Opinion
DOCKET NO. A-2220-14T1
04-14-2016
DANA M. DONOVAN, f/k/a DANA MACEDO, Plaintiff-Respondent, v. JOHN MACEDO, JR., Defendant-Appellant.
John Macedo, Jr., appellant, argued the cause pro se. Kristin S. Pallonetti argued the cause for respondent (Steven P. Monaghan, LLC, attorney; Ms. Pallonetti, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-616-08. John Macedo, Jr., appellant, argued the cause pro se. Kristin S. Pallonetti argued the cause for respondent (Steven P. Monaghan, LLC, attorney; Ms. Pallonetti, on the brief). PER CURIAM
In this post-judgment matrimonial matter, and by leave granted, defendant appeals from the July 29, 2014 order of the Family Part dismissing his motion for modification of his child support obligation and for reconsideration of a prior child support enforcement order. We affirm.
The parties were married in July 1999, and divorced in February 2008. They have one child. The parties' Final Judgment of Divorce incorporated the terms of their Marital Settlement Agreement (MSA). In the MSA, the parties agreed to share joint legal custody of their child, with plaintiff being designated as the parent of primary residence. The MSA required defendant to pay plaintiff $117 per week in child support.
In October 2011, defendant filed a motion to reduce his child support obligation, which was denied by the trial judge on December 16, 2011. In pertinent part, Rule 5:5-4(a) provides:
Defendant sought other relief in his motion, as did plaintiff in her cross-motion. This pattern was repeated by the parties in their subsequent motions. Because the issue involved in this case is limited to defendant's child support obligation, we will only address the portions of the Family Part's orders that deal with that subject.
In the event a motion or cross-motion is filed to modify an obligation for . . . child support based on changed circumstances, the movant shall append copies of the movant's current case information statement [CIS] and the movant's case information statement previously executed or filed in connection with the order, judgment or agreement sought to be modified.Although it is not included in the record on appeal, it appears from defendant's colloquy with the court at a February 21, 2014 proceeding that defendant submitted a current CIS prepared in 2011 with his motion to reduce his child support obligation. It is not clear whether defendant also submitted the CIS used to establish child support in the parties' 2008 MSA.
In early 2012, defendant filed a second motion to reduce his child support obligation. The record does not indicate whether he submitted an updated CIS with this motion, or the 2008 or 2011 CIS's. On May 30, 2012, a different judge granted defendant's motion and reduced his obligation from $117 to $112 per week.
On January 8, 2014, defendant filed a third motion to reduce his child support obligation. With this motion, defendant submitted a CIS dated January 8, 2014. However, this CIS was incomplete because it only contained portions of defendant's tax returns for the years 2010, 2011, 2012, and 2013. Defendant also failed to provide any W-2 forms or pay stubs as required in the CIS form. In addition, defendant did not supply a copy of the 2011 CIS concerning the order he sought to modify.
Prior to the trial court's consideration of this motion, the county probation department sent the parties a "notice of cost of living adjustment" (COLA) concerning defendant's child support obligation. Under the COLA, defendant's child support obligation was increased from $112 to $116 per week.
Following oral argument on February 21, 2014, a third trial judge denied defendant's motion to reduce his child support obligation. The judge found that the motion was "procedurally deficient" because defendant failed to submit a complete, current CIS or the 2011 CIS that was used in 2012 to establish the extant child support obligation. During her colloquy at oral argument, and again in her statement of reasons accompanying the February 21, 2014 order, the judge highlighted the specific deficiencies in defendant's motion papers. The judge also gave defendant instructions on the documents he needed to file to attempt to demonstrate a permanent change in circumstances that might warrant a modification of support.
This judge maintained responsibility for this case in the Family Part throughout the rest of the proceedings relevant to this appeal.
