TINA DISESSO v. NICHOLAS DISESSO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TINA DISESSO,

Plaintiff-Appellant,

v.

NICHOLAS DISESSO,

Defendant-Respondent.

_____________________________

February 28, 2014

Submitted January 29, 2014 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, Docket No. FM-07-15-09.

Tina Disesso, appellant pro se (Erica L. Fields, on the brief).

Nicholas M. Disesso, respondent pro se.

PER CURIAM

Plaintiff Tina Disesso appeals from a post-judgment order entered on defendant Nicholas Disesso's cross-motion to modify his alimony obligation and emancipate the parties' son and daughter. The judge emancipated the son, modified child support to reflect the emancipation of one child, imputed income at the minimum-wage rate to plaintiff and reduced defendant's alimony obligation.1

On appeal, plaintiff contends that: disputed facts pertinent to the son's emancipation required a hearing; the judge misapplied the law of emancipation and failed to consider a relevant provision of the parties' property settlement agreement (PSA), and that the judge erred in imputing income to plaintiff. Because a dispute of material facts required an evidentiary hearing on emancipation, we reverse the provision of the order emancipating the son and remand for additional discovery and an evidentiary hearing. With respect to the reduction of alimony, we conclude that defendant provided insufficient information to establish a prima facie case as required by Lepis v. Lepis, 83 N.J. 139 (1980). Consequently, we vacate the provision of the order modifying alimony.

Plaintiff was born in 1949, and defendant was born in 1946. They married in 1982 and have two children, a son born in 1987 and a daughter born in 1990. Their final judgment of divorce was entered on March 3, 2004, and it incorporates their PSA, which addresses alimony, emancipation of their children and child support.

The PSA provides for permanent alimony and for child support. Defendant agreed to pay alimony of $4000 per month and to continue those monthly payments until either he or plaintiff died or plaintiff remarried. He also agreed to pay $268 weekly for the support of his children.

The PSA reflects the parties' recognition of their son's special educational needs and their concern about his future. It includes a provision acknowledging his needs and their potential impact on his ability to receive an education. And it calls for the parties to share, in proportion to their incomes, the cost of any legal proceedings necessary for him to obtain essential education or training. In addition, they agreed to reserve $20,000 from the sale of their marital residence for a residential placement that might be necessary.

The parties also included a special standard for their son's emancipation in their PSA. Specifically, they agreed to emancipate him "only when he [was] able to live independently and work full-time to support himself." In contrast, their agreement provided for emancipation of their daughter under a very different standard one commonly found in PSAs. That provision calls for their daughter's emancipation upon her: reaching the age of eighteen or completing four continuous academic years of college education, whichever was later; marriage; having a permanent residence someplace other than plaintiff's home; death, or her entry into the armed forces. They agreed to a deadline for their daughter's completion of college her twenty-third birthday.

The record includes little competent evidence concerning the current condition of the parties' son. There was no dispute that he was once enrolled in a cosmetology program, which he did not complete, and that later, in 2011, he operated a landscaping business for a brief period. Beyond that, there was no information about the young man's progress toward independent living or self-support. Plaintiff certified that their son was receiving Social Security benefits, but the record includes no documentary evidence supporting that assertion or establishing whether the benefits were based on his need or disability.

The court heard oral argument and issued its decision resolving all issues on May 14, 2012. At that time, defendant had a pending request to enforce an order of December 9, 2011 directing plaintiff to produce "documents evidencing Government benefits" paid to plaintiff and the parties' son. During oral argument plaintiff's attorney asked for an opportunity to present documentation of the disability determinations, which plaintiff had indicated were under review. Plaintiff had, however, produced her 2010 tax return. On that return, she listed the parties' son as her dependent.

The trial court found that the parties' son was operating a business as of November 1, 2011, which is when defendant filed his motion for emancipation. The court determined that the son "was running a business, and he was capable at that point in time of moving beyond the sphere of influence of his parents." On that ground alone, the trial court emancipated the parties' son. The order, entered on May 14, 2012, provides for emancipation retroactive to November 1, 2011.

We reverse and vacate that provision of the order. The standard for emancipation adopted by the parties in their PSA, which focuses on their child's capacity for independent living and self-support, is consistent with legal standard, which provides for emancipation when "the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). Where the propriety of emancipation is disputed, the party seeking that relief has the burden of establishing these fact-sensitive grounds for emancipation. Ibid.

In this case, the son's age and his ability to operate a business for a time was arguably adequate to warrant discovery and further inquiry. Conversely, the terms of the PSA addressing the son's needs and plaintiff's assertions about his limited success in that business and in cosmetology school and about his receipt of Social Security benefits called his capacity for independent living and self-support into question.

In light of the disputed and vague facts material to emancipation, the trial court should have followed the standard and well-established procedural guidelines applicable where there is a prima facie showing of changed circumstances relevant to modification of child support. See Lepis, supra, 83 N.J. at 157-59. We recognize that the issue of emancipation poses a question involving factual issues quite different than those pertinent to modification of alimony, which depends upon material changes in the former spouses' relative needs and ability to support themselves. Nevertheless, the procedures outlined in Lepis are well-suited to addressing questions of the sort raised in this case about emancipation, where the parties agreed that their son's ability "to live independently and work full-time to support himself," rather than his age, should control.

To resolve the questions material to emancipation, the court could and should have first required the parties to exchange all information relevant to that inquiry and accessible to them. See R. 5:5-1. Upon completion of discovery, the court could and should have, as Lepis suggests, "decide[d] whether to hold a hearing," which would not be necessary if "the material facts [were] not in genuine dispute." 83 N.J. at 158-59.

Because these procedures were not followed and the record is inadequate to permit findings of the essential facts, we vacate the provision of the May 14, 2012 order emancipating the parties' son and remand for further proceedings on that issue in conformity with the procedural guidelines enunciated in Lepis and discussed above. Further, because the trial court's only reason for reducing defendant's child support obligation was the emancipation, we also vacate the provision of the order reducing child support effective November 1, 2011.

With emancipation and child support resolved, we turn to consider the reduction of alimony and imputation of income ordered by the trial court. At present, defendant is about sixty-seven years old and plaintiff is about sixty-five. Defendant sought elimination or a reduction of the alimony obligation set forth in the PSA on the ground that he could no longer pay alimony at the rate of $4000 per month. To support his allegation of a change in circumstances based on his income, defendant presented his federal and state income tax returns for 2010, a current Case Information Statement (CIS) and the CIS he filed in the divorce proceeding in November 2003.

Defendant's 2010 federal return reflects wages, salaries and tips in the amount of $131,209. That amount is greater than the gross income for 2002 that defendant reported in his 2003 CIS, which was $110,536. It is also greater than the gross income for defendant that the parties used to calculate child support in 2003, which was $2308 weekly, or $120,016 annually.

We recognize that defendant's 2003 and 2011 CISs list partial earnings for those years. But those partial income figures do not permit extrapolation or estimation of his annual income in those years. That is so because in a certification filed on April 12, 2012, defendant certified that he "work[s] on a 100% commission basis" and because there is nothing in the record that permits an inference that defendant's commissions were earned at the same rate every week or month.

Defendant also urged the court to impute income to plaintiff. Plaintiff opposed imputation on the ground that she was unable to work. She asserted that she had been receiving Social Security disability benefits and was now receiving means based Social Security retirement benefits. As noted above, however, plaintiff did not present any documentary evidence supporting her assertions about Social Security benefits. The only income she reported on her 2010 tax return was her alimony and $1200 she was paid for participating in a study.

On that record, the trial court imputed income in the amount of the minimum-wage income to plaintiff and reduced defendant's alimony from $4000 monthly to $2800 monthly.

Our review of the record convinces us that the court erred in determining that the defendant established even a prima facie case for modification of permanent alimony. As the Supreme Court explained in Lepis, "[w]hen the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." 83 N.J. at 157. There was no evidence permitting an inference that defendant's income declined at all.

Had the trial court followed the procedural guidelines set forth in Lepis, which we discussed above, the court would have denied defendant's application. In short, defendant's evidence was insufficient to warrant any discovery of or inquiry into plaintiff's financial status. Id. at 157. Accordingly, we vacate the provisions of the order reducing alimony retroactive to November 1, 2011.

To avoid any potential confusion we summarize what this opinion requires on remand.

A. First, the court should enter an order vacating the following provisions of the May 14, 2012 order: paragraph 1, emancipating the parties' son; paragraph 2, modifying alimony; paragraph 4, modifying child support; and paragraph 5, which directs probation to adjust defendant's arrears in light of the modifications of child support and alimony directed. The order entered on remand should reinstate the original alimony and child support amounts, pending the court's resolution of the question of emancipation and any resulting modification of child support.

B. Second, with respect to emancipation, the court shall reopen the proceedings, direct discovery and then determine, on proper submissions, whether an evidentiary hearing is necessary. For the sake of clarity, we reiterate that emancipation would require modification of child support retroactive to the date of emancipation to reflect the support of one child. Mahoney v. Pennell, 285 N.J. Super. 638, 643-44 (App. Div. 1995).2

Reversed and remanded for entry of an order in conformity with this opinion and for further proceedings in conformity with this opinion.3

We do not retain jurisdiction.

1 Defendant filed the cross-motion in response to plaintiff's motion to enforce defendant's support obligation. Defendant also moved for an order emancipating the parties' daughter, but subsequently withdrew the request. Defendant has not filed a cross-appeal challenging that determination, and it is, therefore, abandoned.

2 It is worth noting that the appendix submitted on this appeal does not include an index that conforms with Rule 2:6-1. That Rule requires an entry for each document included and prohibits duplicate entries. Failure to comply with that Rule is increasingly common and unnecessarily and unjustifiably consumes the time of the members of this court, who must search for essential documents for example, PSAs, CISs, tax returns and child support guidelines work sheets.

3

On January 28, 2014, the day before this case was submitted to this panel for decision, plaintiff filed a motion to file a reply brief. The reply brief she sought to file responds to a motion for reconsideration filed by defendant. On May 2, 2013, another panel of this court granted defendant's motion for reconsideration and gave him leave to file his brief in response to plaintiff's merits brief as if within time. Thus, plaintiff's motion to file a reply was moot when filed, and, for that reason her motion is denied.