DARIEN DASH v. DEBORAH DASH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1201-11T1

DARIEN DASH,

Plaintiff-Appellant,

v.

DEBORAH DASH,

Defendant-Respondent.

___________________________

June 7, 2012

Argued May 15, 2012 - Decided

Before Judges Payne, Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-002074-03.

Borce Martinoski argued the cause for appellant.

Paul Grosso argued the cause for respondent.

PER CURIAM

Darien Dash appeals from a Family Part order dated September 23, 2011, finding him in violation of litigant s rights and ordering him to pay his ex-wife Deborah Dash $12,550 in child support arrears; denying without prejudice his motion to decrease his child support obligation, due to his failure to comply with Rule 5:5-4(a); denying his request for credits for certain expenses he claimed to have paid for the couple s children over the past eight years; and denying his application for counsel fees.1 We affirm.

I

The parties were married in 1994 and have three children. They were divorced in 2003. They entered into a property settlement agreement (PSA) following negotiations in which Darien was represented by counsel and Deborah was pro se. In the PSA, both parties waived the right to alimony. They agreed to joint legal custody, with Darien being the parent of primary residence but with Deborah having "reasonable and liberal rights of parenting with the children." There was no dispute that in fact the children spent time living with each parent. In the PSA section captioned "child support," the parties agreed that Darien "shall pay child support . . . in the amount of $3,100.00 per month broken down as follows: $2,500.00 as and for rent payable directly to the Landlord by the husband, and $600.00 as and for nursery school (pre-K) directly by the husband to the school." Darien agreed to keep the children covered under his medical insurance, and Deborah agreed that if she became employed at a job with health insurance, she would add the children to her policy as secondary coverage.

On August 12, 2011, Deborah filed an application to enforce the PSA, alleging that Darien had failed to pay her rent and that she and the children were about to be evicted. She also sought reformation of the PSA, claiming that she was unrepresented when she agreed to waive alimony and that the financial terms of the PSA were inequitable.

Darien filed a cross-motion asking that the parties oldest son be deemed emancipated retroactive to his eighteenth birthday in 2010, a request to which Deborah later consented. He also asked that his child support obligations be recalculated based on the Child Support Guidelines "due to substantial change in circumstances." And he sought to recoup eight years' worth of alleged "credits" for amounts he had spent on the children for medical expenses, education, and extracurricular activities. He also requested counsel fees.

Although he submitted evidence of his past expenditures, Darien did not properly support his claim to modify child support. He filed only a partial current Case Information Statement (CIS), without complete supporting documentation, and he did not file a CIS from 2003, to support his claim of changed circumstances allegedly justifying a change in his child support obligation. According to Darien s certification, when he agreed to the PSA, his business was suffering and he only earned $18,000 in 2004. He admitted that he was currently earning $100,000 per year. Nonetheless, he sought a reduction in his child support obligation from $2500 a month to $38 per week.2

In an oral opinion placed on the record on September 23, 2011, Judge Ronny Jo Siegel found there was no dispute that Darien had failed to pay Deborah s rent, as required by the PSA. Judge Siegel declined to modify the $2500 set forth in the PSA based on Darien s assertion that the parties made an oral modification allowing him to pay less. She noted that the PSA by its terms provided that any modifications must be made in writing. She also noted that Darien had provided no evidence that he had even paid the smaller rental amount that he claimed he owed. She ordered Darien to pay Deborah s back rent within ten days. She denied Deborah s application to reform the PSA, finding it was untimely and lacked evidentiary support, and denied her application for counsel fees.

She then turned to Darien s application to reduce his child support obligation. She found that, unlike many child support agreements, the PSA did not tie the amount of child support either to the parties incomes or to the ages of the children. It was cast as rent. She also considered Darien s failure to provide proof of his own changed economic circumstances, noting that, in opposing Deborah s application to revise the PSA, Darien s counsel had argued that she failed to file a CIS:

So what does this Court need? This Court needs exactly what counsel for [Darien] said the parties need. [Darien] has the burden[,] when he seeks downward modification[,] of presenting two sets of facts, the financial facts at the time he entered into the agreement and his current financial facts. I was not given the financial facts that were applicable at the time he entered into the agreement. I don t have a Case Information Statement that governed. I don t have a tax return that governed.

The judge further noted that Darien had only provided two pages of his 2004 and 2005 tax returns, which "just gave me the bottom line figures for a man who was self employed." He did not provide any back-up documentation justifying his claim that he made under $20,000 in those years. Nonetheless, the judge found

he had just entered into a massive agreement requiring him to pay child support well in excess of what he claimed he was drawing. So the proof that he afforded the court at the time he entered the agreement was insufficient. And the proof he s offered me today is insufficient.

Therefore, the judge concluded that Darien had not complied with Rule 5:5-4(a), and she denied the application on that basis. The judge confirmed that Darien s future child support obligation "shall be in the amount of $2500." However, she clearly stated that Darien had the right to file a future, properly-supported application based on changed circumstances.

The judge rejected Darien s claim for eight year s worth of reimbursements for sums he claimed to have expended on the children s clothing, extracurricular activities, and other expenses not required by the PSA. She concluded those were voluntary payments for which he could not now claim reimbursement from Deborah. She also found he was estopped from making a claim for unreimbursed medical expenses when he had never previously asked Deborah to obtain insurance and provided no proof as to when she began working at a job that provided such coverage. However, since there was no dispute that Deborah currently had a job that provided medical coverage, the judge ordered her to add the children to her policy within thirty days. She denied both parties applications for counsel fees.

II

We review the judge s decision on a motion to reduce child support for abuse of discretion. See Larbig v.Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). As the Supreme Court held in Lepis v.Lepis, 83 N.J 139 (1980), to be entitled to either financial discovery or a plenary hearing, the applicant must make a prima facie showing of changed circumstances. Id. at 157-58; see also Isaacson v.Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). Accordingly, under Rule 5:5-4(a), a Lepis motion must be supported by financial documentation showing the moving party s income and expenses at the time of the PSA and at the time of the application. Complete financial documentation is particularly important where an applicant is self-employed, because self-employment presents unique opportunities to manipulate income. See Larbig, supra, 384 N.J. Super. at 23. We share Judge Siegel s skepticism that Darien s income at the time of the PSA could have been as meager as he now suggests, given his agreement to pay, at that time, $3100 a month in support. However, if in fact his income is now five times what it allegedly was in 2004, it is difficult to comprehend how that "changed circumstance" would warrant a downward support modification.

In summary, we agree with Judge Siegel that Darien s application was not supported by adequate proofs. We reject Darien s argument that he should have been allowed discovery and a hearing in order to develop and present such documentation. As the trial judge noted, he is free to file a future Lepis application, provided it is properly supported with evidence.

Moreover, in this case, Deborah gave up her right to any other form of support, in exchange for a guaranteed rent payment of $2500 per month. The emancipation of the oldest child did not change her need to pay rent. All of Darien s remaining arguments concerning child support, including his arguments premised on the Child Support Guidelines, are premature without a showing of changed circumstances, which in turn requires a clear picture of the parties financial situation at the time they agreed to the PSA. See R. 5:5-4(a).

Darien s remaining arguments, including his claim to reimbursement for the children s private school tuition, medical expenses and other payments, as well as counsel fees, are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E). We affirm for the reasons stated in Judge Siegel s well-reasoned opinion.

Affirmed.

1 During the proceedings in the trial court, each party was referred to at various times as "plaintiff" or "defendant" depending on which of them filed the pleading. For clarity, we will refer to the parties by their first names.

2 Deborah did not dispute that when the children became of school age, the parties agreed that Darien could cease paying the $600 per month for pre-school.