LAMONT D. STEPHENS v. IVONNE PICKETT

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5240-15T2

LAMONT D. STEPHENS,

        Plaintiff-Respondent,

v.

IVONNE PICKETT,

        Defendant-Appellant.

______________________________________________

              Argued November 27, 2017 – Decided December 14, 2017

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Family Division, Chancery Part, Burlington
              County, Docket No. FD-03-0033-08.

              Mark J. Molz argued the cause for appellant.

              Lamont Stephens, respondent, argued the
              cause pro se.

PER CURIAM

        Defendant Ivonne Pickett (mother) appeals from a June 15,

2016 order reducing plaintiff Lamont D. Stephens' (father) child

support obligation from $230 per week to $105 per week.                  We

reverse.
                                 I

     We glean the following from the record.   The parties are

the parents of twins, presently twelve years of age.    The mother

is the primary caretaker.    Before 2016, the court entered an

order directing the father to pay the mother $230 per week in

child support.    Neither party provided the date or a copy of

this order.

     On May 13, 2016, the father was laid off from his job as a

video editor and, on or about the same day, filed a complaint

under the non-dissolution or FD docket1 requesting a reduction in

child support because of what he perceived to be a change in his

circumstances.    There is a question of fact whether the court

staff mailed to the mother not only a copy of the father's

complaint, but also the attachments to the complaint.    The

attachments consisted of a copy of the father's case information

statement (CIS), 2015 federal and state income tax returns, and

three paystubs.

     In a certification submitted in support of his request to

reduce child support, the father stated he worked as a personal


1
  The parties were never married to each other. The non-
dissolution or FD docket provides a mechanism for parents who
never were married to each other to obtain relief from the court
on matters pertaining to custody, parenting time, paternity, and
child support. R.K. v. D.L., 
434 N.J. Super. 113, 131 (App. Div.
2014).
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trainer in 2015 but, because business was slow, earned only

$20,000 that year.   Toward the end of November, he obtained a

position as a video editor, earning $15 per hour or $31,200 per

year, although we note one of the paystubs he attached to his

complaint indicated he was earning $38,340.64 per year.   The

father stated he has a Bachelor of Fine Arts degree, but claimed

he was not suitable for any jobs outside of -- and there were

few jobs available within -- the fine arts fields.

      The mother did not submit a certification but appeared for

the hearing.   She testified she did not receive either the

father's complaint or the documents that had been attached to

it.   She explained that, before the hearing, she went to the

courthouse to get a copy of these documents, but was informed

the file could not be located.   At the hearing, she requested an

adjournment so she could obtain such documents and prepare for

the hearing, but the court denied her request.

      During the hearing, the court asked the father if he were

"capable" of earning $500 per week.   He admitted he was, but no

evidence about the father's ability to earn income or what he

had been earning when previously ordered to pay $230 per week

was adduced.   Without providing any analysis, the court then

imputed $500 per week in income to the father.   The court used

this latter figure and the mother’s actual income to calculate
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the father's child support obligation under the Child Support

Guidelines, and found his obligation to pay child support was

$105 per week.

                                II

    On appeal, the mother's principal argument is the father

failed to show he experienced a change of circumstance to

warrant reducing his child support obligation below $230 per

week.   She also contends the court erred by failing to adjourn

the hearing so she could obtain the subject documents to

properly prepare for the hearing.

    When we "review[] 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)).    Child support

orders are subject to modification pursuant to 
N.J.S.A. 2A:34-23

upon a showing of changed circumstances.   See Lepis v. Lepis, 
83 N.J. 139, 157 (1980).   The party seeking a modification bears

the burden of showing there has been a change of circumstance

warranting an alteration of the prior order.   Id. at 157.

    Significant changes in the income or earning capacity of

either parent may result in a finding of changed circumstances.

Colca v. Anson, 
413 N.J. Super. 405, 415-16 (App. Div. 2010).
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However, "[c]ourts have consistently rejected requests for

modification based on circumstances which are only temporary

. . . ."   Lepis, 
83 N.J. at 151 (1980) (citing Bonanno v.

Bonanno, 
4 N.J. 268, 275 (1950)).    Current earnings have never

been viewed as "the sole criterion [upon which] to establish a

party's obligation for support."    Weitzman v. Weitzman, 
228 N.J.

Super. 346, 354 (App. Div. 1988) (internal citation omitted).

    "[A] court 'has every right to appraise realistically [a

parent’s] potential earning power.'"    Ibid. (quoting Mowery v.

Mowery, 
38 N.J. Super. 92, 102 (App. Div. 1955).     An obligor

cannot successfully show a change in circumstances due to a loss

in income unless he also demonstrates he made a concerted effort

to find work at comparable pay.     Storey v. Storey, 
373 N.J.

Super. 464, 472 (App. Div. 2004); Dorfman v. Dorfman, 
315 N.J.

Super. 511, 517 (App. Div. 1998).

    In addition, "the changed-circumstances determination must

be made by comparing the parties' financial circumstances at the

time the motion for relief is made with the circumstances which

formed the basis for the last order fixing support obligations."

Beck v. Beck, 
239 N.J. Super. 183, 190 (App. Div. 1990).

Ascertaining whether there has been a change in circumstances

"necessarily entails knowing the starting point before the

change, that is, the point from which the change can be
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measured."   Foust v. Glaser, 
340 N.J. Super. 312, 316 (App. Div.

2001).

    Applying these principles here, we conclude the judge

mistakenly exercised his discretion when he granted the father's

motion to modify his support obligations.    First, the judge

failed to grant the mother an adjournment to provide her an

opportunity to examine the father's financial documents and

prepare for the hearing.   An adjournment would not have

prejudiced the father and would have given the mother the

ability to review the subject documents.    Second, we note the

judge did not make any findings of fact and conclusions of law

as required by Rule 1:7-4(a).

    Third, and most important, the father did not make a

prima facie showing of changed circumstances.   At the outset, we

note he failed to provide a copy of the order directing he pay

$230 per week and evidence of what he had been earning when such

order was entered.   Although there appears to be no question he

was laid off in May 2016, there is no evidence of the effort he

made to find another position in which he could earn the same or

close to what he had been earning at the time the previous order

was entered.

    Instead, as soon as he was laid off, the father immediately

filed a motion to reduce his child support obligation.     There
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was no reason to conclude his circumstances were anything but

temporary.

    Because of the deficiencies in his proofs, the court erred

when it reduced the father's child support obligation.   The

father failed to establish there was a change in circumstances

as a result of losing his job to justify a reduction in his

child support obligation.   Storey, 
373 N.J. Super. at 472.

Accordingly, we reverse the June 15, 2016 order.   The father is

not, however, precluded from submitting another application to

reduce child support.

    Reversed.




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