PHILIPPA JAMES-MBADUGHA v. DAMIAN JAMES MBADUGHA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04585-12T3

PHILIPPA JAMES-MBADUGHA n/k/a

PHILIPPA AGU,

Plaintiff-Respondent,

v.

DAMIAN JAMES MBADUGHA,

Defendant-Appellant.

________________________________

October 8, 2014

Submitted September 16, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-881-13.

Jacobowitz and Defino, P.C., attorneys for appellant (Benjamin M. Hoffman, on the brief).

Lomberg and Del Vescovo, L.L.C., attorneys for respondent (Francine Del Vescovo, on the brief).

PER CURIAM

Defendant Damian Mbadugha appeals from a May 3, 2013 post-judgment order denying his motion to both vacate a June 22, 2012 child support order and modify his child support obligation based on changed circumstances. The order also denied his request to share transportation costs for the children to travel from Florida to New Jersey for parenting time with defendant. Because defendant did not timely appeal from the June 22 order, did not present sufficient evidence of changed circumstances and failed to demonstrate an abuse of discretion in the denial of a division of transportation costs, we affirm in all respects.

The parties were married in September 1996 and divorced in 2001. They entered into a Marital Settlement Agreement (MSA), which provided that defendant would contribute $500 per month for the support of the two children of the marriage. Shortly after the divorce, the parties reconciled but did not remarry. Two more children, twins, were born in 2003.

In 2009 the relationship deteriorated again. After plaintiff Philippa Agu moved to Florida with the children, defendant filed an order to show cause. He testified at an emergent hearing that plaintiff had absconded to Florida without his consent. After the children were returned to New Jersey by Florida authorities, the family court heard the testimony of plaintiff and the children and found that defendant had actually consented to the move.

Later, plaintiff filed a request for an increase in child support and the court requested financial information from both parties. On January 18, 2012, the family court granted plaintiff's request for increased child support because of the passage of more than ten years and the birth of two additional children since the 2001 MSA. An appropriate child support award could not be calculated, however, because defendant failed to provide the necessary financial information. The court ordered defendant to provide financial documents within two weeks. Ultimately, on June 22, 2012, the court found the financial information provided by defendant to be not credible. In its statement of reasons, the court indicated that "after reviewing defendant's financial information and defendant's efforts to meet his obligation, the [c]ourt is not satisfied with defendant's proofs."

The court found unreliable defendant's income tax returns listing his income as $6575, -$16,413, $2757, and $5522, from 2008 to 2011 respectively. His income resulted primarily from rental income and business losses. The court noted that these filings were contradicted by plaintiff's credible assertions that defendant owned a home valued at $599,000 in Belmar, that he had paid $1,000 per month for child support in past years, and that defendant "travels internationally on a frequent basis." As a result, the court imputed income to defendant in the amount of $128,000, which it indicated was "consistent with his prior earnings as argued by plaintiff." After applying the Child Support Guidelines, Rule 5:6A, the court set his child support obligation at $432 per week (including his portion of $424 monthly health insurance premiums for the children), with an additional $35 per week toward "significant arrears[.]" The court directed that the net proceeds from the sale of his two investment properties be used to satisfy his child support arrears. Defendant did not file a motion for reconsideration or appeal from the June 22, 2012 order.

Defendant subsequently filed a motion to modify this order and re-establish child support at the MSA $500 per month level. A tentative decision denying this application was issued by another judge on October 5, 2012.1 Defendant did not appeal.

In March 2013 defendant filed another motion seeking to vacate the June 22, 2012 order and also seeking to reduce his child support obligation based on changed circumstances. In addition, he asked for an order requiring plaintiff to share equally the transportation costs from Florida to New Jersey for the children to spend time with him. The denial of all aspects of this application by a third judge was memorialized in the May 3, 2013 order from which defendant now appeals.

Defendant argues that the court erred in denying his motion to vacate the June 22, 2012 child support order based on Rule 4:50-1(c) and (f) because the order was based on fraudulent information provided by plaintiff and because enforcing the order would be fundamentally unfair to defendant. Defendant argues that his child support obligation should be reduced because $128,000 was wrongly imputed as income to him. Defendant claims he is actually earning less than $10,000 per year as a limousine driver and an additional $6,000 per year as a financial advisor.

Rule 4:50-1 provides in pertinent part,

[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons

. . . .

(c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party[.]

Types of fraud sufficient to obtain relief include perjured statements or testimony. State by Comm'r of Transp. v. Probasco, 114 N.J. Super. 546, 549 (App. Div. 1970).

Perjured testimony that warrants disturbance of a final judgment must be shown by clear, convincing, and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. Further, a party seeking to be relieved from the judgment must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial or that for other good reason the failure to use diligence is in all the circumstances not a bar to relief.

[Ibid. (emphasis added) (quoting Shammas v. Shammas, 9 N.J. 321, 330 (1952)), aff d o.b., 58 N.J. 372 (1971).]

