MOEMA MIGLIORE v. MARC WIERSUM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MOEMA MIGLIORE,

Plaintiff-Respondent,

v.

MARC WIERSUM,

Defendant-Appellant.

_________________________________________

September 29, 2015

Argued September 16, 2015 Decided

Before Judges Yannotti, St. John and Guadagno.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-000482-07.

Marc Wiersum, appellant, argued the cause pro se.

Moema Migliore, respondent, argued the cause pro se.

PER CURIAM

Defendant Marc Weirsum appeals from an order entered by the Family Part on December 5, 2013, which denied his motion for reconsideration of an order entered by the trial court on August 15, 2013, and denied defendant's motion for a further reduction of his child support obligation. We affirm.

I.

We briefly summarize the pertinent facts and procedural history. The parties had a brief relationship while defendant was working in Brazil, during which time plaintiff became pregnant. The child was born in February 2001. Thereafter, defendant remained for a time in Brazil, and according to plaintiff, defendant paid child support in the amount of $400 per month. At some point, defendant returned to the United States.

In the fall of 2004, plaintiff came to the United States, leaving the child in Brazil with the maternal grandmother. At some point, the child was brought to New York. Plaintiff and the child stayed briefly with defendant. Later, the child was sent to live with the paternal grandparents in Wisconsin.

In August 2005, the parties entered into a stipulation that was filed in a Wisconsin court. Among other things, the stipulation provided that the parties would have joint legal custody of the child, and defendant's home would be the child's primary residence. In 2006, plaintiff married Anthony Migliore, and the parties agreed to transfer residential custody of the child to plaintiff. She moved with the child to New Jersey. In April 2007, defendant had parenting time for the Easter holiday, but failed to return the child to plaintiff. Plaintiff thereupon filed an order to show cause in the Family Part, seeking the return of the child.

In May 2007, the court ordered defendant to return the child to plaintiff and granted plaintiff temporary physical custody. On September 7, 2007, the court issued an order that required defendant to pay $432 per week in child support, retroactive to May 23, 2007. In calculating child support, the court determined that defendant's annual income was $356,096, which was the amount that he earned in 2006.

In October 2008, defendant filed a motion for a downward modification of his support obligation. On March 20, 2009, a different judge conducted a plenary hearing on the motion and determined that defendant had not met his burden of establishing a permanent substantial change of circumstances for a modification of his support obligation, as required by Lepis v. Lepis, 83 N.J. 139 (1980).

The judge accordingly entered an order dated March 30, 2009, denying defendant's motion. The order provided, however, that, effective March 20, 2009, defendant would only be required to pay child support in the amount of $204 per week, and until December 31, 2009, plaintiff could not enforce payment of the balance, although arrears on the full $432 per week would accrue. It appears that defendant subsequently secured employment at a hedge fund and was paid a salary of $80,000 per year.

In June 2010, defendant filed another motion for a downward modification of his support obligation. On August 9, 2010, a different judge entered an order granting the motion. The judge found that defendant had provided sufficient evidence to show that he was not able to earn income comparable to the income he previously earned, due to the then-current economic conditions.

The judge determined that defendant had met his burden of establishing a substantial prima facie change of circumstances, and imputed to him income of $80,000 per year. The judge stated that this amount was a "fair and accurate" assessment of defendant's earning potential. The judge ruled that defendant's support obligation would be $180 per week, and he was ordered to pay an additional $45 per week towards his arrears, retroactive to June 7, 2010.

In September 2012, defendant filed an application seeking a further reduction of his support obligation. He asserted that the amount of his imputed income should be reduced from $80,000 to $40,000 per year. The judge entered an order dated December 5, 2012, granting the motion in part. The judge imputed defendant's income at $60,000, and determined that his weekly child support obligation would be $151 per week, effective September 27, 2012.

In the statement of reasons appended to the order, the judge noted that defendant had been unemployed but planned to begin working as a retail financial advisor in 2013 at a "guaranteed income" of $40,000. Defendant had apparently certified that his financial resources were completely depleted, and he was living with his mother. The judge found that defendant could earn more than $40,000, but took defendant's "current circumstances" into account in determining the amount of income that should be imputed to him.

