PAMELA EARNEST v. JOSEPH BEDILION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PAMELA EARNEST,

Plaintiff-Respondent,

v.

JOSEPH BEDILION,

Defendant-Appellant.

_______________________________________________________________

May 9, 2014

 

Argued September 18, 2013 Decided

 

Before Judges Lihotz and Maven.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FM-17-0099-07.

 

Richard F. Klineburger, III, argued the cause for appellant (Klineburger & Nussey, attorneys; D. Ryan Nussey, on the briefs).

 

Paul H. Scull, Jr., argued the cause for respondent (The Law Offices of Paul H. Scull, Jr., attorneys; Mr. Scull, on the brief).

 

PER CURIAM

In this post-judgment matrimonial matter, defendant Joseph Bedilion appeals from a January 18, 2013 Family Part order denying his motion to modify his child support obligation to plaintiff Pamela Earnest. For the reasons that follow, we affirm the order denying relief, but reverse the provision of the order placing conditions on future motion filings.

A.

We glean the following facts from the record. The parties were divorced on February 28, 2007. The parties have three children, twin boys born in 1996 and a daughter born in 1999. The Final Judgment of Divorce continued custody of the children with plaintiff, and obligated defendant to pay child support directly to plaintiff in the amount of $1300 per month, payable at the rate of $650 twice a month.1

In May 2010, the parties entered into an agreement in which plaintiff agreed to waive $18,960.32 in child support arrears and medical expense reimbursements owed to her in exchange for gaining a longer period of time to refinance the former marital home. Defendant remained obligated to pay plaintiff $650 twice a month for child support, and $50 every two weeks towards future unreimbursed medical and dental bills for the children. Thereafter, defendant failed to make the child support payments.

On May 27, 2011, in response to plaintiff's motion to enforce litigant's rights and defendant's cross-motion for a modification of the child support obligation, the court ordered child support to continue at the same rate but to be via wage execution. The court held in abeyance the calculation of the amount of support pending receipt of financial information from the parties. On June 30, 2011, the court entered an order modifying the child support obligation to $310 per week as calculated in accordance with child support guidelines. The support was to be paid at the rate of $671.66 two times per month.

Defendant filed four motions between January and November 2012, each seeking to modify, reduce, or suspend his child support obligation. Plaintiff opposed all four motions. Defendant argued a change of circumstances resulted because of his December 2011 separation from employment and subsequent inability to maintain steady employment. He also asserted an inability to work for a time due to then-recent knee surgery in November 2012. While defendant claimed he had been laid off from two positions from December 2011 to November 2012, plaintiff countered defendant had in fact been terminated from at least one of his jobs as the manager of a medical supply warehouse. The court denied defendant's first two applications. Nevertheless, in September 2012, defendant filed his third application for a reduction in child support, immediately after which he filed a petition for Chapter 7 bankruptcy. The court stayed the motion, as well as plaintiff's cross-motion, pending the resolution of the Chapter 7 petition. In the interim, defendant filed his fourth application seeking a change in his child support obligation in November 2012.

On January 18, 2013, the newly assigned trial judge heard oral argument on the pending motions. The judge denied defendant's motions in their entirety. In his oral opinion, the judge noted he had reviewed the 2012 court orders. Relying on those decisions, as well as the proofs submitted by the parties, the judge determined defendant had a history of earning $60,000 to $70,000 per year, but "ha[d] a history of leaving his jobs" once wage executions were effectuated. The judge concluded the employment search documents attached to defendant's motion were "bogus" and did not "show any attempt to get employment."

Ultimately, the judge found defendant's "unemployment [was] clearly self-created." The judge specifically found that defendant failed to demonstrate the requisite change in financial circumstances since entry of the June 29, 2012 order. With respect to the resolution of defendant's bankruptcy petition, the judge rejected defendant's claim that his bankruptcy negatively affected his financial status. To the contrary, the judge noted "[i]n reality, that means all of those debts are gone. That means he's got his fresh start[.]" The judge deemed a plenary hearing unjustified, further ordering that until June 30, 2014, defendant's future applications would be screened prior to court consideration of the merits. This appeal followed.

Defendant contends the judge abused his discretion by failing to modify his child support obligation. He argues he showed the requisite change in circumstances under Lepis v. Lepis, 83 N.J. 139 (1980) to warrant a plenary hearing. In addition, defendant claims the judge erred in awarding counsel fees to plaintiff and by placing conditions on his future applications. Defendant seeks reversal of the order and a remand for a plenary hearing. After careful review of the record in light of the claims advanced by both parties, we conclude the trial judge erred in placing conditions upon defendant's future filings. We find no merit to defendant's remaining claims.

B.

Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). A party seeking modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting an adjustment. Lepis, supra, 83 N.J. at 157. Temporary or anticipated changed circumstances do not warrant modification. Id. at 151.

After a party has established a prima facie case of changed circumstances, the court may order financial disclosures in order to reach an equitable and fair resolution. Id. at 157-58. If a party clearly demonstrates "the existence of a genuine issue as to a material fact[,]" a hearing is necessary. Id. at 158-59.

The court does not determine whether there has been a substantial change in circumstances from the initial property settlement agreement; rather, the court looks at whether a change has occurred since the most recent modification. See Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009) (holding the court's focus in determining change in circumstances must "be on the length of time that had elapsed since the last milepost in [the] post-judgment proceedings").

Our scope of review of the trial court's decision is limited. As a general rule, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, we review the Family Part's interpretation of the law de novo without any special deference. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

"When reviewing decisions granting or denying applications to modify child support, we examine whether, given the facts, the trial judge abused his or her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial court's award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Ibid. (internal quotation marks omitted.)

C.

As a threshold matter, we are satisfied the judge correctly noted the series of similar motions filed in 2012. Given the timing of defendant's motions, the judge concluded defendant had failed to demonstrate that, even if his financial condition was as he alleged, the change was nothing more than temporary. See Lepis, supra, 83 N.J. at 151 ("Courts have consistently rejected requests for modification based on circumstances which are only temporary . . . .").

To that end, substantial credible evidence in the record supports the judge's finding that defendant had failed to demonstrate the requisite change in circumstances. First, the record indicates defendant has a salary history demonstrating an earning capacity of $60,000 to $70,000 per year. Second, the record shows that although defendant was "able bodied," he was complacent in seeking employment and had created his own unemployment status. Specifically, the judge characterized defendant's employment search documents as "bogus," but more importantly, found they did not denote any employment efforts since October 2012 proceeding.

The record further supports the finding that defendant did not make a prima facie showing that he was permanently incapable of obtaining employment at his potential earning capacity. Defendant merely made broad assertions that the job market was poor, there were limited positions for his specialized area, he was handicapped by his state of unemployment in finding future employment, and he could not locate employment in the entire United States despite diligent efforts. To show his "diligent efforts," however, defendant submitted documentation,2 which the judge found unreliable. "[I]t is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances." Donnelly, supra, 405 N.J. Super. at 130 n.5. Defendant has not done so here.

Since defendant failed to make a prima facie showing of changed circumstances, a hearing was not warranted. Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010). While the parties dispute many facts in this case, none of the disputed facts bear on the ultimate conclusion that defendant failed to demonstrate a substantial change in circumstances warranting a reduction or elimination of his child support obligation. We are convinced the judge did not abuse his discretion in making his findings, which evidenced a thorough review of the record and a consideration of the proofs as a whole. See Heinl v. Heinl, supra, 287 N.J. Super. 337, 345 (App. Div. 1996).

D.

Defendant argues the motion judge misapplied his discretion by imposing preconditions upon the court's consideration of defendant's future motions. We agree.

Courts have the inherent authority, if not the obligation, to control the filing of frivolous complaints. See Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 390-97 (App. Div. 2000). In Rosenblum, we held that in certain circumstances, due process is not impaired by enjoining litigation. Id. at 391. See also Parish v. Parish, 412 N.J. Super. 39, 49 (App. Div. 2010) ("'[W]here a pattern of frivolous litigation can be demonstrated, the Assignment Judge can prevent the complaint from being filed[,]' when other available sanctions, such as monetary penalties, proved unsuccessful as a deterrent.") (quoting Rosenblum, supra, 333 N.J. Super, at 391-92) (alterations in original)).

In Parish, we review prior precedent reviewing restraints on future motions in family matters. Id. at 49-51. See D'Amore v. D'Amore, 186 N.J. Super. 525, 530 (App. Div. 1982). In D'Amore, the former husband, cross-moved against his former wife seeking to enjoin her from making future motions, asserting that she had filed the motions solely to harass him. Id. at 529. The trial court granted the husband's motion by issuing an order prohibiting the plaintiff "from filing any further harassing motions against defendant in the future." Ibid. On appeal, we held that "[t]here is, of course, no question of the power of the court to enjoin prospective harassing litigation. But that power must be exercised consistently with the fundamental right of the public to access [] the courts in order to secure adjudication of claims on their merits." Id. at 530. Nevertheless, we reversed, determining that the restraint was "too broad and too ambiguous." Id. at 531.

In reversing, we stated there are "two circumstantial categories of enjoinable litigation." Id. at 530. "The first includes attempts to litigate claims despite their preclusion by such legal doctrines as res judicata. The second includes claims[,] which are already pending or are about to be instituted in another forum whose jurisdiction . . . is superior or prior." Ibid. Accordingly, we determined "it is only prospective litigation of specifically identified claims which is susceptible to restraint, and then, only after those claims have been determined to fall within one of the recognized categories of objective harassment." Ibid. "Before any prior restraint on access can be considered, the use of litigation to harass must be first objectively determinable." Parish, supra, 412 N.J. Super. at 49 (citation and internal quotation marks omitted).

In the case at hand, the judge did not prohibit defendant from filing future complaints, rather he ordered an interim process of court screening and pre-approval of any motions. Nevertheless, prior to doing so, the judge failed to make any findings that defendant's filings were harassing. Instead, he found they were repetitive and duplicative, causing undue expense on plaintiff. The judge stated,

I believe that the [c]ourt has an obligation when [it] find[s] that there appears to be serial filing of the same [m]otion to come up with some method of preventing this type of conduct in the future[.] [I]t's not fair to the other party to have to constantly hire an attorney to respond to these [m]otions, especially in a case where previous [o]rders have been entered for payment for counsel fees and not complied with.

 

The judge did not find the need to restrain defendant's future applications was related to either of the two circumstantial categories of enjoinable litigation established in D'Amore, or that defendant's conduct constituted "objective harassment." D'Amore, supra, 186 N.J. Super. at 530. Thus, we reverse Paragraph No. 8 of the January 18, 2013 order.

Defendant's remaining arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed in part. Reversed in part. We do not retain jurisdiction.

1 The parties' post-judgment motions involved issues pertaining to child support, parenting time, and other financial matters. For purposes of this appeal, we will only address those provisions related to the child support obligation.

2 Those records have not been provided to this court for review. Nevertheless, the trial judge's findings are entitled to our deference. See Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).