DEBRA NEWMAN v. LAURENCE S. NEWMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3210-07T23210-07T2

DEBRA NEWMAN,

Plaintiff-Respondent,

v.

LAURENCE S. NEWMAN,

Defendant-Appellant.

________________________

 

Submitted November 12, 2008 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-96-05.

Stephen E. Samnick, attorney for appellant.

Debra Newman, respondent pro se, has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, defendant Lawrence S. Newman appeals from two orders of the Family Part entered on January 25, 2008; the first order denied his motion to vacate his alimony obligation to plaintiff, Debra Newman; the second order granted plaintiff's cross-motion to compel defendant to pay fifty percent of the parties' children's after school care, summer camp and unreimbursed medical expenses. For the reasons that follow, we affirm.

The parties were married on September 2, 1995, and have two daughters who were eleven and nine years old at the time defendant brought the motion which is the subject of this appeal. The parties were divorced by a judgment entered on April 27, 2005, which incorporated their property settlement agreement (PSA); neither party was represented by counsel at the divorce hearing.

The parties' PSA provides, in pertinent part:

5 YEARS ALIMONY

Husband shall pay $370.00 per week as and for spousal support to be paid through the Morris County Probation Department by the 1st of each month. Alimony will be based on Husband[']s income according to the matrimonial guidelines set fourth [sic] by the Superior Court of New Jersey.

SUPPORT FOR THE CHILDREN

Husband shall pay child support for the minor children of the marriage in the amount of $214.00 per week, with all payments made through Morris County Probation on the first day of each month. Husband shall contribute 50/50 to before and after school care and summer camp. Child support will be based on Husband[']s income according to the matrimonial guidelines set fourth [sic] by the Superior Court of New Jersey.

On December 1, 2005, pursuant to a motion brought by defendant, the trial court entered an order reducing his alimony obligation to $330 per week and his child support to $150 per week, effective November 18, 2005. The court provided the following statement of reasons for this order:

The Court is satisfied that the [defendant's] appropriate income for calculation of child support and alimony is $1,200.00 per week. This amount is his current income based upon new employment. The Court is satisfied that he lost his employment some time ago and has made all reasonable good faith efforts to obtain new employment and has done so at the rate of $1,200.00 per week. This affects the alimony award and the child support award. Based upon the information available, the Court concludes that [defendant] has the ability to pay $330.00 per week alimony rather than $370.00 as agreed to in the [PSA]. The Court concludes that his unemployment and new position constitute[ a] sufficient change in circumstances to warrant this review. The sole basis upon which the Court reduces the alimony from $370.00 per week to $330.00 is his lessened ability to pay.

Having determined the alimony amount, the Court then calculated the child support in accordance with the Child Support Guidelines and concluded that $150.00 per week is the appropriate amount.

The court appended a Child Support Guidelines worksheet to its order reflecting an "other dependent deduction" in the amount of $206.00, granted to defendant for his child from an earlier marriage. Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2323 (2009).

On December 19, 2007, defendant filed a motion to correct "clerical errors in the calculation of defendant's child support obligation[,]" and to "[v]acat[e] the alimony provision of the parties' [PSA] together with accrued arrears . . . as being ab initio not fair and equitable and setting the matter down for a determination of the defendant's alimony obligation." In support of this motion, defendant's attorney submitted a certification setting forth the grounds for the relief sought. Defendant did not file a certification.

Counsel asserted that the first "clerical error" in the worksheet appended to the December 1, 2005 order, was the insertion of defendant's child support obligation for his other child at line 2d of the worksheet ("other dependent deduction"), rather than at line 2b ("prior child support order"). Counsel asserted that defendant was "not in an [o]ther [d]ependent [d]eduction situation. He has one child from a prior marriage and pays child support to his former wife in the amount of $206 per week." Counsel attached a supporting exhibit in the form of a letter from a Family Part judge, dated May 20, 2004, stating that the calculation for defendant's other child "should be $206.00 per week." No order for such child support was appended. Counsel argued that the insertion of defendant's other dependent deduction on line 2d "resulted in a higher child support award." Counsel appended no child support worksheets to demonstrate the difference in the child support amount resulting from the alleged "clerical errors."

Counsel further stated that defendant received no "adjustment" for parenting time expenses on line 19 of the worksheet and that defendant had been seeing the children overnight each Saturday since approximately July 2005. Again, counsel provided no supporting documentation for this assertion.