A trial court's grant or denial of relief from judgment under Rule 4:50-1 "warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion occurs if a decision was "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123-24 (2007) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

There is no evidence, and certainly not the clear and convincing evidence required by Rule 4:50-1 and Probasco, supra, 114 N.J. Super. at 549, that plaintiff committed fraud on the court by alleging that defendant's income was higher than that reflected on defendant's income tax returns. As plaintiff points out, defendant has been found to be incredible on multiple occasions by different judges.

Defendant next argues that the court erred in failing to vacate the June 22, 2012 order under Rule 4:50-1(f) because the order is unfair, inequitable, and unconscionable. Defendant argues that it was unfair for the court to impute an income of $128,000 to him. He claims he cannot afford the $467 per week child support obligation based on his current earnings.

Courts have the authority to grant relief under subsection (f) where it is "necessary to achieve a fair and just result." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 122 (1977). However, "because of the importance in the finality of judgments, relief under subsection (f) is available only when 'truly exceptional circumstances are present.'" In re Guardianship of J.N.H., 172 N.J. 440, 473 (2002) (emphasis added) (quoting Housing Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994)). To obtain relief under Rule 4:50-1(f), an applicant must show that enforcement of the order would be unjust, oppressive, or inequitable. See U.S. Bank Nat'l Ass'n v. Guillaume, supra, 209 N.J. at 484.

Defendant did not appeal from the June 22, 2012 order, but over eight months later sought to vacate the order because its enforcement would be unjust. The family court perhaps could have better articulated its mathematical basis for imputing $128,000 to defendant as his yearly income, using the guidelines outlined in Caplan v. Caplan, 182 N.J. 250, 270 (2005). Nonetheless, Rule 4:50-1 is not a means to correct imperfect decisions, which must be appealed within forty-five days. See DiPietro v. DiPietro, 193 N.J. Super. 533, 539 (App. Div. 1984) (stating that a "trial error" may not be converted into a "mistake" under Rule 4:50-1(a) to expand the timeframe in which to seek relief).

The June 22, 2012 order is not unjust, oppressive, or inequitable. Defendant has not demonstrated any exceptional circumstances. Previously, when referring to his international travel, defendant indicated that "the trip to China was taken in 2010 and cost less than $1,200 and the trip to Africa costs also less than $1,200 . . . I have requested my credit card statements to verify the costs associated with same." Despite this reference to credit card statements, the receipt for the flight to China indicates that $924.10 was paid in cash. Thus defendant did not credibly explain his ability to travel internationally.

Defendant certified to the trial court that in addition to being a financial advisor, he worked for a limousine company making approximately $240 every two weeks. A later certification indicated that he worked for a second limousine company as well, and earned $700 in his first pay period. Defendant has an M.B.A. and is an entrepreneur and financial advisor. The record supports the finding that defendant was either not being candid with the court with respect to his finances or was willfully underemployed. Defendant was thus unable to meet the high standard for relief set forth in Rule 4:50-1.

Defendant next argues that the court erred in denying his application for a reduction in his child support obligation based on changed circumstances. Child support orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Support orders define only the present obligations of the parent and those duties are always subject to review and modification on a showing of "changed circumstances." Chalmers v. Chalmers, 65 N.J. 186, 192 (1974).

The Lepis decision laid out the procedure for modification motions. Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). The party seeking modification bears the burden of proving "changed circumstances" that would warrant relief from the relevant support provisions. Id. at 157 (citation omitted). The decision to grant or deny a modification of child support is left to the sound exercise of discretion of the family part judge. J.B. v. W.B., 215 N.J. 305, 325-26 (2013). Furthermore, "because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

As we have discussed, defendant's submissions were not credible. The motion court did not abuse its discretion in denying defendant's application for a modification based on changed circumstances either.

Lastly, defendant argues that the court erred in denying his request to have plaintiff share equally in the transportation costs with respect to defendant's parenting time with the children. Defendant argues that there was no credible evidence demonstrating that plaintiff was financially struggling and that she should be required to contribute to the costs of transporting the children from Florida to New Jersey. Defendant asserts that it was plaintiff who relocated to Florida and therefore plaintiff should contribute to the transportation costs.

In its statement of reasons, the court explained that "plaintiff has certified and it is uncontradicted that she is struggling to provide for the parties' [four] children and that she is unable to share in the costs of their transportation for the defendant's parenting time." The court did not abuse its discretion in denying this request, especially in light of the significant child support arrears that had accumulated.

If defendant provides consistent, credible proofs of his current financial situation, demonstrating that he is unable to earn the $128,000 imputed to him, he would be entitled to a plenary hearing based on changed circumstances. His prior lack of credibility is not a permanent disqualification. As long as he relies primarily on documents and certifications that were found incredible in the past, however, he will have a difficult time demonstrating his entitlement to shared transportation costs or a hearing that could result in a downward modification of child support.

Affirmed.

1 We were not furnished with a final order in connection with this decision.