Affirmed in part and remanded in part.

 

It is not clear whether DeCesari ever received the worksheet. We note that he has included an exchange of correspondence in his appendix in which he sought a copy from the court and was informed by the law clerk that it had been attached to the order. In any event, we do not have the benefit of the worksheet.

(continued)

(continued)

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A-1131-08T3

June 11, 2009