Regarding the request to vacate the alimony provision in the PSA, counsel argued that the $370 alimony amount in the agreement was calculated in error, and was based upon imputed income to defendant of approximately $80,000 per year. Regarding the modification in the December 1, 2005 order, based upon imputed annual income of $62,400 to defendant, counsel stated that the revised amount was not fair and equitable, and he set forth a chart in his certification to illustrate his point.

Counsel's proposed form of order set forth the specific relief sought as follows:

1. The alimony provision of the parties' [PSA] (incorporated into the Final Judgment of Divorce entered on April 27, 2005), together with accrued alimony arrears be and hereby [is] vacated.

2. The matter be and hereby is set down for a hearing . . . for a determination of the appropriate amount of weekly alimony to be paid by defendant retroactive to May 1, 2005, and at the time of the hearing the Court shall recalculate defendant's weekly child support obligation retroactive to the filing date of defendant's motion including as a part of the calculation defendant's weekly alimony obligation as found by the Court and the correction of clerical errors previously made in the calculation of defendant's weekly child support obligation.

3. Defendant shall be given credit for all child support and alimony payments made in determining what, if any, child support and alimony arrears exist after the determination of his appropriate weekly alimony obligation and the recalculation of his weekly child support obligation.

Plaintiff's certification supporting her cross-motion requested that defendant's motion be denied, and appended numerous medical bills incurred on behalf of the parties' children in support of her request for contribution.

Defendant filed a certification for the first time in reply to plaintiff's cross-motion. Defendant certified that his motion was "not based on a change in circumstances argument . . . ." Regarding the "clerical error" in the child support calculations, defendant certified that his $206 weekly obligation to his other child "should be included on Line 2[b] of the Worksheet without engaging in the [o]ther [d]ependent deduction calculation on Lines 21 through 23, which would only be applicable if [he] resided as an intact family with [his prior spouse]."

Defendant stated that plaintiff "gives no substantive opposition to my request to vacate the alimony provisions of the . . . [PSA]." Defendant appended a Case Information Statement (CIS) to his reply certification, dated January 7, 2008. This CIS reflected gross earned income for 2007 in the amount of $12,900, and appended pay stubs from Juniper Village, showing gross weekly income of $175.50 and from Sunrise House Foundation, Inc., showing gross bi-weekly income of $574.00. Defendant offered no explanation in his certification for the current state of his employment situation.

The trial court heard argument on January 25, 2008, at which defendant appeared with counsel and plaintiff appeared unrepresented. In addressing the "clerical error" in the child support worksheet, the court worked through the calculations with counsel and found that there was no difference in defendant's child support obligation if the $206 "other dependent" obligation were inserted at line 2b instead of line 2d. The following exchange occurred between counsel and the court:

THE COURT: Okay. Well, here's my question. If you . . . take the 1,200, you deduct the three-thirty which is alimony paid, you get eight-seventy. If you take the eight-seventy and you deduct the two-sixteen [taxes] and the two-oh-six you end up with four-forty-eight.

So what difference does it make whether the two-oh-six was listed in 2(b) or 2(d)? It's fully deducted.

[DEFENDANT'S COUNSEL]: Well, if for nothing else, Judge, just to say this, if in fact there comes some point when the sheet is reworked, I was just pointing that out in terms of the proper --

THE COURT: Okay, but it doesn't seem to affect the child support.

[DEFENDANT'S COUNSEL]: Perhaps not, Judge, in terms of the ultimate amount.

THE COURT: Okay.

[DEFENDANT'S COUNSEL]: I'm just pointing that out.

Counsel then summed up defendant's alimony argument as follows:

[A]s to the main issue here with regard to alimony, part of the reason, not entirely, but part of the reason [defendant] has the arrears that he has in my view is a result of the very onerous alimony -- given the relative incomes that were found.

. . . .

Given those incomes, given what the -- in my view the reasonable range of alimony award should be, I think things are so out of whack, so out of . . . the ordinary that sitting here today without regard to legal time limits or even equitable time limits there is the -- I believe the requirement that the Court review the numbers to arrive at what would be a fair and equitable alimony award.

At the conclusion of argument, the trial court placed its decision on the record:

[T]he defendant is asking me to do two things. First, to correct a clerical error in the calculation of [the] children's child support obligation.

Well, the only clerical error I can see is that the amount for the other child support order was put in the wrong box, but as we just went through the math[,] the math is still correct. It was just put in the wrong box. So there's no basis for me to make a change there.

. . . .