Defendant asserts that in mid-December 2012, he mailed a motion seeking reconsideration of the December 5, 2012 order to the trial court. The record does not support that assertion. Rather, the record indicates that defendant submitted his reconsideration motion to the court on January 22, 2013, the date it was marked "received." It appears that the court refused to file the motion at that time, citing certain deficiencies in the papers.

Defendant apparently corrected those deficiencies and the court filed the motion sometime later. Plaintiff opposed the motion, and filed a cross-motion seeking certain relief, including information concerning defendant's earnings. In a certification submitted in support of her cross-motion, plaintiff stated that defendant had become employed by a bank in Florida, and was earning in excess of $140,000 per year.

The judge entered an order on August 15, 2013, which denied defendant's motion for reconsideration with prejudice, finding that defendant's claims were "meritless" and "nothing more than [an] attempt to relitigate issues that have long been decided." Ruling on plaintiff's cross-motion, the judge ordered defendant to authorize plaintiff to obtain his income tax return for 2012 and to verify his wages with the Social Security Administration. The order stated that, if defendant failed to comply with either of these directives, his annual income would be imputed at $100,000.

The court's August 15, 2013 order also directed that a hearing officer conduct a hearing in the matter and recalculate defendant's child support obligation, based on his newly-found employment in Florida. The order required defendant to provide the hearing officer with certain financial information concerning his income, including pay stubs from his new employer.

In the statement appended to the order, the judge noted that there had been a change of circumstances, since defendant had become employed after having been allegedly unemployed for the preceding three years. The judge wrote that he did not know the amount of defendant's income, but "it may be higher than his prior imputed income of $80,000[,]" in light of his education, background in finance, and past income.

The hearing officer considered the matter on October 4, 2013. At that proceeding, defendant stated that he was unemployed. He did not, however, submit the financial information the judge had ordered him to provide. The hearing officer noted that, because defendant had not provided the required information, defendant's income was to be imputed at $100,000 per year, as provided by the court's order. The hearing officer referred the matter to the judge for further action, and calculated defendant's child support obligation at $326 per week, based on imputed annual gross income of $100,000.

A different judge entered an order dated October 4, 2013, which directed defendant to pay child support of $311 per week, effective June 11, 2013. The order stated that the court had deviated from the child support guidelines for "good cause as determined by the court." On October 15, 2013, the court entered another order fixing defendant's child support obligation at $311 per week.

The following day, another judge scheduled a hearing on yet another motion by defendant for downward modification of his support obligation. The judge ordered defendant to bring proof of his income, including his most recent federal income tax return, to the hearing. The judge considered the motion on December 5, 2013.

At that proceeding, the judge indicated that defendant was seeking a reduction of his support obligation because the August 15, 2013 order was based on an excessive amount of imputed annual income. Defendant told the judge that the August 15, 2013 order was based on information that should not have been considered. Defendant said that plaintiff had given the court the erroneous impression that he was employed and earning more than $100,000 per year.

Defendant also asked the judge to again consider the reconsideration motion he purportedly filed in January 2013. Defendant stated that he was employed in a "small job" that would eventually pay him about $3,000 per month. According to defendant, he was writing economic commentary on the internet. He said he was staying temporarily with a "friend" who was "helping [him] out[,]," and that he would be moving to a homeless shelter and receiving public support.

The judge denied the motion noting that defendant did not file a timely motion for reconsideration of the court's December 5, 2012 order. The judge stated that even if the motion had been timely filed, defendant had not provided the information necessary for reconsideration of the earlier order. The judge found that defendant was merely seeking to re-litigate issues that had been previously decided by the court.

The judge also found that there was no basis to reduce defendant's child support obligation. The judge noted that defendant had a MBA in finance from the University of Chicago, and claimed that since 2008, he had been unable to obtain suitable employment in the financial industry. The judge refused to modify the $311 per week child support obligation, or the arrears that had accrued based on the court's prior orders. The judge memorialized his decision in an order dated December 5, 2013. This appeal followed.

