JAMES M. DURST v. MARY T. DURST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2194-08T3

JAMES M. DURST,

Plaintiff-Appellant,

v.

MARY T. DURST,

Defendant-Respondent.

________________________________

October 14, 2010

Submitted August 31, 2010 - Decided

Before Judges Simonelli and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-194-05-Z.

James M. Durst, appellant pro se.

Mary T. Durst, respondent pro se.

PER CURIAM

Plaintiff James Durst appeals from the November 21, 2008, Family Part order denying his motion to reduce child support based on changed financial circumstances. We affirm.

Plaintiff and defendant Mary Durst were married in April 1996, and divorced in May 2005. They have two children, born in 1997 and 2001. Since the time of their divorce, the parties have filed numerous motions and cross-motions seeking various relief. We focus on those parts of the motions and cross-motions relating to plaintiff's repeated efforts to reduce his child support payments.

Pursuant to the parties' Property Settlement Agreement, which was incorporated into the May 9, 2005 final judgment of divorce, plaintiff, a self-employed licensed private detective, agreed to pay $1,317.33 monthly for child support. This amount was calculated in accordance with the Child Support Guidelines based on plaintiff's imputed yearly income of $85,000.

In February 2007, plaintiff filed his first motion to reduce child support based on changed financial circumstances stemming from a loss of several clients, resulting in a decrease in business revenue from approximately $85,000 to approximately $65,000 in 2006, and from new housing costing plaintiff $1,500 monthly. Plaintiff also claimed that defendant's child-care expenses had decreased by approximately $848 monthly, as she no longer paid for a full day of daycare or after-school care.

Defendant countered that plaintiff failed to submit financial information and a Case Information Statement (CIS) evidencing changed financial circumstances, plaintiff's child support obligation was calculated in accordance with the Child Support Guidelines, plaintiff had expended considerable sums to purchase and renovate the property where he now resided, and plaintiff failed to show that he sought additional or alternative work. Defendant also countered that her child-care expenses were approximately $280 weekly during the summer months and on school holidays.

In a March 2, 2007 order, the trial judge denied plaintiff's motion without prejudice for failure to document a reduction in income and demonstrate what efforts he made to avoid the alleged reduction. The judge ordered both parties to exchange updated financial information, including a CIS and 2006 income tax returns, and ordered plaintiff to provide financial information for his private investigator business and a certification from his accountant.

Instead of complying with the March 2, 2007 order, plaintiff filed a second motion to retroactively reduce child support. In a November 2, 2007 order, the judge denied the motion and ordered both parties to provide a CIS as well as full and complete financial information, including 2004, 2005, and 2006 tax returns and W-2s. The judge again ordered plaintiff to provide all financial information for his business and a certification from his accountant.

On April 29, 2008, plaintiff filed a third motion, now claiming he was entitled to a reduction in child support because the $85,000 imputed income on which the monthly support was calculated exceeded his actual 2006 and 2007 income. In a June 20, 2008 order, the trial judge denied the motion because plaintiff had again failed to fully and completely disclose his financial information.

In August 2008, plaintiff filed a fourth motion to retroactively reduce child support. His attorney submitted a certification claiming that plaintiff only earned $28,015 in 2006 and $27,901 in 2007, and that defendant allegedly said that she earns more than plaintiff. Plaintiff subsequently submitted a certification attaching his updated CIS and 2006 and 2007 tax returns; however, he omitted his W-2s, recent pay stubs, and a certification from his accountant. Defendant countered that plaintiff's 2006 and 2007 income reflects part-time or limited work, and that plaintiff has the ability to obtain either a new or second job to supplement his income.

In a November 21, 2008 order, the trial judge denied plaintiff's motion concluding as follows:

The [CIS] and tax return submitted by [p]laintiff indicate that he made $5,019 in Schedule C income from his business as a private investigator (gross receipts without any deductions). In addition, by virtue of his Schedule K-1 return, [p]laintiff received ordinary business income in the amount of $8,855 from his Corporation and $6,300 in rents received from a rental property ($13,874 total).

Plaintiff does not offer any explanation why he is unable to earn income consistent with the expected range for a private investigator working full time as set forth in the New [J]ersey Department of Labor and Workforce Development Wage Compendium ($33,121 at the 25th percentile to $69,621 at the 75th percentile). In addition, [p]laintiff does not provide any information regarding any attempts he has made to seek employment separate from his own company that would afford [him] to work as a private investigator such as applications, records of interviews, or any other proof that he has attempted to obtain such employment at a full time level.

Therefore, [p]laintiff has failed to show that his level of income is anything other than temporary circumstances and/or the result of his own choice to work for himself at a less than full time level. As such, [p]laintiff has failed to meet his burden of proof to demonstrate significant changed circumstances under Lepis v. Lepis, 83 N.J. 139, 157-159 (1980).

This appeal followed.

On appeal, plaintiff contends that the trial judge abused his discretion by failing to (1) make findings of fact, (2) apply plaintiff's documented income to the Child Support Guidelines and reduce plaintiff's income consistent therewith, (3) address plaintiff's claim of fraud relating to the children's daycare expenses, and (4) retroactively modify those child-care expenses to account for changed circumstances.1 Plaintiff's fraud contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As to defendant's remaining contentions, we disagree.

Courts may modify child support orders upon a showing of changed circumstances. N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 146 (1980). A party seeking to modify child support must "make a prima facie showing of changed circumstance . . ." Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). A parent seeking to modify a child support order must show that "'changed circumstances had substantially impaired [the parent's] ability to support himself or herself.'" Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (quoting 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." Lepis, supra, 83 N.J. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268 (1950)). Further, a party may not deliberately remain underemployed in order to shirk his or her support obligations, and a trial court has the discretion to impute a higher income to any individual it believes is doing so. See Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001).

Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989) (quotation and quotation marks omitted). Rather, "a court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller v. Miller, 160 N.J. 408, 420 (1999). "Income may be imputed to a party who is voluntarily unemployed or underemployed." Golian, supra, 344 N.J. Super. at 341. "[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one's family." Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982).

Based upon our review of the record, we discern no reason to disturb the trial judge's ruling, as the record amply supports it. Plaintiff has failed to establish a prima facie showing of changed circumstances warranting a reduction of child support. We affirm substantially for the reasons expressed by the trial judge in the November 21, 2008 order.

1 We decline to address plaintiff's contentions, improperly raised for the first time in his supplemental brief, that the trial court abused its discretion in failing to address defendant's cohabitation with her boyfriend, defendant's alleged ownership of a boat or interest in a construction business, or defendant's alleged "continued fraud." See Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001). Also, we will not consider claims raised outside the record, or documents attached to the supplemental brief, which are not in the record below. R. 2:5-4; See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 52 (2004); State v. Wilson, 178 N.J. 7/14 (2003).