LENORE N. ZANGRILLI v. JASON D. ZANGRILLI

 

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

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3815-17T2

LENORE N. ZANGRILLI,

         Plaintiff-Respondent,

v.

JASON D. ZANGRILLI,

     Defendant-Appellant.
_______________________

                   Argued October 11, 2018 – Decided November 9, 2018

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FM-16-1553-11.

                   Elizabeth D. Burke argued the cause for appellant
                   (Ziegler, Zemsky & Resnick, attorneys; Steven M.
                   Resnick and Ruth Kim, on the briefs).

                   Tiffany K. Ornedo argued the cause for respondent
                   (Northeast New Jersey Legal Services, attorneys;
                   Tiffany K. Ornedo, of counsel and on the brief).

PER CURIAM
      Defendant Jason D. Zangrilli appeals from the March 16, 2018 order

denying his application to modify alimony based on changed circumstances as

well as the April 13, 2018 order setting his child support based on the income

imputed to him in the property settlement agreement (PSA).

      The parties were married on August 28, 1994 and had three children:

two girls born in 1999 and 2003; and a boy born in 2005.             During the

marriage, defendant was employed as a creative director of marketing in New

York City, earning between $157,000 and $285,000 annually. In December

2011, defendant was involuntarily terminated from his position. He continued

to work on a freelance basis, and also operated his own consulting business.

Plaintiff did not work throughout the marriage until she obtained employment

in 2012 as a client services representative, earning $44,000 annually.

      The parties divorced on January 3, 2013, and the judgment of divorce

incorporated the terms of a PSA. For purposes of calculating alimony and

child support, the PSA imputed an income of $40,000 to plaintiff, and

$150,000 to defendant. The PSA provides:

            [I]n the event that the [defendant] secures employment
            earning an actual gross income of less than $150,000
            per year, the [defendant]’s alimony obligation shall
            not decrease and a gross income of $150,000 shall be
            imputed to the [defendant] for the purposes of
            calculating alimony. However, in the event that the

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            [defendant] secures employment earning an annual
            gross income exceeding $150,000 per year, the
            [defendant]’s alimony obligation shall be modified.

The parties further agreed to provide each other with monthly status reports

describing job search efforts.

      Defendant agreed to pay plaintiff limited duration alimony (LDA) for a

period of fifteen years.   He agreed to pay $544.87 per week in 2013 and

$705.12 per week for the remainder of the fifteen-year term. He agreed to pay

child support throughout 2013 in the amount of $314 weekly, and starting in

2014 until emancipation in the amount of $338 weekly.

      The parties agreed that a substantial change in circumstances would

permit either party to seek modification of alimony provisions pursuant to

Lepis v. Lepis,  83 N.J. 139, 151 (1980). The PSA provided:

            The parties acknowledge that they understand that a
            substantial change of circumstances would permit
            either party to make an application to a Court of
            competent jurisdiction to modify the alimony
            provisions set forth in this agreement. Neither party
            has waived his or her right to seek a modification of
            alimony as provided for under the case of Lepis.

      On October 3, 2013, defendant was found in violation of litigant's rights

for his failure to pay alimony and child support, his outstanding obligations

amounting to $19,393.89, as well as for his failure to provide proof of income


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and employment pursuant to the PSA. Defendant was also ordered to pay

counsel fees. Defendant sought modification of his support obligations based

on his reduced income as well as a reduction in child support based upon the

emancipation of his oldest child.

      In December 2011, defendant was involuntarily terminated from his

position. He said he was unable to secure work in advertising due to the

changing landscape of the job market, that his position had been largely

outsourced by robotics, and that he is "aged out of the advertising industry" at

47 years old. Defendant obtained employment as a truck driver in October

2017 in part because the job did not require expensive training and offered

more stability than the advertising industry. Defendant detailed his financial

situation and his efforts to find employment. He also retained an expert who

prepared a vocational evaluation and earning capacity assessment. Defendant

presented proof of job applications sent between January and June 2017,

resumes, and networking efforts.     He certified he had sent over 600 job

applications between December 2011 and June 2017, and that he had also been

operating a consulting business in an effort to meet his support obligations.

He had attended seminars and continuing educational opportunities in his field

before changing careers.    He had changed careers to obtain more reliable


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employment.     Defendant's anticipated income as a truck driver, which is

determined by mile at a rate of forty-two cents per mile, is between $54,600

and $65,520, and he requested that the court impute an income to him of

$60,000 for purposes of recalculating his support obligations.   Defendant also

provided his tax returns from 2012 to 2016 and certified that he had filed for

bankruptcy. He had liquidated his savings and began living with his aunt; he

had $556.13 in his checking account and $16,500 in credit card debt.

Defendant had depleted his retirement accounts, savings accounts, life

insurance and stock holdings in order to meet his support obligations.

      Defendant provided the following chart in his application, demonstrating

his fluctuation in salary:

             2012: $31,651 (includes unemployment)
             2013: $75,835 (includes unemployment)
             2014: $151,247
             2015: $148,065
             2016: $37,088
             2017: $18,420

Defendant's vocational assessment expert opined that defendant:

             has made a successful transition from his prior
             occupation to an unrelated occupation . . . [which] was
             necessitated by his lack of work and earnings in his
             prior occupation as a Creative Art Director, due in
             large measure to technological changes in the
             advertising industry and the limited number of
             opportunities presently and projected for the future in

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               this field. Although his current occupation is lower
               paying than his prior creative work, it is steadier work
               with ample opportunity for sustained employment and
               wage growth over time.

The expert recommended that defendant continue working as a truck driver.

      The motion court issued an order denying defendant's request to reduce

his alimony obligations based on substantial change of circumstances, and

denying a plenary hearing. The court determined that defendant had not made

a prima facie showing of changed circumstances under Lepis,  83 N.J. at 151,

noting that:

               the court acknowledges that the [d]efendant made
               efforts in applying to jobs as evidenced by the proofs
               of applications he submitted. However, this court
               holds that the proofs are not enough. Defendant is not
               impaired, and seeks the change in alimony on his
               inability to secure employment with pay similar to the
               pay he had prior to divorce . . . . Defendant's limited
               proofs only show a consistent job search for the period
               of January to June 2017. There are no proofs of a job
               search from the time that [d]efendant's purported
               financial troubles began, nor has [d]efendant provided
               proofs of a continued job search until the time of
               filing. Furthermore, [d]efendant has not shown a
               meaningful effort to improve their status. While
               [d]efendant has shown [his] application efforts, there
               are no other efforts taken that would improve
               [d]efendant's chances and ability to find work or
               substantially similar work. Lastly, while the [c]ourt
               acknowledges [d]efendant's application efforts within
               the area of a "creative director" position, there were no
               proofs submitted beyond these applications that

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            [d]efendant applied for similar work arising out of the
            same experience or skill set.

      The motion court did, however, grant defendant's request to reduce his

child support obligation based on the emancipation of the eldest child,

establishing the support on an annual income of $65,000.        After plaintiff's

counsel brought this anomaly to the court's attention, the court issued an April

13, 2018 order amending defendant's child support obligation to reflect the

imputed income of $150,000.

      A motion to modify alimony "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." Donnelly

v. Donnelly,  405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v.

Larbig,  384 N.J. Super. 17, 21 (App. Div. 2006)). Our review of the trial

court's discretionary determination regarding defendant’s support obligations

"is limited to whether the court made findings inconsistent with the evidence

or unsupported by the record, or erred as a matter of law." Reese v. Weis,  430 N.J. Super. 552, 572 (App. Div. 2013) (quoting Cesare v. Cesare,  154 N.J.
 394, 411 (1998)); see also Storey v. Storey,  373 N.J. Super. 464, 479 (App.

Div. 2004). We are, however, less deferential to a determination without a

hearing, especially when material facts are at issue. N.J. Div. of Youth &

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Family Services v. G.M.,  198 N.J. 382 , 396 (2009) ("when no hearing takes

place, no evidence is admitted, and no findings of fact are made . . . appellate

courts need not afford deference to the conclusions of the trial court.").

      A "trial court’s interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special deference."

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378

(1995).   We review a motion court's interpretation of the law de novo.

Occhifinto v. Olivo Constr. Co. LLC,  221 N.J. 443, 453 (2015) (citing State ex

rel. A.B.,  219 N.J. 542, 554-55 (2014)).

      Courts retain the power to modify support orders entered where there is

prima facie evidence of a change in circumstances even where there is a

property settlement agreement, as such settlement agreements should be

enforced only "to the extent they are just and equitable." Innes v. Innes,  117 N.J. 496, 518 (1990) (quoting Schlemm v. Schlemm,  31 N.J. 557, 581-82

(1960)). In determining whether a downward modification is appropriate, the

court may consider the supporting spouse's income and assets.           Miller v.

Miller,  160 N.J. 408, 422 (1999). A hearing is necessary "to resolve a genuine

issue of material fact . . . ." Adler v. Adler,  229 N.J. Super. 496, 500 (App.

Div. 1988).


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      The Lepis standard for modification is two-fold: (1) the party moving for

modification bears the burden of making a prima facie showing of changed

circumstances; and (2) if a prima facie showing has been made and a genuine

dispute exists as to a material issue of fact, the court should then order

discovery and a plenary hearing to determine whether the obligor has the

ability to pay. Lepis,  83 N.J. at 157-59. A decrease in the supporting spouse’s

income may constitute a changed circumstance warranting modification of

support obligations. Id. at 151.

      Defendant demonstrated a prima facie case of a significant good-faith

reduction of income, to justify a plenary hearing, from the imputed $150,000

as an advertising art director to the claimed actual income of $60,000 working

as a truck driver.    He also demonstrated that his assets were completely

dissipated. Whether defendant made sufficient efforts to obtain employment in

advertising, or another higher-paying field, may be fleshed out at a plenary

hearing after discovery is exchanged.

      As part of the plenary hearing the court may, if it sees fit, also determine

the intent of the parties in entering into a PSA that seems to preclude a

reduction of support based on a reduction of income in one paragraph, while

describing the parties' agreed-upon right to seek modification of alimony based


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on a "significant change of circumstances."        In the unlikely event a Lepis

waiver was intended, see Morris v. Morris,  263 N.J. Super. 237, 239-40 (App.

Div. 1993), the court need not determine whether a sufficient change in

circumstances exists to modify support. See also Ordukaya v. Brown,  357 N.J.

Super. 231, 236 (App. Div. 2003) ("plaintiff waived any claim for support and

agreed to an 'anti-Lepis' provision precluding any claim for change in

circumstances supporting a claim for alimony.").

      Reversed and remanded for a plenary hearing.            We do not retain

jurisdiction.

      Reversed.




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