CARMELA ARCIERI v. STEFANO RANDAZZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CARMELA ARCIERI,

Plaintiff-Appellant,

v.

STEFANO RANDAZZO,

Defendant-Respondent.

_________________________________

October 29, 2013

Submitted October 17, 2013 Decided

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1709-07.

Marc J. Rogoff, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from a June 12, 2012 order scheduling a plenary hearing; and a July 20, 2012 order reducing defendant's alimony and child support obligations, denying plaintiff's request to interview the parties' children, ordering defendant to pay dental bills, and denying plaintiff's request for counsel fees. We affirm.

The parties were married for approximately fifteen years, had four children together, and obtained a judgment of divorce (JOD) in 2008. The JOD required defendant to pay plaintiff $1500 per month in alimony and $257 per week in child support. In April 2012, defendant filed a motion to modify his support obligations certifying that the loss of his carpet business in 2008 constituted changed circumstances. He also sought to increase his visitation time with the children. Plaintiff filed a certification opposing the motion and challenging the existence of changed circumstances. She also cross-moved seeking to compel defendant to pay outstanding dental bills, requesting that the judge interview the children, and requiring that defendant pay her legal fees.

Judge James Hely conducted a plenary hearing to address the disputed factual issues. He took testimony from the parties and then issued a written opinion. The judge believed defendant's testimony and concluded that the loss of defendant's carpet business constituted "a permanent and significant" change in circumstances. Judge Hely relied on Rule 5:6A and found that good cause existed to depart from the child support guidelines.1 He then reduced defendant's obligation to pay child support to $100 per week and alimony to $200 per month, but the judge ordered defendant to pay $1150 per month towards his support obligation arrears. He also ordered defendant to pay the dental bills (after offsetting the value of two forklifts), denied plaintiff's request to interview the children regarding defendant's parenting time, and denied plaintiff's request for counsel fees. This appeal followed.

On appeal, plaintiff argues that (1) the judge abused his discretion by conducting a plenary hearing; (2) defendant failed to establish changed circumstances warranting a reduction in his support obligations; and (3) the judge erred by not conducting an in camera interview with the children, by issuing a credit to defendant for his obligation to pay dental bills, and by denying plaintiff's motion for counsel fees. We focus primarily on whether the judge abused his discretion by modifying defendant's support obligations.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Due to the Family Part's special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). We do not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). As long as the judge's findings of fact "'could reasonably have been reached on sufficient credible evidence present in the record . . . [considering] the proofs as a whole'" they are binding upon us. Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

A court may modify support obligations on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 145-46 (1980). Here, the judge found that defendant's loss of his carpet business was involuntary, led to a decrease in income, and constituted changed circumstances. See Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Lepis, supra, 83 N.J. at 151 (indicating in general that a "decrease in the supporting spouse's income" constitutes changed circumstances and warrants modification of support obligations)). Looking at the proofs as a whole, we have no reason to disturb the judge's finding that changed circumstances existed.

We acknowledge that the Family Part is granted discretion in awarding financial support in a matrimonial action, including whether the amount of alimony should be modified, Innes, supra, 117 N.J. at 504; Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006), and what amount of child support is appropriate when the child support guidelines are not applicable, Pascale v. Pascale, 140 N.J. 583, 595 (1995). "If consistent with the law, such an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). Against this standard, we see no error.

Regarding defendant's request to modify his alimony obligation, defendant was required to demonstrate that the changed circumstances "substantially impaired" his ability to support himself. Lepis, supra, 83 N.J. at 157. At the time of the divorce, the court imputed to defendant income in the amount of $85,000 per year. Defendant lost the carpet business around the time of the divorce. Defendant's 2010 tax return showed his annual income as a bus driver in the amount of $7560. Defendant's 2011 tax return reflected an annual income in the amount of $9283. Defendant's wages had also been garnished to satisfy his support arrears. Thus, there is sufficient evidence to show that defendant's ability to support himself had been "substantially impaired."

Judge Hely found that defendant attempted unsuccessfully to increase his income since becoming a bus driver in March 2010. Defendant, who indicated that he had "like [a] third-grade" education, testified that he (1) attempted to operate a carpet business out of his home; (2) tried to work for other carpet businesses as an installer; (3) obtained a special Class A license to drive a school bus after having completed "driving school" and a drug test; and (4) applied for employment with Home Depot, B.J.'s, ShopRite, and two limo companies. He testified that he routinely sought to increase his bus driving income by driving for student field-trip jobs. Defendant also stated that his sister-in-law fills out additional on-line job applications for him because of his computer limitations. Finally, he testified that he suffers from physical limitations due to operations on both arms, which also required him to hire other people to perform the carpet work for him when he owned the carpet business. The judge had the opportunity to assess the credibility of the parties and believed defendant's testimony. Applying the discretion afforded to a family court's fact-finding, Cesare, supra, 154 N.J. at 413, we conclude that Judge Hely's findings regarding the efforts defendant made to otherwise obtain additional employment are not "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" See Rova Farms, supra, 65 N.J. at 484.

Regarding defendant's request to reduce his child support obligations, the guiding principle is the "best interests of the children." Lepis, supra, 83 N.J. at 157 (quoting Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971). Here, the judge did not use the child support obligation guidelines. He stated that "if I use the child support guidelines and plug in [defendant's] present earnings as a school bus driver and factor in his new child with another relationship, he would have zero child support obligations." Instead, the judge disregarded the guidelines finding he could not allow defendant to pay no support.

After careful consideration of the record, we are satisfied that plaintiff's remaining arguments lack sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons expressed by Judge Hely in his July 12, 2012 and July 20, 2012 written opinions. We add the following brief remarks.

We reject plaintiff's contention that the judge erred by failing to conduct an interview of the children to resolve whether to expand defendant's visitation rights. The judge did not place much weight on the uncertified and outdated certification of the parties' sixteen-year-old daughter. The judge was also familiar with defendant's parenting time as he had made rulings on that issue for more than one and one-half years. We see no abuse of discretion here.

By denying counsel fees to the parties' lawyers, the judge properly considered the factors listed in Rule 5:3-5(c). A trial court's award of attorney's fees and costs in a family action is discretionary and thus reviewed under an abuse of discretion standard. R. 4:42-9(a)(1); see also Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We see no abuse here.

1 Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2579 (2013).