The judge also advised defendant that he needed to present any future motion papers in the proper format, including separating his exhibits with labeled dividers as required by Rule 5:5-4(g). --------
Thereafter, defendant began paying plaintiff less than $10 per week in child support. Defendant alleged he was no longer employed and that his girlfriend and his father paid all of his monthly expenses. Defendant claimed that he had established a photography business over the "past couple of years[,]" but was not earning "a true income" from this endeavor. In addition, he asserted that he was helping his girlfriend by working at her yoga studio, but he was not being paid for this assistance.
The county probation department instituted an enforcement action, and the parties appeared before a hearing officer on June 4, 2014. Following a hearing, the hearing officer recommended that defendant make a lump sum payment of $500 toward his child support arrears of $2579, and pay $30 per week, in addition to his $116 weekly obligation, toward the balance of his arrears. Defendant told the hearing officer that he accepted this recommendation, and declined the opportunity to have a trial judge review the matter. Thus, the hearing officer issued a conforming order, signed by a Family Part Judge, on June 4, 2014.
On June 24, 2014, defendant filed his fourth motion to modify his child support obligation. He also asked the court to reconsider the hearing officer's order requiring him to make payments toward his arrears. Contrary to the trial judge's February 21, 2014 order, and the specific direction and advice she provided, defendant again failed to file a current CIS or the 2011 CIS that was used to set the obligation he sought to modify.
After plaintiff filed a cross-motion objecting to the modification and pointing out these deficiencies, defendant submitted a CIS that was dated July 16, 2014. However, this CIS was incomplete because defendant did not submit any tax returns, "W-2 statements, 1099's, K-1 statements[,]" or recent pay stubs. Defendant also did not file the 2011 CIS. Instead, he submitted an older CIS, dated January 17, 2008, that had been used at the time of the parties' divorce. However, this CIS was also incomplete because it contained none of the required tax and earnings documentation.
Because of these deficiencies, the trial judge dismissed defendant's motion. In her written statement of reasons, the judge found that defendant "failed to provide a prior CIS and a complete current CIS" as required by Rule 5:5-4(a). This appeal followed.
On appeal, defendant argues that the trial judge erred by dismissing his motion for the procedural deficiencies identified in her decision. We disagree.
The scope of our review of the Family Part's orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Id. at 413. Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we 'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).
Child support orders are subject to modification pursuant to N.J.S.A. 2A:34-23 upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The motion judge may revise child support when the party seeking modification satisfies the burden of showing a change of circumstances warranting relief or alteration of the prior order. Id. at 157. Significant changes in the income or earning capacity of either spouse may result in a finding of changed circumstances. W.S. v. X.Y., 290 N.J. Super. 534, 539-40 (App. Div. 1996). "[T]he 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).
Thus, the "complete financial information of both parents [i]s necessary for any order of child support." Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). The financial information submitted to the court must be current and updated prior to any modification order. Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991).
Accordingly, Rule 5:5-4(a) specifically requires the moving party to provide the court with his or her complete "current [CIS] and the [CIS] previously executed or filed in connection with the order, judgment or agreement sought to be modified." "This mandate is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya, supra, 251 N.J. Super. at 253.
Applying these principles, we discern no basis for disturbing the judge's decision to dismiss defendant's motion to modify his child support obligation. Contrary to the requirements of Rule 5:5-4(a), defendant failed to supply a complete, current CIS, or the CIS that he submitted in 2011 when his support obligation was last modified. Therefore, the judge properly decided not to consider defendant's motion.
We note that the July 29, 2014 order does not state that defendant's modification motion was dismissed with prejudice. It is clear from the trial judge's instructions to defendant concerning how to file a conforming motion that she intended the dismissal to be without prejudice. Accordingly, defendant is not barred from filing a new motion seeking modification of support.
Should he file such a motion, however, defendant must understand that he bears the burden of showing a change of circumstances warranting relief or alteration of the prior order. Lepis, supra, 83 N.J. at 157. To do so, defendant must submit a detailed certification explaining the factual basis for his claim and attach relevant exhibits, separated by labeled dividers, supporting his allegations. As discussed in detail in this opinion, these exhibits must include a current CIS and the CIS used to determine the child support obligation he seeks to modify.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION