PHILIP M. PROETTO v. KIM PROETTO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1278-10T1

PHILIP M. PROETTO,

Plaintiff-Appellant/

Cross-Respondent,

v.

KIM PROETTO,

Defendant-Respondent/

Cross-Appellant.

____________________________________

November 2, 2012

Argued January 10, 2012 - Decided

Before Judges Carchman, Baxter and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-497-05.

Edward P. Fradkin argued the cause for appellant/cross-respondent (Law Office of Edward Fradkin, L.L.C., attorney; Mr. Fradkin, of counsel and on the briefs).

Allan D. Weinberg argued the cause for respondent/cross-appellant.

PER CURIAM

Plaintiff Philip M. Proetto appeals from the three provisions of a post-judgment Family Part order that: denied reconsideration of a previous order that dismissed his motion to reduce his alimony and child support obligations; denied his motion to suspend his support obligations pending a plenary hearing; and granted defendant's cross-motion "to order plaintiff's arrest until he complies with all orders."1 Defendant Kim Proetto cross-appeals from the trial court's refusal to deny plaintiff's motion for reconsideration on the ground that the motion was not timely filed. Finding no abuse of discretion by the trial court, we affirm.

Following a nineteen-year marriage, the parties were divorced on September 16, 2005. The Judgment of Divorce (JOD) incorporated their handwritten property settlement agreement (PSA), which: provided for the custody of their three children as well as parenting time; required plaintiff to pay weekly child support of $160 for one year, and thereafter an amount calculated in accordance with the child support guidelines; and required plaintiff to pay weekly alimony of $1050 for one year, and thereafter permanent weekly alimony of $850. The PSA also stated that plaintiff's income was $153,000, defendant's income was $35,000, and that if plaintiff's income fell below $153,000, plaintiff "can make [a] change of circumstances application."

Nearly five years later, in June 2010, plaintiff, representing himself, filed a motion to reduce his support obligations and emancipate the parties' oldest child. He explained in a supporting document that in 2005, at the time of the divorce, he worked as a commercial real estate broker in Manhattan, but in 2009, due to the crash in the market, his employer fired him. Although he was paid no real estate commission in 2008 or 2009, in 2008 plaintiff profited from the sale of a luxury home that he and other members of an L.L.C. had built, and in 2009 he earned money as the organizer and general contractor of a project involving a warehouse. He earned his last fee from that project in February 2010. Plaintiff had hoped to receive income during the summer of 2010 from a health club he and others had renovated, but the club did not generate a sufficient profit for him to take a share.

In a certification replying to defendant's cross-motion to enforce litigant's rights, plaintiff also explained that he had been diagnosed with Crohn's disease. He submitted a medical report to support his assertion.

The court denied plaintiff's motion, explaining, among other reasons, that "[p]laintiff's Case Information Statement fail[ed] to list assets, including bank accounts or any and all property he may hold." The court also ordered the parties to submit their dispute over child support to economic mediation. The court entered a memorializing order on August 2, 2010.

On August 30, 2010, plaintiff, through counsel, filed a motion for reconsideration of the court's August 2 order. Plaintiff supported his motion with, among other documents, a new certification, case information statements for July 2005 and August 2010, a spreadsheet showing his income for 2008, 2009 and the first six months of 2010, and other financial documents.

In response to plaintiff's motion, defendant filed a cross-motion to enforce litigant's rights seeking, among other things, to have plaintiff incarcerated until he complied with previous orders. Plaintiff filed opposition, and the court heard the motion on September 24, 2010. Following the hearing, the court entered an order denying plaintiff's motion in its entirety, and granting defendant's cross-motion to have plaintiff incarcerated until he complied with court orders. This appeal followed.2

Plaintiff first argues that the trial court misapplied its discretion by failing to find that plaintiff satisfied the requirements of Rule 4:49-2, which authorizes but circumscribes motions for reconsideration of court orders. Plaintiff acknowledges the limited scope of reconsideration motions, but argues that because the court's August 2 order was without prejudice, he "was permitted to re-apply to the court with additional proofs."

Defendant counters that plaintiff's initial motion was deficient because it did not include either plaintiff's original case information statement for 2005, or a current, signed, case information statement, as required by Rule 5:5-4(a).

In denying plaintiff's motion for reconsideration, the court reiterated that critical information had been omitted from plaintiff's initial motion, and that this information "could have and should have been included in his motion." For those reasons, the court deemed the motion for reconsideration "inappropriate."

The decision to grant or deny a motion for reconsideration "is 'a matter within the sound discretion of the Court, to be exercised in the interest of justice[.]'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A party seeking reconsideration is required to "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred . . . ." R. 4:49-2. Reconsideration

is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall within that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi, supra, 414 N.J. Super. at 288 (quoting D'Atria, supra, 242 N.J. Super. at 401).]

"For that reason, [r]econsideration cannot be used to expand the record and reargue a motion." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.) certif. denied, 195 N.J. 521 (2008). "A motion for reconsideration is designed to seek review of an order based on the evidence before the court on the initial motion, R. 1:7-4, not to serve as a vehicle to introduce new evidence in order to cure an inadequacy in the motion record." Ibid. (citing Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)).

Here, on his motion for reconsideration, plaintiff improperly attempted to expand the record and reargue the motion. Under those circumstances, the trial court did not abuse its discretion by denying the motion for reconsideration. Palombi, supra, 414 N.J. Super. at 289.

Next, plaintiff argues that the trial court erred in determining, both on the original motion and on the motion for reconsideration, that he failed to demonstrate either a prima facie case of changed circumstances warranting a hearing, or changed circumstances warranting a reduction in his child support and alimony obligations. Defendant disagrees, arguing that plaintiff made an insufficient showing that he had attempted to improve his adverse financial circumstances. Notwithstanding its determination that plaintiff had failed to satisfy the requirements of Rule 4:49-2 for reconsideration, the trial court disposed of this issue on the merits. The trial court did not abuse its discretion.

The standard for modifying support post-judgment under Lepis is "changed circumstances." Lepis v. Lepis, 83 N.J. 139 (1980); See generally Donnelly v. Donnelly, 405 N.J. Super. 117 (App. Div. 2009) (explaining application of the Lepis requirements). Whether a child support or "alimony 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). "Each and every motion to modify an alimony obligation '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.'" Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).

A court may reject "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. A judge is therefore required to reject a request for modification based on circumstances that are merely temporary. See Donnelly, supra, 405 N.J. Super. at 127-28.

The trial court determined that "there is no indication that [plaintiff's] alleged reduction of income is anything but temporary." In making that determination, the trial court noted that plaintiff "claims he has been losing money for years, but only provides one tax return for 2009." The court also explained that the voluminous records provided by plaintiff demonstrated current hardships, but not a permanent reduction in income.

Under those circumstances, we cannot conclude that the trial court misapplied its discretion by determining that plaintiff had failed to demonstrate a prima facie case of a permanent change in his financial circumstances. Although defendant had asserted that businesses he owned had not been profitable for more than two years, he continued to operate them instead of seeking other employment. The business that he co-owned with his second wife had generated sufficient revenues to support her $60,000 salary, though plaintiff claimed that it produced an insufficient profit for him to take a significant share as an owner. "'[W]hat constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor'"; as here, "who is 'in a better position to present an unrealistic picture of his or her actual income than a W-2 earner.'" Donnelly, supra, 405 at 128 (quoting Larbig, supra, 384 N.J. Super. at 23).

Plaintiff insists that the trial court based its decision primarily on its review of his jointly filed 2009 tax return. Although the 2009 tax return was a consideration, the trial court also focused on whether plaintiff's change in income was permanent or temporary.

Plaintiff also argues that the trial court ignored the PSA provision concerning his right to apply for modification of his alimony payments. However, the PSA provision, which stated that he could seek modification if his income dropped below $153,000, did not guarantee either that his application would be successful or that he would be entitled to a hearing in the absence of a prima facie showing of changed circumstances.

Plaintiff next contends that this matter should be remanded to a different judge because the trial court expressed its opinion about plaintiff's credibility. We reject that contention. "Bias cannot be inferred from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008). Although plaintiff contends the trial court made credibility findings adverse to him, he has not cited to one instance in the record where the court made credibility findings. We find his argument to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3 (e)(1)(E).

Lastly, plaintiff contends that the trial court did not sufficiently set forth findings of fact and conclusions of law as required by Rule 1:7-4. We note that at one point during oral argument the court implied that it had made these findings during the question-and-answer portion of the argument. That practice should be avoided. Confusion resulting from that practice can be easily avoided if the court announces its decision, including its findings of facts and conclusions of law, after the attorneys have completed their arguments.

Nevertheless, the court supported its memorializing order with a written statement of reasons. The reasons adequately explained the court's determination that plaintiff had not established the requirements of Rule 4:49-2 concerning reconsideration, and had not established a prima facie case of permanently changed circumstances.

In view of our disposition of plaintiff's appeal, the arguments defendant raises in her cross-appeal do not warrant discussion. R. 2:11-3 (e)(1)(E).

A

1 Plaintiff has made no argument in his appeal brief concerning the order of arrest. It appears from the record before us that, following plaintiff's filing of the notice of appeal, the trial court scheduled additional proceedings concerning the order of arrest. Because plaintiff has not argued the issue, we do not address it. See 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011) (declining to address an issue when the party asserting it has not made an adequate argument).

2 In the trial court, and again on appeal, defendant alleged that plaintiff's counsel had a conflict of interest. After we remanded the matter for a hearing, the parties resolved this dispute.