Opinion
DOCKET NO. A-5635-12T2
02-22-2016
NICOLE SABATELLI, Plaintiff-Respondent, v. STEPHEN FEENEY, Defendant-Appellant.
Stephen J. Feeney, appellant, argued the cause pro se. Nicole Sabatelli, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-000317-08. Stephen J. Feeney, appellant, argued the cause pro se. Nicole Sabatelli, respondent, argued the cause pro se. PER CURIAM
Plaintiff Nicole Sabatelli and defendant Stephen Feeney, both of whom were unrepresented before the Family Part judge and are unrepresented on appeal, have one child, born in 2005. The child resides with Sabatelli; Feeney is obligated to pay Sabatelli $140 per week in child support. Feeney appeals a June 10, 2013 order denying his application for downward modification. The application, one of many he has made over several years, was denied without a hearing. We reverse.
We know little about the circumstances surrounding the order from the scant record provided on appeal. We do know that when the parties appeared in court on June 10, 2013, Feeney offered to pay $100 per week, alleging that when the child support order was entered, he earned substantial wages but had since suffered significant injuries at work and has been under-or unemployed for years.
Sabatelli in turn alleged that Feeney was receiving at least $900 per month from worker's compensation and at some point received a lump sum payment. Feeney provided no medical documentation of his medical condition. He claimed that because of chronic health issues he was currently unable to work at all.
After hearing from the parties, the judge ordered Feeney to pay $100 per week ongoing, while the balance on the order of $40 per week would be added to arrears. She made the decision based on Feeney's offer, presumably relying on his representation that he had family willing to help him to maintain $100 weekly payments. The judge further explained the child needed support, the amount was modest, and she wanted to ensure that the custodial parent would at least be able to collect on arrears after the child's emancipation. As the judge phrased it, she could not tell the child not to eat while Feeney was looking for work.
It is well-established that orders of support are subject to review and modification if the moving party demonstrates a substantial and permanent change in circumstances. See Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). The question of whether such change in circumstances "has endured long enough to warrant a modification of a support obligation[,]" is left to the discretion of the Family Part judge. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). 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 circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations.").
A change in circumstances can be demonstrated by a change in the payor's health which alters his ability to earn income. J.B. v. W.B., 215 N.J. 305, 327 (2013). The issue the payor must be able to develop is the effect of any such illness or disability on employability and wage-earning potential.
Accordingly, the Family Part judge should have considered Feeney's worker's compensation recovery, ongoing worker's compensation payments, medical status, ongoing efforts to obtain employment, and other relevant factors. The judge should have taken into account changes, if any, in Sabatelli's financial picture, and the child's current needs.
In this case, there does appear to be a genuine dispute as to material facts which warrants an actual hearing. Lepis v. Lepis, 83 N.J. 139, 159 (1980). Feeney is entitled to an opportunity to establish his claimed now-limited physical condition. Sabatelli is entitled to discovery, not only as to Feeney's health, but also the worker's compensation payments and lump sum recovery she asserts he was paid.
On appellate review, we ordinarily employ the abuse of discretion standard when faced with a challenge to a modification decision. J.B., supra, 215 N.J. at 325-26 (citing Jacoby, supra, 427 N.J. Super. at 116). Applying that standard, we conclude the error here was the court's decision to forego such a hearing. In light of Feeney's multiple applications for downward modifications and the court's apparent familiarity with the parties, there may be some reason not apparent from the record for her decision. Nonetheless, on this record we conclude that to deny the application in the absence of an opportunity for the hearing was an abuse of discretion and a mistake of law.
Reversed and remanded for a hearing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION