NICOLE M. BETZ v. JAMES L. FOTI, III

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4083-16T3

NICOLE M. BETZ,

          Plaintiff-Respondent,

v.

JAMES L. FOTI, III,

     Defendant-Appellant.
__________________________

                    Argued October 17, 2018 – Decided October 30, 2018

                    Before Judges Ostrer and Mayer.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    Docket No. FM-03-0282-16.

                    Jennifer L. Gottschalk argued the cause for appellant.

                    Respondent has not filed a brief.

PER CURIAM
       Defendant appeals from a May 12, 2017 order denying his motion to

modify child support and compelling him to pay counsel fees to plaintiff in the

amount of $3,750. We affirm.

       We briefly summarize the facts. The parties married in May 2007 and had

one child born in 2008.      Plaintiff filed a complaint for divorce in 2015.

According to defendant, his income for the years immediately preceding the

divorce complaint averaged between $25,000 and $29,000 annually. However,

because defendant was delinquent in the payment of accrued child support prior

to the entry of the final judgment of divorce (FJOD), defendant agreed to an

imputed income of $75,000 annually.         Based on the agreed upon imputed

income, defendant's child support obligation was $203 weekly. The family

judge conducted a Harrington1 hearing, confirming the parties reached a binding

oral settlement of their matrimonial issues, including defendant's imputed

income amount.2 The FJOD, dated June 21, 2016, also reflected defendant's

agreement to the imputed income.



1
    Harrington v. Harrington,  281 N.J. Super. 39 (App. Div. 1995).
2
  In or around the time of the FJOD, defendant expressed a desire to fire his
counsel and counsel contemplated withdrawing from the case. Despite
communication difficulties between defendant and his attorney, counsel
continued to represent defendant through the entry of the FJOD.
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      Subsequent to the entry of the FJOD, defendant claimed he only agreed to

the imputed income figure to compensate for unpaid child support during the

nine month period prior to the FJOD. Defendant argued he could not pay weekly

child support in the amount of $203 because he earned less than $30,000

annually.

      Since the entry of the FJOD, defendant filed two motions to reduce his

child support obligation. The first motion was filed on September 16, 2016, just

three months after the FJOD. The second motion, which is the matter on appeal,

was filed on February 27, 2017, only eight months after the FJOD.

      In his second motion to reduce child support, defendant argued he has a

level I autism spectrum disorder and attention deficit hyperactivity disorder,

which impacted his ability to understand the financial responsibilities imposed

under the FJOD.3     In opposition to the motion, plaintiff noted defendant's

medical reports regarding his condition did not indicate defendant lacked the

mental capacity to understand and agree to the imputed income figure.            In

addition, plaintiff contended defendant worked for his family's business and the

imputed income amount considered defendant's receipt of an annual salary, plus



3
  Defendant did not raise these arguments in support of his first motion to reduce
child support.
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additional cash payments from the family business, and other significant

benefits in lieu of cash.

      The judge found defendant failed to make a showing of changed

circumstances warranting a modification of his child support obligation

consistent with Lepis v. Lepis,  83 N.J. 139 (1980). The judge determined the

expert reports regarding defendant's diagnoses expressed impairments in the

area of socialization and communication, and concluded defendant displayed

"symptoms of autism since his early childhood." Because defendant exhibited

"the questioned behavior since his childhood, and that the [medical] evaluation

does not suggest that [d]efendant was unable to appreciate or comprehend the

[c]onsent [o]rder in which he agreed to the imputed an income of $75,000," the

judge denied his motion for a downward modification of child support.

      The judge explained defendant agreed to the imputed income of $75,000,

and did so despite the fact his reported annual gross income was below that

amount. If defendant earned significantly less as of the date of the FJOD, then

defendant had an obligation to provide the discovery requested by plaintiff's

counsel regarding his earnings and other benefits defendant received as an

employee of his family's business. However, defendant refused to provide the

requested financial information. Instead, he agreed to the imputed income rather


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than risk financial scrutiny of his earnings and the earnings of the family

business. The judge found "[d]efendant has still failed to provide the [c]ourt

with any information regarding the [d]efendant's decrease in income, and

whether that decrease was temporary or permanent in nature."           The judge

determined defendant was a salaried employee in his family's business from

1993 until just prior to the date of the FJOD, when defendant's compensation

was changed to commission-based.