Vacating the alimony provision, the . . . defendant's assertions are that the agreement that he entered into which was in April of 2005 was inequitable or unfair.

. . . .

[T]here's . . . a very significant and substantive procedural problem that [the PSA] was entered into three years ago. There was no application to . . . review it. There was no appeal.

We are now three years down the road and it's just simply way too late . . . [T]here is not a continuing obligation on a Court to look at agreements years and years later, it's too late . . . .

I'm being asked to decide it's grossly inequitable. And of course I respect [counsel's] personal view . . . that [the] number is unfair, but it isn't grossly unfair.

Based upon this decision, the court entered its order of January 25, 2008.

Defendant raises one argument on appeal:

THE TRIAL COURT HAS A CONTINUING OBLIGATION TO REVIEW, CONSIDER AND ADJUST NOT ONLY FINAL JUDGMENTS ENTERED BY THE COURT BUT PROPERTY SETTLEMENT AGREEMENTS ENTERED INTO BY LITIGANTS.

We note, at the outset, that defendant's grounds for the relief sought are unclear. Since he certified that his motion was "not based on a change in circumstances argument," we assume his intent was to seek relief from the PSA on the basis that he entered into it under duress and/or without understanding it, pursuant to Harrington v. Harrington, 281 N.J. Super. 39 (App. Div.), certif. denied, 142 N.J. 455 (1995). However, defendant has not elucidated this claim for relief; nor did he present the trial court with any documentary evidence to support a claim of duress or lack of understanding.

Moreover, defendant makes no such argument on appeal. In fact, defendant cites Lepis v. Lepis, 83 N.J. 139 (1980), for what he characterizes as the Supreme Court's "profound insight into the issue of disability or infirmity[,]" and quotes the following language from the opinion:

In accordance with this general principle, courts have recognized "changed circumstances" that warrant modification in a variety of settings. Some of them include

. . . .

(3) Illness, disability or infirmity arising after the original judgment . . . .

[Id. at 151.]

Defendant criticizes the judge's failure to "raise any questions about the nature of defendant's addictive problems . . . ." However, his motion papers are devoid of any mention, let alone proof, of "addictive problems[.]" His counsel appended a transcript of a pendente lite motion on November 3, 2004, in which his prior attorney stated that defendant's "life has turned upside down . . . . through a problem with drugs and alcohol . . . ." The judge expressed "great[] concern[] about the defendant's addictions." Nonetheless, defendant provided no explanation or documentation of any current problems.

Defendant further argues that the "trial court's conclusion that [he] was tardy in making his application to the Court is not consistent with the dictum in Lepis. In this case, [defendant] amply demonstrated, in accordance with the Lepis bright line, . . . that he was entitled to relief." He then quotes the following language from that case:

When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. This requires full disclosure of the dependent spouse's financial status, including tax returns.

[Id. at 157.]

Thus, it appears that defendant now asserts a "changed circumstance" basis for relief from his alimony obligation to plaintiff.

Assuming that to be the case, we conclude the trial court properly denied his motion. As noted, defendant provided no explanation for his current financial situation. Other than the January 7, 2008 CIS appended to his reply certification, the record is devoid of any evidence of defendant's prior earning capacity and the circumstances leading to a change in his present earning capacity. In fact, as noted, defendant's motion was, initially, supported only by a certification from his attorney, in violation of Rule 1:6-6, which provides:

If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . .

To the extent that we have information "made on [the] personal knowledge" of defendant, that information fails to establish the prima facie showing of changed circumstances required by Lepis, supra, 83 N.J. at 157, to warrant possible modification of his support obligation.

Considering the record, the contentions raised and the controlling law, we conclude that defendant's arguments are "without sufficient merit" to warrant further discussion, and we affirm for the reasons set forth in the trial court's opinion rendered from the bench on January 25, 2008. R. 2:11-3(e)(1)(A) and (E).

 
Affirmed.

Defendant has included both orders in his notice of appeal; however, in his brief he addressed only the order denying his motion for relief from his alimony obligation.

Counsel appended to his certification a November 3, 2004, pendente lite order setting defendant's alimony and child support amounts ultimately reflected in the PSA, including a Child Support Guidelines worksheet which also listed defendant's $206 "other dependent deduction" on line 2d; nothing in the record indicates defendant ever challenged this child support formulation during the pendente lite period, or at any other time prior to the motion that is the subject of this appeal.

(continued)

(continued)

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A-3210-07T2

February 26, 2009