BARBARA SAVINI v. PETER TRIESTMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5095-07T15095-07T1

BARBARA SAVINI,

Plaintiff-Respondent,

v.

PETER TRIESTMAN,

Defendant-Appellant.

____________________________

 

Submitted May 6, 2009 - Decided

Before Judges Axelrad, Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-149-05.

Kevin Crawford Orr, attorney for appellant.

John D. Murray, attorney for respondent.

PER CURIAM

Defendant Peter Triestman appeals from two post-judgment Family Part orders filed on June 13, 2008, dismissing his motion for reconsideration of a February 14, 2008 order and awarding counsel fees to plaintiff Barbara Savini. After consideration of the arguments presented on appeal and the written submissions of both parties, in light of the record and applicable law, we discern no error in the motion judge's findings of fact and conclusions drawn therefrom. Nor do we determine the judge misapplied his discretion in awarding counsel fees. Therefore, we affirm.

After approximately fourteen years of marriage, the parties were divorced on February 15, 2005. The Final Judgment of Divorce (FJOD) incorporated a Property Settlement Agreement (PSA), which resolved all collateral issues raised in the matrimonial matter.

Relevant to the issues to be examined on appeal are two provisions of the PSA. First, defendant was required to pay $3,000 per month as child support for the parties' three children. In a section labeled "Modification," the parties' agreement at section 3f stated:

Child support shall be subject to renegotiation and review every two years to take account of changes in the income of the parties and the Child Support Guidelines of the Courts of New Jersey.

Second, the PSA addressed payment of the children's medical expenses, stating:

The Husband shall continue to provide health insurance for the unemancipated children. The Husband shall be responsible for orthodonture, psychotherapy and other uninsured medical and dental expenses for the children. The Husband shall put $10,000 in an escrow account to be administered by the Wife and the Wife shall draw from the escrow account for these unreimbursed expenses. Whenever the account is drawn down under $5,000, the Husband shall contribute additional funds to restore the account to $10,000.

Defendant solely owned and operated a building restoration business known as Triestman & Sons. The PSA contains no statement of the parties' respective incomes. Under the equitable distribution provisions of the PSA, defendant received 100% of the value of the business and agreed to pay all debts associated with its past and current operation. Plaintiff waived her right to obtain a formal business valuation and to receive any portion of the business. Defendant also operated a restaurant, which he solely retained.

The parties filed cross-motions essentially seeking enforcement of various provisions of the PSA. The requests were denied without prejudice pending airing the issues in mediation, as required by the PSA. When mediation was unsuccessful, defendant again sought adjudication of the issues and both parties refiled their motions.

On November 17, 2006, after oral argument, the court entered two orders. The first denied without prejudice defendant's request to recalculate child support and required plaintiff to submit discovery. The second denied much of the relief sought by plaintiff in her cross-motion. However, the order granted plaintiff's request regarding payment of the children's medical expenses and for replenishment of the $10,000 medical escrow account. Defendant was ordered to fund the account within sixty days and to pay certain medical expenses incurred for the children. The court also included a mechanism for defendant's review of future medical expenses after insurance reimbursements were obtained by plaintiff.

Defendant again filed a motion to reduce child support, suspend future child support payments, and require plaintiff to file a Case Information Statement (CIS). Defendant's CIS reported the business's gross income, which he alleged dipped to -$51,577 in 2006. He asserted his personal net income for that year was -$66,122. Plaintiff filed a cross-motion to enforce litigant's rights.

In a statement of reasons accompanying the February 14, 2008 orders, the judge addressed defendant's arguments that the PSA required an automatic recalculation of child support every two years and that he suffered a dramatic reduction in his income. The court stated:

The intent here [of paragraph 3f] was to provide for recalculation of child support if the parties' incomes changed, a clause that is consistent with New Jersey law . . . .

Because defendant has misconstrued 3f, because he has not demonstrated a change in circumstances, and because any change that may have occurred to the Guidelines is not a basis for modification of a child support award in the absence of changed circumstances, [defendant's] motion is denied.

The court then addressed the many requests submitted in plaintiff's cross-motion. Finding no support, the court denied plaintiff's application for enforcement of litigant's rights for alleged non-payment of support, sole custody, and an increase in child support. The court also determined defendant failed to comply with the court's prior order and the provisions of the PSA. Defendant was directed to fund the children's $10,000 medical escrow account within thirty days and reimburse to plaintiff the sum of $6,311.17 for unreimbursed medical expenses and health insurance premiums she had paid for the children. Finally, defendant was ordered to pay $750 toward plaintiff's counsel fees. The companion order denied defendant's motion in its entirety.

Defendant filed a motion for reconsideration of the court's February 14, 2008 orders, and plaintiff filed a cross-motion for enforcement. Following oral argument, the court denied defendant's motion and granted plaintiff's cross-motion reducing the $6,311.17 and the previously awarded counsel fee to judgment. Additionally, plaintiff was awarded $1,260 in counsel fees, payable within thirty days.