      In awarding $3,750 in counsel fees to plaintiff, the judge considered the

matter in accordance with Rule 4:42-9, Rule 5:3-5, and Williams v. Williams,

 59 N.J. 229, 233 (1971). The counsel fee award was based on defendant's failure

to comply with prior court orders, and defendant's "lack of due diligence and

good faith."   The judge's monetary award was approximately twenty-five

percent less than the amount of legal fees requested in plaintiff's counsel's

certification of services.   The judge concluded the award was appropriate

because "plaintiff has had to incur more fee obligations because of [defendant's]

lack of compliance" with prior court orders and the FJOD.

      On appeal, defendant argues the judge mistakenly denied his request to

modify his child support obligation.        In addition, defendant challenges the

$3,750 in attorney's fees awarded to plaintiff.


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      We first consider defendant's claim that the judge erred in denying the

motion to modify child support. We review a trial court's decision to grant or

deny an application to modify child support for abuse of discretion. J.B. v.

W.B.,  215 N.J. 305, 325-26 (2013) (citations omitted). We will not disturb a

trial court's determination "unless it is manifestly unreasonable, arbitrary, or

clearly contrary to reason or to other evidence, or the result of whim or caprice."

Id. at 326 (quoting Jacoby v. Jacoby,  427 N.J. Super. 109, 116 (App. Div.

2012)).

      A parent seeking to modify a child support order must show "changed

circumstances had substantially impaired the [parent's] ability to support himself

or herself." Foust v. Glaser,  340 N.J. Super. 312, 316 (App. Div. 2001) (quoting

Lepis, 83 at 157)). A proper changed circumstances analysis "requires a court

to study the parties' financial condition at the time of the divorce, as well as, at

the time of the application." Deegan v. Deegan,  254 N.J. Super. 350, 355 (App.

Div. 1992). "Courts have consistently rejected requests for modification [of

support obligations] based on circumstances which are only temporary or which

are expected but have not yet occurred." Lepis,  83 N.J. at 151 (citation omitted).

"[S]upport, whether set by court order or agreement, [may] be modified upon a

showing of substantial, non-temporary changes in ability to support oneself or


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pay support." Gordon v. Rozenwald,  380 N.J. Super. 55, 67-68 (App. Div.

2005).

      Based on our review of the record, we discern no basis to disturb the

judge's denial of defendant's request to modify his child support obligation and

award of attorney's fees to plaintiff. In March 2016, defendant agreed to an

imputed annual income of $75,000. On June 7, 2016, the judge conducted a

Harrington hearing on the record, and examined defendant's understanding of

the FJOD, which included defendant's agreed upon imputed income. At the

hearing, defendant stated he was not suffering from any condition that would

impair his ability to understand the terms of the settlement.

      Approximately three months after the Harrington hearing, defendant filed

his first motion to reduce child support. After the court denied the motion,

defendant again sought to reduce his child support payments, eight months after

the FJOD. Between June 2016, when defendant agreed to the imputed income

amount, and May 2017, when defendant's second motion to reduce child support

was decided, defendant presented no evidence of a change in circumstances

warranting modification of his child support obligation. Moreover, nothing in

defendant's expert medical evaluations supports a conclusion that defendant was




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unable to appreciate or understand his agreement on the imputed income

amount.

      We next consider defendant's argument concerning the award of attorney's

fees to plaintiff. The award of attorney's fees in matrimonial cases is a matter

committed to the discretion of the trial court; reversal is appropriate only when

the trial court has abused its discretion, exceeded its authority, or made a

determination not supported by the record. See Williams,  59 N.J. at 233. In

exercising its discretion, the court must comply with  N.J.S.A. 2A:34-23, which

requires consideration of "the factors set forth in the court rule on counsel fees,

the financial circumstances of the parties, and the good or bad faith of either

party." Mani v. Mani,  183 N.J. 70, 94 (2005) (quoting  N.J.S.A. 2A:34-23).

      Here, we find no abuse of discretion in the judge's award of attorney's fees

in favor of plaintiff. The judge considered the factors set forth in Rule 5:3-5(c),

and provided adequate reasons for his decision.      The judge found defendant

flouted the FJOD and court orders compelling his payment obligations and, as a

result, awarded $3,750 in attorney's fees. The judge evaluated the fee award

under the governing rules and case law, reduced the amount of the requested fee

award by twenty-five percent, and concluded the fee award was appropriate




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based on defendant's "lack of due diligence and good faith" in complying with

court orders and the FJOD.

     Affirmed.




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