EARL DUNBAR, II v. KIMBERLY WOODS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EARL DUNBAR, II,

Plaintiff-Appellant,

v.

KIMBERLY WOODS,

Defendant-Respondent.

________________________________________________________________

April 15, 2014

Submitted February 25, 2014 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-684-09.

Earl Dunbar, II, appellant pro se.

Shimalla, Wechsler, Lepp & D'Onofrio, L.L.P., attorneys for respondent (Amy Wechsler, of counsel; Tam M. Abitante, on the brief).

PER CURIAM

Plaintiff was represented by counsel when the parties entered into a property settlement agreement (PSA) and a custody and parenting time agreement that were incorporated into their Judgment of Divorce (JOD) in June 2010. Since that time, he has made successive motions to modify the terms of that agreement, all of which required the showing of a change in circumstances and all of which have been denied. He now appeals from an order that denied his latest request to set aside the PSA or, in the alternative, to substantially modify its terms; and which granted defendant's cross-motion to find plaintiff in violation of litigant's rights and recalculate plaintiff's child support obligation. We affirm, substantially for the reasons set forth in the written opinion of Judge Lawrence P. DeBello.

The parties were married on November 8, 2008, one day after entering into a prenuptial agreement. Plaintiff filed for divorce and relocated from New Jersey to Louisiana in February 2009. Defendant gave birth to the couple's twins on July 30, 2009. Plaintiff was unemployed when the parties, represented by counsel, entered into the agreements that were incorporated into their JOD in June 2010.

Plaintiff has filed multiple post-judgment motions to set aside or substantially modify the PSA. In the motion he filed in February 2011, he asserted that it was the product of fraud and deception by defendant who allegedly inflated her child care expense, despite the fact that the parties had explicitly calculated support without relying upon the budget or income figures set forth in either party's case information statement (CIS). After additional submissions requested by the court, plaintiff's motion was denied in April 2011.

Plaintiff filed the motion that is the subject of this appeal in January 2012. Again, he alleged that his support obligation should be reduced because defendant committed fraud in overstating her daycare expenses. He sought to vacate the PSA or decrease his child support payments, modify visitation arrangements, and other forms of relief that included a request to change both children's middle names to Woods and both children's last names to Dunbar. Defendant filed a cross-motion, asking the court to find plaintiff in violation of litigant's rights for failing to abide by the PSA and the court's previous orders.

The order appealed from denied all relief requested by plaintiff, found him to be in violation of litigant's rights, and awarded defendant counsel fees in the amount of $2100. In a statement of reasons attached to the order, Judge DeBello explained that modification of the terms of the PSA "would require a substantial change in circumstances showing that renders the agreement no longer fair or equitable to enforce" and that plaintiff had failed to make such a showing. The court also stated,

[C]laims for relief requesting modification of child support, calculation and payment of arrears or establishing daycare costs, require procedurally under R. 5:5-4 a copy of both the prior Case Information Statement (CIS) and a current one, complete with current tax returns, W-2s and paystubs to support any claim of a substantial, permanent change in circumstances warranting a recalculation. Procedurally and substantively, Plaintiff has not met these requirements.

The court added, "It is worth noting that many of the same arguments raised herein were the subject of earlier motions that were denied. Plaintiff is again reminded of the requirements of R. 1:4-8 concerning frivolous motions of a repetitive nature being filed."1

Plaintiff makes the following argument in his appeal from this order:

THE RESPONDENT AND I WERE MARRIED IN NOVEMBER 2008 AND WERE SEPARATED IN FEBRUARY 2009. THE TRIAL COURT GRANTED A FINAL DIVORCE IN JUNE OF 2010. DURING AND POST OF THE DIVORCE PROCESS THE RESPONDENT KNOWINGLY SUBMITTED FALSE AND OR FORGED DOCUMENTS AND VERBALLY DECEIVED BOTH THE COURT AND MYSELF ABOUT RELEVANT FACTS PERTAINING TO THE DIVORCE. SHE NOT ONLY LIED ABOUT CHILDCARE COST, DAY TO DAY EXPENSES SHE BUT ALSO CREATED LIES ABOUT THE CHILDREN HEALTH AND MADE EXTENSIVE EFFORTS TO "MUDDY THE WATERS" IN AN ATTEMPT TO CREATE DIVERSIONS FROM THE TRUTH.

Plaintiff's argument lacks any merit. We affirm, substantially for the reasons set forth in Judge DeBello's written opinion.

Affirmed.

1 While this appeal was pending, plaintiff filed yet another motion with the trial court seeking relief from certain obligations under the Agreement and earlier court orders, which was denied. Rule 2:9-1(a) sets forth in pertinent part that, with certain exceptions not apparently applicable here, "the supervision and control of the proceedings on appeal . . . shall be in the appellate court from the time the appeal is taken[.] The trial court, however, shall have continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10 and as otherwise provided."