On appeal, defendant presents these arguments:

I. THE COURT BELOW IMPROPERLY IGNORED THE PLAIN LANGUAGE OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT, WHICH ELIMINATED A REQUIREMENT OF A PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCE BEFORE REVIEWING CHILD SUPPORT IN FAVOR OF A MANDATORY REVIEW EVERY TWO YEARS.

II. Alternatively, the court below erred in finding that defendant failed to show a change of circumstances.

III. The court below improperly found that defendant should replenish the escrow fund.

A. THE ESCROW FUND CREATION AND ITS INITIAL $10,000 FUNDING LEVEL.

B. THE ORDER TO REIMBURSE $6,311.17 IN CHARGES.

C. THE ORDER TO REPLENISH THE FUND IN THE AMOUNT OF [$]10,000.

IV. THE COURT BELOW ERRED IN AWARDING $750 in counsel fees in connection with the plaintiff's first cross-Motion TO enforce litigant's rights.

V. The court below erred in awarding $1,260 in counsel fees in connection with the plaintiff's second cross-motion to en- force litigant's rights.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and are satisfied they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Defendant's argument suggesting "the plain language" of the PSA mandated a cyclical two-year review of child support without need for a showing of changed circumstance is specious. We concur with the motion judge's determination that the PSA modification provision, which required a "change in income," reflected the legal standard pronounced in Lepis v. Lepis, 83 N.J. 139, 151 (1980), permitting modification upon proof of a substantial "change in circumstances." Contrary to defendant's interpretation, an automatic modification was not stated in or intended by the parties' agreement.

Whether a support "obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). Accordingly, a motion to modify support obligations "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956); see also Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993).

Additionally, maintaining the stability of marital agreements is favored. See Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.), certif. denied, 180 N.J. 354 (2004) (public policy favors stability of consensual arrangements for support in matrimonial matters); Avery v. Avery, 209 N.J. Super. 155, 160 (App. Div. 1986) (same). Thus, defendant has a heavy burden when seeking to alter the parties' specific agreement and reduce the amount of support less than two years from the entry of the FJOD. Ibrahim v. Aziz, 402 N.J. Super. 205, 213 (App. Div. 2008); Gordon v. Rozenwald, 380 N.J. Super. 55, 67 (App. Div. 2005).

Here, the motion judge cited his inability to establish a starting point as a flaw in defendant's proofs. In the matrimonial litigation, the parties agreed to waive substantial discovery as to defendant's income, assets, and business interests. According to plaintiff, she accepted defendant's representations as part of an overall "global settlement." Defendant kept his business interests, and she waived discovery with the expectation of receiving the amount of stated child support and the other financial payments. The PSA does not state the basis for defendant's agreement to pay $3,000 per month, nor does it recite the amount of his income upon which the level of support was based. The absence of reporting the income and benefits defendant received from his solely owned business at the time of the divorce precludes an accurate pinpointing of his financial circumstances from which he now suggests he suffered a change.

Any "[d]determin[ation] [of] the impact and magnitude of 'changed circumstances' necessarily entails knowing the starting point before the change, that is, the point from which the change can be measured." Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001). "[W]ithout accurately knowing the true point of beginning," New Jersey courts consider unreliable, by definition, a Lepis determination of changed circumstances. Id. at 316-17. Even still, a court may not "presuppose an arbitrary or false starting point." Id. at 317.

Interestingly, defendant admits the business experienced a loss in 2004 when he agreed to pay the specified level of child support. A comparison of the business earnings in 2004 (-$64,998) and 2006 (-$66,122) shows little divergence. As to defendant's current situation, the motion judge properly determined defendant's motion contained a lack of prima facie proof of changed circumstances. Defendant attached no business financials, but only portions of his personal income tax returns for 2006.

Overall, there was insufficient proof as to defendant's economic status when support was set and his financial situation at the time of the motion. We conclude the motion judge did not err in denying his motion for modification of child support.

Turning to the escrow fund, the parties anticipated high medical expenses for their children when they incorporated the $10,000 medical escrow vehicle into the PSA. Plaintiff's documentary proofs attached to her cross-motion evince the depletion of the escrow to satisfy the children's medical expenses for prescriptions, dental work, therapy, and hospital costs. Additionally, defendant failed to fulfill his obligation to provide the children with medical insurance, which plaintiff obtained and paid from the escrow. Defendant only repaid $4,734.45, leaving a $6,311.17 deficit to replenish the required $10,000 level. The motion judge found defendant's unsubstan-tiated allegation of misuse of the funds unpersuasive. On appeal, defendant presents no basis to set aside those findings.

Finally, Rule 5:3-5(c) permits the court, in its discretion, to award attorneys fees. Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008); see also R. 4:42-9(a)(1) ("No fee for legal services shall be allowed in the taxed costs or otherwise, except . . . [i]n a family action, a fee allowance . . . on final determination may be made pursuant to R. 5:35-5(c)"). The motion judge adequately assessed the applicable factors and entered modest fee awards. "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). No abuse is presented.

Affirmed.

 

Schedules A, B and D are not included.

(continued)

(continued)

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A-5095-07T1

 

July 10, 2009