Opinion
DOCKET NO. A-5743-13T1
04-15-2016
ANTHONY V. ZAVAGLIA, Plaintiff-Appellant, v. JACQUELINE LEVIN BRAY, Defendant-Respondent.
Ulrichsen Rosen & Freed, LLC, attorneys for appellant (Derek M. Freed, of counsel and on the brief; Alexandra Price-Miller, on the brief). Felsenfeld and Clopton, P.C., attorneys for respondent (Howard L. Felsenfeld, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-000157-11. Ulrichsen Rosen & Freed, LLC, attorneys for appellant (Derek M. Freed, of counsel and on the brief; Alexandra Price-Miller, on the brief). Felsenfeld and Clopton, P.C., attorneys for respondent (Howard L. Felsenfeld, on the brief). PER CURIAM
Plaintiff Anthony V. Zavaglia appeals from the Family Part's order denying his motion to reduce his child support obligation based on his voluntarily leaving his job and enrolling in an online college. The judge found that his unemployment was not only voluntary, but also temporary. On appeal, he argues that the court did not provide sufficient findings of fact and conclusions of law, and that it "erred by failing to acknowledge that plaintiff's efforts to promote the best interest of the child by enrolling full-time in college was a change in circumstances" warranting a reduction and, further, by not ordering a plenary hearing.
We have considered plaintiff's arguments in light of our review of the record and applicable legal principles. We affirm.
The facts derived from the motion record can be summarized as follows. Plaintiff and defendant Jacqueline Levin Bray are the parents of a son who was born in 2008. In 2012, the parties entered into a consent order regarding the child's support. The order required plaintiff to pay $108 per week in child support and an additional $115.38 per week for day-care expenses. Prior to October 2013, the payment for day-care expenses was unnecessary because, as defendant stated, she was not "working at that time since [she] remarried and [became] pregnant with a second child."
In approximately October 2013, plaintiff unilaterally reduced his support payments to thirty-one dollars per week. Defendant filed a motion to enforce the 2012 support obligation, claiming that plaintiff told her he reduced the support because he enrolled in "an online school and he does not attend classes." She argued that plaintiff's choice to stop working and attend school was "temporary and voluntary."
In response, plaintiff filed a cross-motion seeking to reduce his support obligation to thirty-one dollars per week. In his supporting certification, plaintiff did not dispute defendant's allegations about his leaving his job to enroll in the online college. Plaintiff explained he chose to do so because he was previously working two jobs, as a full-time emergency medical dispatcher and a part-time employee for United Parcel Service, Inc., and realized his positions did not offer him any opportunity for growth. He stated, "Because I am now 29 years of age, I believe it is important for me to obtain a degree quickly, so I can jump start a career in law enforcement and/or homeland security and make up for lost time." Plaintiff discussed his plans with defendant — specifically, telling her his inability to pay support would only be for the "near term" and that he "would be able to make more money and pay more support" in the future. Despite that discussion, plaintiff acknowledged that "[d]efendant did not support [his] decision."
After considering the parties' submissions, the Family Part judge initially entered an order temporarily reducing plaintiff's support obligation while she reviewed the applicable case law regarding a parent's choice to enroll in college and its impact on support. The parties' attorneys made additional written submissions and, on June 30, 2014, the judge entered an order denying plaintiff's cross-motion for a support reduction. The judge expressly stated her reasons for her decision in the order. She stated:
The Court relying on Lepis v. Lepis, 83 N.J. 139 (1980), Donnelly v. Donnelly, 405 [N.J. Super.] 117 (App. Div. 2009), Lissner v. Marburger, 394 N.J. Super. 393 (Ch. Div. 2007), denies Plaintiff's application for a reduction of child support because he is voluntarily underemployed in order to attend school and such circumstance[s] [are] deemed temporary. The Court is not persuaded by Plaintiff's . . . arguments in reference to Lozner v. Lozner, 388 N.J. Super. 471 (App. Div. 2006).
Plaintiff filed a timely appeal from the Family Part's order.
Our scope of review of the trial court's decision is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Whether a [support] obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); see also Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). Each individual motion for modification is particularized to the facts of that case, and "the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)); see also Jacoby, supra, 427 N.J. Super. at 116. We will not disturb the trial court's decision on support obligations unless
the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or [are] otherwise . . . well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.See also Jacoby, supra, 427 N.J. Super. at 116. In child support matters, those controlling principles include a consideration of the best interests of the children. Jacoby, supra, 427 N.J. Super. at 116.
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).]
Applying this standard, we find insufficient merit to plaintiff's arguments to warrant discussion in a written opinion, and affirm for the reasons stated in the Family Part judge's June 30, 2014 order. R. 2:11-3(e)(1)(E). We add only that plaintiff failed to offer sufficient proof as to why he should be relieved of his obligation to "not . . . disregard [his] pre-existing duty to provide support," Storey, supra, 373 N.J. Super. at 469, when making career choices and that, because the parties' certifications filed in the Family Part did not create "a genuine, material and legitimate factual dispute," a plenary hearing was not warranted. Segal v. Lynch, 211 N.J. 230, 264-65 (2012).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION