Karla f/k/a Karla n/k/a Karla v. Ronald

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0648-12T3

Karla Roth Comerford,

f/k/a Karla E. Roth,

n/k/a Karla Roth Bardinas,1

Plaintiff-Respondent,

v.

Ronald Comerford,

Defendant-Appellant.

_______________________________________

January 13, 2014

 

Submitted November 12, 2013 Decided

 

Before Judges Yannotti and St. John.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1247-04.

 

Amdur, Maggs & Shor, P.C., attorneys for appellant (Marguerite A. Maggs, Irene Shor, and Laura K. Wishart, on the brief).

 

Karla Roth Bardinas, respondent pro se.

PER CURIAM

On April 18, 2012, the Family Part denied defendant's motion to reduce his child support obligation and ordered him to pay his share of certain child-related expenses within a specified time frame. Defendant appeals an order entered by the Family Part on August 20, 2012, which denied his motion to reconsider the April 18, 2012 order in part, and denied another motion to reduce his child support obligation. For the reasons that follow, we reverse and remand for further proceedings.

I.

The parties were married on December 14, 1997, and two children were born of the marriage. One child was born in 2000 and the other was born in 2002. Defendant and plaintiff divorced on July 12, 2005. A property settlement agreement (PSA) was incorporated into the final judgment of divorce. Among other things, the PSA provided that the parties would share joint legal custody of the children, with plaintiff designated as the primary residential custodial parent.

The PSA required defendant to pay $1,400 per month in child support, beginning on August 1, 2005. Defendant also was required to maintain health insurance coverage for the children, and pay sixty percent of the children's unreimbursed medical expenses. Defendant also was responsible for sixty percent of the work-related day care and/or preschool expenses, and fifty percent of the costs of certain other child-related expenses. Defendant was additionally required to maintain life insurance. It appears that in the years that followed the divorce, defendant's monthly child support obligation was increased to $1,769, as a result of cost-of-living adjustments.

In March 2012, defendant filed a pro se motion for a reduction in his child support obligation. He also sought credits for his purchases of so-called "everyday" items he made during his parenting time with the children. Plaintiff opposed defendant's motion and filed a cross-motion to enforce litigant's rights seeking, among other relief, reimbursement for certain child-related expenses and proof that defendant was maintaining life insurance as required by the PSA.

The trial court entered an order dated April 18, 2012, which denied defendant's motion, and granted plaintiff's cross-motion in part. The court ordered defendant to pay $9,797.40 (for work-related childcare expenses), $2,871.95 (for extracurricular expenses for the children), and $6,816.72 (for the children's medical insurance coverage) within 180 days. The court also ordered defendant to pay $1,004.70 (for unreimbursed medical expenses) within 90 days. In addition, the court ordered defendant to provide plaintiff with proof of life insurance coverage within 30 days.

In its statement of reasons, which was appended to the order, the court noted that support orders are subject to modification based on changed circumstances, and the court was required to compare the parties' financial circumstances at the time the motion is made with the financial circumstances that existed when the parties divorced. The court stated that the movant has the burden of showing that the change in circumstances is substantial and permanent.

The court said defendant had not presented sufficient information that would allow a comparison to be made of his income at the time of divorce with his present income. The court pointed out that defendant's case information statement (CIS) and his pay stubs were not consistent. The court therefore determined that defendant had not shown that the change in his income was permanent or substantial.

The court additionally determined that defendant was not entitled to a credit for the items he purchased during his parenting time with the children. The court noted that defendant was obligated to provide the items for which he was seeking credit. The court wrote, "The party exercising parenting time is responsible for the basic necessities of a child during such time."

The court further determined that plaintiff was entitled to the reimbursements for the child-related expenses that she was seeking. The court noted that the PSA requires defendant to bear a share of these expenses, and plaintiff had provided proof of the costs she had incurred.

On or about May 8, 2012, defendant filed a pro se motion for reconsideration in part of the court's April 18, 2012 order. Defendant then retained a lawyer, and defendant submitted a supplemental certification in support of his motion.

In this supplemental certification, defendant stated that the court's order required that he pay $20,490.77 in reimbursements over a six-month period, along with his regular monthly child support payments for that same period, which totaled $10,614. Defendant said that the order therefore required him to pay about $5,184.13 per month, while he was only earning a net monthly salary of $4,523.60.

Defendant stated that his attorney also had informed him that his employer erred in the handling of the wage garnishment, and failed to withhold a sufficient amount in taxes. Defendant stated that he intended to have his employer correct that mistake, which would leave him with even less available net income.

Defendant asserted that he could not afford to make the payments required. He noted that he had accumulated arrears for the child-related expenses because he did not have sufficient available income to pay the child support and the other expenses for which he was responsible. He asked the court to permit him to pay the arrears at a rate of $200 per month. Defendant did not, however, ask the court to reconsider the total amount of reimbursements he owed.

Plaintiff opposed defendant's motion. In her certification, plaintiff stated that if defendant's motion was granted, it would take him more than eight years to pay the arrears. Plaintiff noted that, over the previous three years, she had been forced to pay her share and defendant's share of the child-related costs, despite repeated efforts to have defendant pay his share.

On or about July 6, 2012, defendant filed another motion seeking a reduction in his child support obligation. In a certification submitted in support of this motion, defendant stated that when the parties divorced, he had his own roofing and siding business and, according to a cash flow analysis performed for plaintiff, his income was determined to be about $140,000 per year. He stated that the recent "downturn" in the economy had a severe, negative impact on his income.

Defendant said that, in 2006, it was not possible to continue operating his business. He accepted a full-time position working for a large home improvement company called Energy Aid. He claimed to have personal and financial problems, and stayed at his parents' home while enjoying parenting time, but otherwise was living on his parents' boat or in his truck.

Defendant stated that, by 2008, the building sector of the economy "was near rock bottom and work was sporadic at best." Energy Aid had to reduce the salaries of its employees. To make ends meet, defendant began to work on a part-time basis for another company called Somerville Aluminum. By the end of 2008, defendant was relying solely on his work for Somerville Aluminum, since Energy Aid no longer had enough business to keep him on.

Defendant asserted that, in 2009, a close friend approached him with a "business idea" for a start-up company that was engaged in "antimicrobial treatments in large facilities." By 2011, that venture had failed. In August of 2011, defendant lost his position with Somerville Aluminum and in November 2011, his girlfriend's father hired him on a full-time basis to work for his company, Alfa Steel. His salary was $62,400. Defendant claimed that this salary was "an accurate reflection of [his] ability to earn now and in the future."

Defendant noted that he was required to pay $1,769 per month in child support, and he was responsible to pay a share of the other expenses for the children. Defendant also had to pay the outstanding arrears owed to plaintiff. He said his monthly support payments plus the arrears totaled $5,184.13 per month, and that did not include ongoing expenses for the children. Defendant stated that he only earned a gross salary of $2,400 every two weeks, which translated into net available monthly income of $4,523.60.

Defendant also stated that plaintiff had been unemployed at the time of the divorce, but in the previous three years, plaintiff had been working as a reporter for a cable news station. He thought her income was $55,000 per year. Defendant noted that plaintiff had remarried and her spouse had "significant means." He said that, based on the child support guidelines, his support obligation should be about $762.67 per month.

Plaintiff opposed defendant's motion and sought an order compelling defendant to provide proof immediately that he was maintaining the required life insurance coverage. In her certification, plaintiff asserted that defendant's motion for a reduction in child support had already been denied, and he had not presented any information that the court had overlooked. She stated that defendant was merely "seeking a second bite at the apple" and his motion was procedurally improper.

The trial court entered an order dated August 20, 2012, denying defendant's motion. The court determined that defendant had not provided any basis for reconsideration of the prior order. The court incorporated the findings that the court had appended to the April 18, 2012 order. The court also ordered defendant to provide proof of life insurance coverage. This appeal followed.

II.

Defendant argues that the trial court erred by failing to reduce his child support obligation because he established a significant change in circumstances. Defendant contends that the court failed to appreciate the significance of the information provided with his second motion. Defendant argues that he established that he has experienced a significant reduction in income since the divorce.

It is well established that changed circumstances may warrant modification of a parent's child support obligations. Lepis v. Lepis, 83 N.J. 139, 151 (1980). Such changed circumstances include:

(1) an increase in the cost of living;

 

(2) increase or decrease in the supporting spouse's income;

 

(3) illness, disability or infirmity arising after the original judgment;

 

(4) the dependent spouse's loss of a house or apartment;

 

(5) the dependent spouse's cohabitation with another;

 

(6) subsequent employment by the dependent spouse; and

 

(7) changes in federal income tax law.

 

[Ibid. (footnote and citations omitted).]

 

However, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary."
Ibid. (citing Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)).

If the movant makes a prima facie showing of changed circumstances, the trial court should order the exchange of the parties' financial information in order to allow the court to make "an informed determination as to 'what, in light of all the [circumstances] is equitable and fair.'" Id. at 157-58 (alteration in original) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

As we have explained, defendant filed a pro se motion for a reduction in child support based on a claimed substantial reduction in his income. The trial court correctly determined that the motion was procedurally and substantively deficient because defendant had not provided the court with the information necessary to allow a comparison to be made of defendant's income at the time of the divorce and his income at the time the motion was made.

As the court pointed out, defendant did not present the court with the CIS he filed at the time of the divorce. The court also pointed out that defendant's pay stubs were not consistent with the income reported on his recent CIS. The record therefore supports the court's determination that defendant had not shown that the alleged reduction in his income was either permanent or substantial. Defendant does not challenge that decision.

However, after the trial court denied the motion, defendant retained an attorney, who filed another motion on defendant's behalf, again seeking a reduction in defendant's child support obligation. In support of that motion, defendant provided the court with his CIS from the time of the divorce. He also corrected the mistakes he had made in his new CIS, and addressed the inconsistency between the amounts reported on the new CIS and his pay stubs.

In our view, the trial court erred by treating defendant's second motion as a motion for reconsideration of the April 18, 2012 order. Defendant sought reconsideration in part of the denial of his first motion to reduce his child support obligation, and also filed a new motion that corrected the deficiencies in the first application. In his reply certification dated July 26, 2012, defendant noted that he filed his first motion without the assistance of counsel after he realized that the court rules were too complex for him to "tackle on [his] own." Defendant retained an attorney to ensure that the motion was procedurally and substantively proper.

We are convinced that, under the circumstances, the trial court should have treated the second motion as a new motion rather than a motion for reconsideration. In his second motion, defendant made a prima facie showing that his income had decreased substantially since the time when his child support obligation was established. Furthermore, defendant made a prima facie showing that the reduction in his income has persisted for a sufficient time so that it cannot be characterized as temporary.

Defendant also made a prima facie showing that plaintiff's circumstances had changed since the divorce. She was not working at the time of the divorce but, according to defendant, she had a job and was allegedly earning $55,000 per year.

In her brief, plaintiff takes issue with many of defendant's assertions. She implies that defendant's business did not fail and he chose to begin working for Energy Aid. According to plaintiff, defendant worked for Energy Aid throughout the marriage. She claims that there has been an "enormous" amount of construction work available after Superstorm Sandy, and she believes defendant has been engaged in "side work" in construction.

Plaintiff additionally states that defendant is making more money now than he was earning at the time of the divorce and notes that defendant is no longer paying alimony, which was an additional $1,600 per month. She states that defendant now has more money, not less, to pay child support. Plaintiff also states that defendant is misrepresenting his involvement with the start-up company.

Plaintiff notes that, in addition to working with the start-up company, defendant was working in construction. Plaintiff states that she witnessed defendant driving a van with day laborers during this period, and suggests that these workers were engaged in defendant's on-the-side construction work. Plaintiff asserts that defendant was never without work.

We cannot determine whether plaintiff's assertions are correct. We conclude only that, in his second motion for a reduction in child support, defendant established a prima facie showing of changed circumstances, which warranted the exchange of discovery and a plenary hearing to resolve any genuine issues of material fact.

III.

Defendant additionally argues that the trial court erred by failing to reconsider the terms for repayment of his arrears in light of his financial circumstances. Specifically, defendant argues that the court erred in light of his financial circumstances, which defendant argues will not permit him to meet the payment schedule established by the April 18, 2012 order.

Motions for reconsideration are addressed to the trial court's discretion. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). Such motions

are granted only under very narrow circumstances: "Reconsideration should be used only for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence."

 

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

 

Here, the trial court stated that, in seeking reconsideration of the payment schedule for the arrears established in the April 18, 2012 order, defendant had not established that the court had acted in an arbitrary, capricious and unreasonable manner. The court added that defendant had not shown that the court's decision was incorrect, or that the court failed to appreciate the significance of probative, competent evidence.

We are convinced that the court erred by refusing to reconsider the payment schedule. In his motion, defendant made a prima facie showing that he could not afford to pay the arrears in the time required, along with his child support obligation and his share of the ongoing expenses for the children.

We have concluded that the trial court erred by denying defendant's motion for a reduction in child support and further proceedings on that motion are required. The amount that defendant is required to pay in child support will have a significant impact on defendant's ability to pay the arrears that have accrued. Thus, reconsideration of this part of the court's April 18, 2012 order is required.

Defendant further argues that the court erred by refusing to entertain oral argument on his motions. In view of our decision, we need not address defendant's argument.

Accordingly, we reverse the denial of defendant's second motion for a reduction in child support, and the denial of his motion to reconsider the payment schedule for the arrears that was established in the April 18, 2012 order. We remand for further proceedings on those motions.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

 

1 Appellant incorrectly designated the caption of the lower court's order on his notice of appeal.