On appeal, defendant argues that: (1) plaintiff's statements to the trial court were false; (2) the court's findings of fact did not meet the requirements of Rule 1:7-4; (3) the court failed to provide adequate findings of fact for its order or decisions; (4) the court did not treat defendant "equitably"; (5) the court's orders are unjust and do not comply with the applicable statutes and guidelines; (6) equitable distribution was not "[s]ufficiently [o]bserved" by the court; (7) the court imputed to defendant an excessive amount of income, in light of the sporadic nature of his employment and income; (8) plaintiff has not used the child support payments "[a]ppropriately"; (9) Rule 4:49-2 provides defendant with a legal basis to amend the prior orders; (10) the court erred by failing to correct certain clerical orders; (11) the court inadvertently barred defendant from providing oral argument on June 20, 2013, on his motion for reconsideration; (12) plaintiff made materially "[p]erjurous [s]tatements" regarding her education and income; and (13) the lower court "[e]xhibited a [p]attern of [i]nsufficient" fact-finding.

II.

Defendant argues that the trial court erred by refusing to consider the motion defendant purportedly filed in January 2013, seeking reconsideration of the December 5, 2012 order. We disagree.

A motion for reconsideration pursuant to Rule 4:49-2 is committed to "'the sound discretion of the [c]ourt, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is warranted only in cases in which the court "'has expressed its decision based upon a palpably incorrect or irrational basis,'" or "'did not consider, or failed to appreciate the significance of probative, competent evidence[.]'" Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401-02).

Under Rule 4:49-2, a motion for reconsideration must be filed within twenty days after service of the judgment or order at issue. Here, defendant submitted a motion for reconsideration of the December 5, 2012 order on January 22, 2013, but it was not accepted for filing by the court due to certain deficiencies. The motion was not filed until sometime later.1 As noted, on August 15, 2013, the court denied defendant's motion for reconsideration as untimely.

Defendant did not file an appeal from the December 5, 2012 order or the August 15, 2013 order. Instead, defendant filed yet another motion, attempting to have a different judge consider the untimely motion. As the judge indicated in his August 15, 2013 order, defendant was improperly seeking to litigate issues that had been conclusively resolved by the court's prior orders.

We are convinced that the court did not err by refusing to consider the untimely motion. Since defendant did not file a timely motion to reconsider the December 5, 2012 order, and defendant did not file an appeal from that order, the decisions memorialized by the December 5, 2012 order were final and not subject to further review by appeal or reconsideration.

III.

Next, defendant argues that the trial court erroneously denied his latest motion for a further reduction of his child support obligation. Defendant argues that the court erred by establishing child support in the amount of $311 per week. Defendant asserts that child support was based upon an excessive amount of imputed income, since he purportedly established that he had not been able to earn the income he had previously earned in the financial services industry.

"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." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2012); Loro v. Del Colliano, 354 N.J. Super. 212, 220 (App. Div.), certif. denied, 174 N.J. 544 (2002)). "'The trial court has substantial discretion in making a child support award. If consistent with the law, such an 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. (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).

We are convinced that the judge correctly found that defendant had not established any basis for a further reduction of his support obligation. As the judge pointed out in his decision on the record, defendant has impressive education credentials, including a MBA from the University of Chicago. He also has experience working in the financial services industry.

In 2006, defendant earned $345,000 per year. Furthermore, despite periods of unemployment that began in 2008, defendant was able to secure a high-level position with a Florida bank in 2013 that defendant concedes had a salary of $100,000 per year. As noted, plaintiff claims the position earned in excess of $140,000.

Although defendant held the position at the Florida bank for a brief period of time, the fact that he secured a position which paid at least $100,000 per year fully supports the court's decision to impute approximately that amount of income to defendant. See Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (noting that a party's potential earning capacity should be considered in determining the party's support obligation). Furthermore, the record shows that defendant failed to present the financial documentation required by the court's August 15, 2013 order. As we have explained, the order allowed the court to impute income to defendant of $100,000 if he failed to provide the information required.

We are therefore convinced that in light of defendant's education, work experience and prior earnings history, the amount of income imputed to defendant and the resulting order that he pay child support of $311 per week was not a mistaken exercise of discretion.

We have considered defendant's other arguments and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Although defendant claims that his motion for reconsideration was successfully filed on February 20, 2013, defendant fails to provide any record of this filing date. Regardless, a February 20, 2013 filing date would be untimely.