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DOCKET NO. A-4474-12T3








July 30, 2014

Submitted July 21, 2014 Decided


Before Judges Harris and Fasciale.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-65-13.


Underwood & Micklin, LLC, attorneys for appellant (John A. Underwood and Paul DePetris, on the brief).


Maria Viso, respondent pro se.


Plaintiff appeals from an April 13, 2013 order denying his motion to terminate or modify his support obligations. We affirm.

Plaintiff and defendant were married in November 1996 and thereafter had one child, born in 1998. In December 2007, the parties placed on the record the terms of a Stipulation of Settlement, which they later memorialized in a property settlement agreement (PSA), and which the court later incorporated into a January 2008 dual final judgment of divorce (JOD).

In June 2012, plaintiff filed a motion to modify his support obligations, asserting changed circumstances based on his decreased income and defendant's increased income. In April 2013, the judge denied the motion, stating in relevant part:

[O]f the three years the court is being asked to analyze, one year is consistent with the assumptions set forth in the [matrimonial settlement agreement]. The 2012 income data is, to say the least, 'soft.' Indeed, the report itself details its limitations.


Those three years[, 2010, 2011, and 2012,] taken together do not constitute proof of changed circumstances. . . . [For 2010 and 2012], the court is not prepared to make a finding that the compilation constitutes true income figures (essentially for the reasons set forth in the accountant's report regarding the limitations on its utility). Even assuming those hurdles were navigated, the court is not prepared to make a finding of changed circumstances in a nine year term alimony case based upon those three years. There is no evidence that plaintiff's diminished fortunes will continue. . . . Additionally, there was no definitive proof that the plaintiff is unable to resume a career in the gas industry.


However[,] prior to the hearing, the court determined that the plaintiff's submissions constituted a prima facie change in circumstances, warranting the exchange of financial information and conducting of a hearing.


What was conclusively proven at the hearing is that defendant's circumstances have changed. She is making significantly more income than when the Final Judgment of Divorce was entered. This qualifies as a change in circumstances warranting a re-examination of the spousal support. . . . Her case information statement reports [$5200] per month in monthly expenses. She testified that she is renting a second home so the parties' child can attend [a different school]. [Her] W-2's for 2012 total $51,000, almost $20,000 more than the $32,500 imputed to her in the final judgment of divorce.


I took the 'new' numbers, [$1000] per week for [defendant] and $100,000 per year for [plaintiff], and used the child support guidelines work sheet attached to determine what support [defendant] requires to maintain the [$5000] stipulated [marital] life style. [$5000] per month translates to [$1162] per week. Assuming 4.3 weeks per month. As the attached sheet makes clear, she still needs $600 per week to bring net income to a level to sustain the [$5000] stipulated [marital] lifestyle.


. . . I decline to modify the spousal support based upon the defendant's increased income where the proven financials show that she needs the agreed-upon spousal support to maintain the marital lifestyle. Plaintiff has not proven that his income situation has changed. Accordingly, the motion to modify support is denied. The attached sheet calls for [thirty-nine dollars] per week in child support. That as well will be the order of the court.


Plaintiff has significant arrearages. Accordingly, the stay on enforcement is lifted. He is to pay [$5000] towards arrears owed before May 15, 2013.

On appeal, plaintiff argues that the trial court erred by denying his petition for modification. He specifically contends that his $31,200 annual support obligation should be altered to reflect the parties' changed circumstances. Plaintiff argues that at the time the JOD was entered, his imputed income was $100,000 and defendant's was $32,500, but that since then his income has fallen to $41,000 while defendant's has risen to $51,430.

The scope of appellate review of the Family Part's factfinding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "We grant substantial deference to a trial court's findings of facts and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

A court may modify support upon a showing of "changed circumstances," including an "increase or decrease in the supporting spouse's income," and "subsequent employment by the dependent spouse." Lepis v. Lepis, 83 N.J. 139, 151 (1980). However, as the party seeking modification, plaintiff has the burden of proof. See Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). Absent an abuse of discretion, we will not disturb the Family Part's determination of whether changed circumstances have endured long enough to warrant modification of a support obligation. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

Given our standard of review, we are satisfied with the judge's conclusion that plaintiff failed to meet his burden of demonstrating the existence of sufficient changed circumstances to warrant modification. As an initial matter, defendant's 2011 personal tax return lists an adjusted gross income of more than $115,000, exceeding defendant's $100,000 stipulated income under the PSA. Plaintiff presented only limited documentary evidence of his decreased income for 2010 and 2012. For 2010, he introduced a two-year comparison worksheet for his business indicating that it had an income of $24,592. For 2012, he introduced an accountant's compilation report indicating a business income of $40,427 for 2012, but that report stated it made no "assurance that there are no material modifications that should be made" to the figures therein. Plaintiff is also self-employed. We have previously stated that

[w]e . . . reject [the] argument that a lesser period of decreased income should constitute a temporary change when the obligor is self-employed. We reject this contention because it is the self-employed obligor who is in a better position to present an unrealistic picture of his or her actual income than a W-2 earner. In light of this self-evident fact, it would seem, as a general proposition, that what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor.


[Larbig, supra, 384 N.J. Super. at 23.]

We conclude it was not an abuse of discretion for the judge to refuse to modify plaintiff's support obligations under these circumstances. Ibid.

Even though the judge disagreed that plaintiff had demonstrated decreased income, he found defendant's income had risen. He recalculated the support obligations to maintain the stipulated $5000-per-month marital lifestyle. He completed the child support guidelines worksheet, showing child support should be thirty-nine dollars per week. Plaintiff has provided no credible reason for us to question the judge's calculations of alimony or child support.