Opinion
DOCKET NO. A-3884-14T2
08-03-2016
HALINA KARKOSZKA, Plaintiff-Respondent, v. KRZYSZTOF KARKOSZKA, Defendant-Appellant.
Fernando Iamurri, attorney for appellant. Halina Karkoszka, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-786-13. Fernando Iamurri, attorney for appellant. Halina Karkoszka, respondent pro se. PER CURIAM
Defendant Krzysztof Karkoszka appeals a March 20, 2015 Family Part order denying his motion to modify his alimony and child support obligations and awarding attorney's fees to his ex-wife, plaintiff Halina Karkoszka. We affirm.
I.
Defendant and plaintiff were married in April 1998, and have two children. Plaintiff filed an action for divorce in October 2012. After a five-day trial, the court issued a written decision and entered a Final Judgment of Divorce (JOD) on April 1, 2014, directing that defendant pay limited duration alimony of $1100 per month for a period of fifteen years and $749 in monthly child support.
The trial court based its alimony and child support awards in part upon its finding that defendant had a history of employment as a full-time tile setter, he inexplicably stopped working after the filing of the divorce complaint, he had "historic income as well as the ability to earn in a number of different areas," he was capable of working in the same field in which he was employed at the time the complaint was filed, he possessed a commercial driver's license, and "was capable of earning, based upon his work history and present testimony, between $50,000 and $65,000" annually. The court imputed an annual income of $65,000 to defendant and based its alimony and child support awards upon the imputed income. There is no indication in the record that defendant appealed the JOD.
During the eleven months following entry of the JOD, defendant filed three motions seeking modification of his alimony and child support obligations. Each of the motions was denied. Defendant did not appeal from any of the denials.
On March 20, 2015, defendant moved for the fourth time in less than one year for a modification of alimony and child support. Defendant's motion was founded upon the contention that there were changed circumstances because he was not earning the income imputed by the trial court and he had fathered a new child who also required his support. Plaintiff opposed defendant's motion and cross-moved for an order holding defendant in contempt for failing to make his child support payments, granting an award of attorney's fees, and awarding other relief.
The court heard argument and in an oral opinion denied defendant's motion, finding that defendant had not made a prima facie showing of changed circumstances. The court found that defendant failed to demonstrate that there was a change in circumstances concerning his ability to earn the income imputed by the trial court. The court noted that defendant's supporting certification offered "no explanation about" why he accepted a job at an hourly rate well below what he could otherwise make based upon his skills and qualifications, and that defendant did not allege he was physically incapable of performing the work upon which the imputation of income was based.
The court further found that defendant did not attach W-2 income tax forms to his motion and failed to include a required Case Information Statement. The court noted that the financial information provided by defendant appeared inconsistent and incomplete because he listed a monthly income insufficient to cover his expenses, but did not identify any debt reflecting the monthly deficiency.
The court acknowledged that defendant had fathered a child subsequent to the entry of the JOD, but rejected the child's birth as a change in circumstances because it was the result of defendant's voluntary decision.
The court entered an order denying defendant's motion to modify his alimony and child support obligations. The order granted plaintiff's cross-motion to hold defendant in contempt and awarded plaintiff $1750 in attorney's fees. Defendant appealed, but on appeal does not challenge that portion of the court's order holding him in contempt.
The order denied the other relief requested by plaintiff in her cross-motion. Plaintiff has not filed a cross-appeal challenging the court's denial of that relief.
II.
We accord special deference to the expertise of the Family Part in its application of legal principles to family disputes. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "However, when reviewing legal conclusions, our obligation is different; '[t]o the extent that the trial court's decision constitutes a legal determination, we review it de novo.'" Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (alteration in original) (quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
The Family Part has authority under N.J.S.A. 2A:34-23 to modify alimony and child support awards. Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015). The statute provides that alimony and child support orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. "Our courts have interpreted this statute to require a party who seeks modification to prove 'changed circumstances[.]'" Spangenberg, supra, 442 N.J. Super. at 536 (alteration in original) (quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)).
Each motion for modification of alimony or child support "rests upon its own particular footing 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." Ibid. (alteration in original) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). "While an 'abuse of discretion . . . defies precise definition,' we will not reverse the decision absent a finding the judge's decision 'rested on an impermissible basis[,]' considered 'irrelevant or inappropriate factors[,]'" ibid. (alterations in original) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571-72 (2002)), or "failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Ibid. (quoting Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004)).
Assessment of changed circumstances requires a judge to examine the parties' current situation and the situation when the order was entered. Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990) ("[I]t is clear that the changed-circumstances determination must be made by comparing the parties' financial circumstance at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations."). In order to establish changed circumstances, a "party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis, supra, 83 N.J. at 157 (quoting Martindell, supra, 21 N.J. at 353).
In its determination of defendant's imputed income, the trial court found that defendant failed to provide proofs regarding "any reasonable efforts to obtain employment outside of [his employment as a tile setter], and based upon his work history and credentials, he is capable of earning in other areas." In support of defendant's modification motion he showed only that during the eleven-month period following entry of the JOD, he had not earned the imputed income upon which his alimony and child support obligations were based. He failed to demonstrate that he was unable to earn the income that the court had imputed to him and that he made reasonable efforts to obtain employment in more lucrative positions for which he is qualified. Instead, his submissions confirmed that he had not pursued employment in positions that the trial court found he was qualified and upon which the trial court based its calculation of his imputed income.
