ANTHONY SCIANNI v. ANGELA SCIANNI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5888-11T2

ANTHONY SCIANNI,

Plaintiff-Appellant,

v.

ANGELA SCIANNI,

Defendant-Respondent.

___________________________________

April 2, 2013

Submitted March 12, 2013 - Decided

Before Judges Waugh and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1542-04.

Archer & Greiner, attorneys for appellant (Lee M. Hymerling, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Anthony Scianni appeals the April 23, 2012 order of the Family Part denying his motion for a modification of the alimony and child-support obligations established by the property settlement agreement (PSA) annexed to the parties' dual judgment of divorce. He also appeals the order's award of counsel fees to defendant Angela Scianni, as well as the July 19, 2012 order denying his motion for reconsideration. We vacate the April 23 order and remand for further proceedings consistent with this opinion. Because we vacate the order deciding the original motions, the appeal of the motion for reconsideration is moot.

I.

We discern the following facts and procedural history from the record on appeal.

The parties were married in 1986. They have two daughters, born in 1988 and 1991 respectively. The parties separated in 2002. Anthony1 filed for divorce in April 2004. The divorce litigation was apparently contentious. Anthony and Angela eventually settled the issues related to support and the distribution of their property, resulting in the PSA at issue in this case. They were divorced on November 12, 2008.

Anthony is a dentist. Prior to the settlement that led to the PSA, Anthony developed shingles (herpes zoster), which he contends resulted in vision problems. He further contends that the illness resulted in a long-term reduction in his income due to his inability to practice full time. As a result, the support obligations in the PSA were established "as if" Anthony had a yearly income of $150,000 and "as if" Angela had $25,000 in annual income.

The PSA required Anthony to pay monthly alimony of $5000. Although the PSA provides that either party can seek a change in alimony based upon "a showing of a substantial change of circumstances," Anthony was not permitted to seek a downward modification prior to April 1, 2011. In the event Angela sought an increase in alimony prior to that date, the application was to be "determined upon all facts then present."

The PSA generally provided for child support pursuant to the child-support guidelines based upon the same income figures, but set the initial monthly amount at $1100 through the end of August 2009.2 The PSA further provided that, when the parties' youngest daughter started college and was not living at Angela's home, "child support shall be recalculated in consideration of all existing circumstances." The PSA also required Anthony to maintain life insurance for the benefit of Angela and the children, as well as health insurance for the children, subject to termination provisions not relevant to this appeal.

In March 2012, Anthony filed a motion seeking (1) a reduction in his alimony obligation, (2) emancipation of his two daughters or, in the alternative, for a reduction in his support obligation for the youngest daughter, and (3) modification of his health-insurance and life-insurance obligations. Angela opposed the motion, and filed a cross-motion seeking to enforce certain provisions of the PSA and for other relief. Both parties submitted certifications in support of their positions.

Following oral argument on April 20, the motion judge placed an oral decision on the record denying Anthony's motion in its entirety. He granted those portions of Angela's cross-motion seeking to enforce provisions of the PSA, but denied her application for appointment of an accountant to review the records of Anthony's dental practice and to require Anthony to contribute to the children's college and graduate school expenses. The judge also awarded Angela counsel fees in connection with the motion.

In May, Anthony filed a motion for reconsideration, which Angela opposed in a cross-motion. Both parties filed additional certifications. The motion judge denied both motions without oral argument. This appeal followed.

II.

Anthony raises seven arguments on appeal, which focus primarily on the judge's having decided the initial motions on the basis of disputed facts and his having ignored provisions of the PSA that Anthony argues entitled him to reconsideration of his support obligations.

A trial judge has broad discretion in reviewing an application to modify alimony and other support obligations. Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) (citing N.J.S.A. 2A:34-23; Innes v. Innes, 117 N.J. 496, 504 (1990)). As a result, "alimony and support orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980). Even if the parties enter an agreement about alimony, a former spouse may seek judicial review or modification of the spousal support "based upon a showing of changed circumstances." Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)), certif. denied, 180 N.J. 354 (2004).

The party seeking to modify an alimony obligation has the burden of showing "changed circumstances." Lepis, supra, 83 N.J. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)). In addition, "that party must demonstrate that changed circumstances have substantially impaired [his or her] ability to support himself or herself." Ibid. "Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151.

Further, a party may not deliberately remain underemployed in order to shirk his or her support obligations, and a trial judge has the discretion to impute a higher income to any individual the judge believes is doing so. See Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citing Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998)). Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988) (quoting Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.), certif. denied, 81 N.J. 52 (1979)) (internal quotation mark omitted), certif. denied, 114 N.J. 505 (1989). Rather, "a court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller, supra, 160 N.J. at 420. "[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one's family." Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982).

A fair reading of the PSA suggests that, at the time the PSA was being negotiated, Anthony was claiming a diminution in his earning capacity due to his medical condition and that the settlement was based on the alimony and child support obligations being established using imputed rather than actual income. Anthony was not permitted to apply for a downward modification of his alimony obligation prior to April 1, 2011, about two and a half years after the date of the agreement. Presumably, the parties anticipated that Anthony would be earning at full capacity by that time.3

With respect to child support, the PSA specifically provides that support "shall be recalculated in consideration of all existing circumstances" when the youngest daughter is in college and residing away from home, which she was doing at the time the motion was filed. In addition, we have held that a "child's attendance at college is a change in circumstance warranting review" of child support, although not of necessity a reduction. Jacoby v. Jacoby, 427 N.J. Super. 109, 113 (App. Div. 2012).

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). We are also aware that "not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.) (citing Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988)), certif. denied, 142 N.J. 455 (1995). However, our review of the record in this case convinces us that the facts relating to Anthony's ability to generate income require exploration at a plenary hearing.

It is clear from the motion judge's oral opinion that he decided the motions on the basis of disputed facts by making credibility determinations based upon his reading of the competing certifications.

[W]hen I read this certification of Mr. Scianni I was very moved. However, in reading the certification of Ms. Scianni, there's a completely different picture painted of Mr. Scianni. And I realize that the problem that the [c]ourt is so often faced [with], . . . faced every single time I get one of these motions, is that you got two different certifications . . . at completely different ends of the spectrum. And it's very difficult to sort truth from fiction, and who's telling the truth. And oftentimes you're probably better off just throwing the certifications out the window and making a decision based on something else.

However, in this case, what really rings a bell of credibility to me is the certification of Ms. Scianni. She says that, hey, do not believe Mr. Scianni. This is a divorce which was hotly contested. It was, it lasted for approximately four plus years. And that Mr. Scianni . . . knows no boundaries and will do everything he can to not have to pay his obligation and fight me.

I would note that Mr. Scianni has been current up until this time. But Ms. Scianni in her certification provides some proofs which certainly raise red flag[s] with the [c]ourt as to whether or not Mr. Scianni is being sincere and candid with the [c]ourt. And I don't think he is.

He's crying poverty yet he is still able to maintain a vacation villa down in St. Martin at the Ritz Carlton, and I would . . . note that according to the certification of Ms. Scianni, that this was a property which was underwater figuratively in that they owed, the parties owed money on this property. Now the property is current, up to date, paid off, and Mr. Scianni claims, well, you know, it's the mortgage on the property is really my cousin, but I have to hire a lawyer down in St. Martin to make some changes.

You know, and Ms. Scianni goes on to further state that you know, he claims he's driving a borrowed car, but he recently was seen driving a Mercedes Benz. If it is a borrowed car, why doesn't he provide any proof as to who the real owner of the borrowed car is. And if he was to do that, then the [c]ourt . . . might be surprised as to who really is the owner of the borrowed car. That certainly raises a red flag as well.

Ms. Scianni also points out that his practice that he's still working, that his practice, I should not go by his recent tax returns, that Mr. Scianni has been known to take cash in the past and not declare that on his tax returns, and that it is certainly not beyond Mr. Scianni to do that. This is a woman that has lived with Mr. Scianni, knows what Mr. Scianni is like. And that certainly has a ring of credibility to it as well.

[(Emphasis added).]

Clearly, Anthony has the burden of proving that he cannot earn income at his prior level. Nevertheless, the issues in this case are fact sensitive and cannot be decided on the papers, given the significant factual disputes reflected in the certifications. That there may be "red flags" does not obviate the need for a hearing, nor can a judge credit one spouse's certification against that of the other because the supported spouse has lived with the supporting spouse and "knows" what the other "is like." If it is ultimately determined that Anthony has been acting in bad faith, the remand judge can consider appropriate sanctions, including an award of counsel fees and expenses.

Interestingly, although the judge denied Angela's application for the appointment of an accountant, when he denied Anthony's motion for reconsideration he apparently thought he had made such an appointment. There appears to be a need for such a forensic evaluation to aid the remand judge in determining the credibility of Anthony's assertions concerning his income. However, we leave that issue to the discretion of the remand judge.

Because (1) most of the issues raised in Anthony's original motion and Angela's cross-motion turn to a significant extent on the operative facts, particularly Anthony's financial position, and (2) the judge did not explain the reasons for his decision on the issues related to emancipation and the Ritz Carlton villa, we vacate the April 23, 2012 order.4

We remand to the Family Part for further proceedings consistent with this opinion, including consideration of the appointment of a forensic accountant or other expert, appropriate discovery at the discretion of the remand judge, and the filing of current case information statements by each party. Because the motion judge has already expressed his views on the credibility of the parties without having held a plenary hearing, we direct that the matter be assigned to a different judge. We do not retain jurisdiction.

Vacated and remanded.

1 Because the parties share the same last name, we refer to them by their first names for the sake of convenience.

2 However, Anthony appears to have continued to pay the flat rate of $1100.

3 We do not preclude the parties from arguing before the remand judge that their intent at the time was otherwise. If there is such a dispute, it should be resolved as part of the plenary hearing.

4 Nevertheless, Anthony shall comply with paragraph 2(c) (verification of life insurance) of the order if he has not already done so. Such compliance is without prejudice to his application for a change in that requirement on remand.