MICHELE SPANO-TERLIZZI v. LEE SPANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHELE SPANO-TERLIZZI,

Plaintiff-Respondent,

v.

LEE SPANO,

Defendant-Appellant.

______________________________________

April 13, 2015

Submitted January 14, 2015 Decided

Before Judges Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0812-13.

Matthew B. Lun, attorney for appellant.

Daniel K. Newman, attorney for respondent.

PER CURIAM

Defendant-ex-husband appeals from the Family Part's order of June 28, 2013, denying a motion to reduce his child support obligation and also requiring that he reimburse plaintiff-ex-wife $1,500 for her attorney's fees. After reviewing the record and considering the parties' arguments, we conclude the Family Part erroneously denied husband's motion on the ground that it was repetitive and came too soon upon the heels of prior denied motions to reduce child support. We remand for further consideration of the merits of husband's motion.

The parties married in 1999 and divorced in 2010. They have two children, born in 2000 and 2004. The marital home was in Warren County, and the divorce action was filed there. The May 3, 2010 final judgment of divorce incorporated the parties' marital settlement agreement. Wife was granted custody of the children, and husband retained parenting time in accordance with a schedule fixed by a pendente lite agreement of the parties. Wife would reside in the marital home until its anticipated mortgage foreclosure, but husband also agreed that she could move with the children to Pennsylvania without applying to the court for permission to do so. No alimony was to be paid by either party. Husband agreed to pay $350 per week in child support.

A sole parenting child support worksheet was attached to the final judgment of divorce in accordance with the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX to Rule 5:6A (2015) ("Guidelines"). The worksheet attributed zero income to wife and $1,076 per week in gross income to husband. Husband was unemployed at the time of the divorce but anticipated he would soon earn the imputed income through a job he would obtain though his union. In addition, husband agreed to pay $50 more than the $300 per week calculated under the Guidelines. The worksheet stated: "Both parents agree that this amount [$350] is needed to provide for children's needs at this time and feel this is a fair amount."

Eight months after the divorce, husband moved to reduce his child support obligation on the ground that his union job did not materialize and he was eventually compelled to accept a lower-paying job. By order dated February 18, 2011, the Warren County Family Part denied the motion without prejudice. The court found that husband's ten-month period of unemployment was a substantial change of circumstances but not a permanent one, and he had not shown adequate and sustained efforts to find employment comparable to the time of the marriage.

Immediately upon receiving the court's denial order, husband filed another motion to adjust his child support obligation. By order dated April 21, 2011, the Warren County court granted a modification of the child support obligation to account for the health insurance premiums of the children that husband was required to pay. Husband's direct payments to wife were reduced to $298 per week but the total amount of his financial obligation remained $350 per week.

A few weeks later, husband moved again to reduce his child support obligation, specifically to $196 per week. He presented evidence of his job search efforts and argued that the change in his circumstances was not temporary. By order dated August 24, 2011, the Warren County court denied husband's third motion, finding that the evidence did not establish he had been diligently applying for higher-paying jobs.

In the year following the divorce, wife moved with the children to Pennsylvania and eventually remarried. As of 2011, she and the children were living in her new husband's home. In 2013, defendant-ex-husband moved to Gloucester County and then filed a motion to change the venue of the matrimonial case because neither party continued to live in Warren County. Over wife's objection, the court granted the change of venue to Gloucester County by order dated April 11, 2013.

On May 24, 2013, husband filed his fourth post-divorce motion to reduce his child support payments, this time in Gloucester County. He also sought other relief regarding the children, parenting time, the marital home, and personal property. Wife opposed the motion and cross-moved for certain relief pertaining to the marital home and personal property.

Husband argued that his child support obligation should be re-determined and set in accordance with the Guidelines because of substantially changed circumstances, namely, the childcare needs and living circumstances of wife had changed since the time of the divorce. He sought recalculation of his child support obligation based on his 2013 income of $71,000 per year and also imputing income to wife.

By order dated June 28, 2013, the Gloucester County court denied without prejudice husband's fourth motion to reduce his child support obligation. The court noted that the parties had agreed to $350 in child support at a time when husband was unemployed, and he was earning more now than at the time of the divorce. The court expressed concern that husband had repeatedly moved to reduce his child support obligation and described his latest motion as "another shot at another jurisdiction when it's been litigated under, basically, the same facts, three previous times in their previous residential county." The court concluded there was no "substantial change in circumstances" to warrant modification of husband's child support obligation.

On appeal, husband argues his fourth motion was different from the prior Warren County motions in that it was based on wife's changed circumstances through the passage of time rather than his reduced income after the divorce. In fact, he concedes that his 2013 income is not less than his anticipated earnings of $1,076 per week at the time of the divorce. Nevertheless, he offers three reasons that wife should now contribute financially to the children's support: wife is no longer a single mother raising two small children alone; she has worked outside the home in the past and is capable of finding employment; and the children are older and do not need the same level of daycare as when they were younger. In effect, he argues that he agreed not to impute income to wife so that she could stay home and care for the children while they were very young, but his agreement was not intended to be permanent.

Wife responds that husband's motions have been repetitive, that she is not trained for any truly gainful employment once the costs of childcare are considered, that she has tried unsuccessfully to find employment in her familiar fields of work but the parties' joint 2009 bankruptcy is a hindrance to her finding a job in those fields, and that her newborn baby requires her daily care at home. She argues further that her remarriage is irrelevant to husband's child support agreement and current obligation.

Child support orders set only present obligations and are subject to modification at any time on grounds of a change in circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Even if negotiated and agreed to by the parties, a child support order may be changed upon a showing of changed circumstances. Id. at 146-47; Smith v. Smith, 72 N.J. 350, 360 (1977).

In general, an appellate court applies an abuse of discretion standard of review to the Family Part's decision on whether a change in circumstances warrants modification of support payments. See Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). An order of support may "be modified upon a showing of substantial, non-temporary changes in ability to support oneself or pay support," or "a circumstance relevant to the need for support . . . ." Gordon v. Rozenwald, 380 N.J. Super. 55, 67-68 (App. Div. 2005). A change in a parent's income is recognized as a change in circumstances affecting support obligations. SeeLepis, supra, 83 N.J. at 151.1

If the Family Part determines that changed circumstances warrant a reconsideration of the child support order, it must determine the parties' actual or imputed incomes and compute child support in accordance with the Guidelines.

Here, husband contends his concessions on child support at the time of the divorce were tied to the parties' joint desire to allow wife to stay home to care for the children, who were then five and nine years old. He argues that, with the children grown older and with wife's new living circumstances upon remarriage, she can work outside the home and income should be imputed to her. The Family Part did not address the merits of this argument. Instead, it denied husband's motion on the ground that he had filed three previous motions to reduce his child support obligation and the reduction had been denied.

The Family Part may deny a motion to modify support if an order was recently filed determining the amount to be paid. See Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009) (Lepis motion was properly denied following similar motion filed nine months earlier); Larbig, supra, 384 N.J. Super. at 22-23 (twenty months since entry of the divorce judgment was insufficient time to conclude that a reduction in the husband's business income was permanent).

In this case, however, husband presented different facts and arguments from those of his earlier Warren County motions.2 The two earlier decisions denying his motions addressed whether husband met his burden of proving that his post-divorce reduction in income was more than a temporary circumstance. The Gloucester County motion acknowledged that husband had a new job and income that was more than the amount imputed to him at the time of the divorce. But husband now claimed that wife was capable of working and should also be responsible for supporting the children financially. See Pascale v. Pascale, 140 N.J. 583, 593 (1995) ("both parents [must] share the obligation to support their children . . . ."); Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993) ("[A] parent is obliged to contribute to the basic support needs of an unemancipated child to the extent of the parent's financial ability . . . ."). Husband's contention in the Gloucester County motion was not addressed in the earlier Warren County motions.

The Gloucester County court commented that wife's circumstances had not changed significantly since the prior motions, but it is undeniable that the children had grown older and wife had remarried and moved into a new home since the time of the prior motions. While her new husband's income is not relevant to determining child support obligations of these parties, wife's own ability or inability to earn income is relevant.

The court should have considered whether wife was in fact able to earn income. It should have explored the children's current daycare needs, wife's capability and efforts to find employment, and any other reason that she could or could not work. See Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998) (income is imputed only if the parent is "voluntarily underemployed"); see also Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (A finding of voluntarily unemployment or underemployment "requires intentional conduct without just cause.").

Also, because sufficient time has passed since the marital settlement agreement, the court should review the current financial circumstances of the parties as it affects actual or imputed income of each. See Weitzman v. Weitzman, 228 N.J. Super. 346, 352 (App. Div. 1988) (Family Part erred in failing to consider the merits of an application for support because it viewed a four-year-old order on the same subject as preclusive), certif. denied, 114 N.J. 505 (1989).

If contested factual issues are revealed by updated case information statements and other submissions, the court must resolve those issues, including through an evidentiary hearing if necessary. We make no determination of whether income should or should not be imputed to wife. We leave that issue to the sound discretion of the Family Part upon consideration of all relevant factors. See Storey v. Storey, 373 N.J. Super. 464, 470, 474-75 (App. Div. 2004); Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002).

We next turn to husband's contention that the Family Part erred in awarding reimbursement of attorney's fees to wife. Generally, the abuse of discretion standard of review applies to the Family Part's award of attorney's fees. Williams v. Williams, 59 N.J. 229, 233 (1971); J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).

Here, the Family Part awarded $1,500 to wife after reviewing the factors listed in Rule 5:3-5(c). The court stated the award was not based on enforcement of litigant's rights as provided in Rule 1:10-3, presumably enforcement through wife's cross-motion alleging that husband had wrongfully broken into the marital home in Warren County and removed some of her personal property still stored there. Rather, the court referred to its ruling that husband's motion to reduce child support was repetitive.

The court applied the correct legal standard under Rule 5:3-5(c) and analyzed the parties' financial circumstances appropriately, but we have concluded in this opinion that husband's fourth motion was not repetitive and should have been considered on its merits. Because we have disagreed with that important factor in the court's decision to award attorney's fees, that issue should also be reconsidered after the underlying child support motion is decided.

Reversed and remanded for reconsideration of child support and attorney's fees. We do not retain jurisdiction.

1 In addition to modification based on changed circumstances, child support withheld from the supporting spouse's paychecks is statutorily subject to periodic review by the court. N.J.S.A. 2A:17-56.9a provides in pertinent part

At least once every three years, unless the State has developed an automated cost-of-living adjustment program for child support payments, the parties subject to a Title IV-D support order shall be provided notice of their right to request a review. . . . Such review shall take into account any changes in the financial situation or related circumstances of both parties and whether the order of child support is in full compliance with the child support guidelines.

2 We cannot tell from the record on appeal whether husband was pro se or represented by counsel in his prior Warren County motions. He was represented by counsel in the fourth motion filed in Gloucester County.