We are satisfied that the court did not abuse its discretion in denying defendant's modification motion. The record supports its determination that defendant did not demonstrate any change in the financial circumstances upon which the trial court determined that defendant had the ability to earn the amount of the imputed income. Beck, supra, 239 N.J. Super. at 190.
Because the record supports the court's determination that defendant did not demonstrate a change in circumstances, we need not address defendant's obligation to demonstrate that any change in circumstances must be permanent. Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). --------
We also reject defendant's claim that the birth of his child following the entry of the JOD established a sufficient change in circumstances warranting a modification of his child support, but for a reason different than that relied upon by the court. The court rejected defendant's assertion that the birth of his new child should be considered as a factor in determining whether a change in circumstances had been demonstrated by defendant. The court stated that the birth of defendant's new child was the result of defendant's "voluntary act." The court's apparent, but incorrect, logic was that defendant could not unilaterally generate a change in circumstances based upon a voluntary decision to have an additional child.
The court's reasoning is inconsistent with our rationale in Martinez v. Martinez, 282 N.J. Super. 332, 341-42 (App. Div. 1995), where we held that a parent's obligation to support a child who had not been born and was "not contemplated at the time of the original" support order, is one of many factors a court must consider in determining whether there is a change in circumstances warranting modification of a child support award. We noted that the support of a child by its parent "should not primarily depend on the date of his or her birth, [or] the family in which he or she is born" and that the "Child Support Guidelines [do] not substantially differentiate between children born of the first or ensuing relationships when modification is an issue or the right to be supported by a common, legally obligated parent is asserted." Id. at 340. Thus, we rejected the reasoning, relied upon by the court here, that the birth of the defendant's new child could not support a finding of changed circumstances.
The court's incorrect reasoning here, however, did not result in an incorrect result. The evidence establishing the birth of defendant's new child did not demonstrate a change in circumstances sufficient to require a modification of his child support and alimony obligations. Id. at 341-42; Narvae v. Freestone, 281 N.J. Super. 484, 489 (Ch. Div. 1995). Instead, it is one of many factors the court was required to consider in determining whether there was a change in circumstances sufficient to warrant modification of the support order. Martinez, supra, 282 N.J. Super. at 341-42.
In addition to the birth of the new child, the court was required to consider whether defendant "has an ability, [and] the opportunity to earn additional income — and if so, how much — so as to lessen the potential financial impact, the potential hardship, on his first family that" the requested reduction in defendant's obligation may impose. Id. at 342. The court was also required to determine whether defendant resides with the other parent of the newly born child, the other parent's earnings and contributions to shared expenses, the lifestyle of each family, the extent to which the lifestyles will be affected by a modification of the court's order, and whether the child has special needs. Id. at 342-43.
We are convinced that the court correctly rejected defendant's reliance upon the birth of his new child as a basis for a finding of changed circumstances because, as noted, defendant failed to demonstrate there were any changed circumstances affecting his ability to earn the income as a tile setter or commercial truck driver that was imputed to him by the trial court. Because defendant failed to provide such evidence and other information we held must be considered in Martinez, the court properly rejected defendant's singular reliance upon the birth of his new child as a basis for his claimed change in circumstances.
Defendant also contends the court erred in awarding attorney's fees to plaintiff and asserts that the court failed to make findings concerning the factors that must be considered under Rule 5:3-5(c). We review an order regarding attorney's fees in a matrimonial case to determine if the trial court abused its discretion. Harte v. Hand, 433 N.J. Super. 457, 465-66 (App. Div. 2013) (citing J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012)). We "will disturb a trial court's determination on counsel fees only on the 'rarest occasions, and then only because of a clear abuse of discretion.'" J.E.V., supra, 426 N.J. Super. at 492 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Under N.J.S.A. 2A:34-23, a court may award counsel fees in a matrimonial matter and "shall consider 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." Our Court Rules provide that a trial judge may, in his or her discretion, award counsel fees in a matrimonial action. R. 5:3-5(c). A judge should consider the following factors in "determining the amount of the fee award":
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
Here, we discern no abuse of discretion in the court's decision to award counsel fees to plaintiff. The court determined that defendant's filing of four motions for modification within one year of the entry of the JOD, his filing of the present motion within two months of the denial of his immediately preceding motion, and his ongoing failure to offer any evidence of a change in the circumstances related to his ability to earn the imputed income justified the imposition of an attorney's fee award.
Contrary to defendant's assertions, the court also expressly considered the financial circumstances of the parties, their respective abilities to pay the fees, the fees incurred, the reasonableness and good faith of the parties concerning defendant's modification and plaintiff's cross-motion to have defendant held in contempt, and the record otherwise supports the court's determination. See Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 2013) (finding that a court need "not specifically enumerate[] every factor identified in the court rule and statute" where there is adequate support for the judge's determination).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION