Opinion
DOCKET NO. A-2082-12T4
07-01-2014
NICOLE GALLO, Plaintiff-Respondent, v. MATTHEW MEAHAN, Defendant-Appellant.
August J. Landi, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Lisa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1964-10-C and FM-13-1305-03-A.
August J. Landi, attorney for appellant.
Respondent has not filed a brief. PER CURIAM
In this post-judgment matrimonial matter, defendant Matthew Meahan appeals a November 30, 2012 Family Part order denying his motion to suspend enforcement of arrears, vacate a bench warrant, reduce his support obligations, and modify child visitation to allow for unsupervised parenting time. After considering defendant's contentions in light of the applicable legal principles, we remand for the limited purpose of clarifying, in the order, the application of funds defendant provided shortly before the motion hearing; we affirm all other aspects of the order.
We glean the following facts from the record. The parties were married in 1999, and had one daughter, born in 2002. Upon separating in 2010, the parties entered into a written agreement that plaintiff would have physical custody of their daughter with supervised parenting time for defendant, as he was struggling with alcoholism. On June 22, 2011, the Family Part entered a judgment of divorce (JOD), which incorporated a property settlement agreement (PSA) setting forth the terms of equitable distribution, limited duration alimony, and child support. The PSA also incorporated the 2010 parenting time agreement, "pending further court order or agreement by the parties."
The PSA further required the parties to exchange certain documents within thirty days in order to accurately calculate the value of their assets for the equitable distribution. These included appraisals and statements regarding the parties' marital home and timeshare; defendant's pension, annuity, and 401k; plaintiff's 401k; and proof that defendant purchased a life insurance policy listing plaintiff and their daughter as beneficiaries. The PSA also required defendant to pay an IRS lien.
Plaintiff filed her first post-judgment motion in September 2011 requesting enforcement of the PSA because defendant failed to provide the documents that were due thirty days after the JOD. She also requested $100 per day in sanctions for each day he failed to comply with the discovery requests and counsel fees. The court granted her motion on October 21, 2011.
This order was not included in the record.
After six more months passed without defendant providing the ordered documents and without making the ordered payments, plaintiff filed her second post-judgment motion on March 28, 2012, requesting the court to enforce the PSA, set the amount of arrears, set the amount of sanctions, and award counsel fees. Defendant did not file an answer and did not appear at the April 30, 2012 motion hearing.
The court granted plaintiff's motion, awarding additional counsel fees; imposing $15,000 in sanctions to be deducted from defendant's share of equitable distribution; and permitting plaintiff to apply for an ex parte arrest warrant if defendant continued to refuse to provide discovery or pay the IRS lien payments as previously ordered, unless he filed an answer by May 11, 2012. The order also set arrears at $4384.44 and specified that if defendant missed two payments towards child support, a bench warrant would automatically issue. After defendant again failed to provide the required documents and make the IRS lien payment, on June 8, 2012, plaintiff obtained a bench warrant for defendant's arrest for failure to comply with the October 21, 2011 and April 30, 2012 orders.
According to defendant, from January 17, 2012 to February 14, 2012, he was at an inpatient rehabilitation center to address his alcoholism. He borrowed $16,000 from his union to pay towards his outstanding arrears, the counsel fee awards, and the IRS lien. The union issued the check while he was in the rehabilitation center, and sent it to defendant's attorney, Christopher Kirkwood.
Defendant certified that for months he believed Kirkwood had turned the funds over to plaintiff. Defendant also claimed he did not recall receiving notice of the April 30, 2012 motion, or a copy of the resulting order from his attorney. He acknowledged receiving a copy of the order from plaintiff's counsel. Plaintiff asserted she also informed defendant that the order had not been followed.
When defendant heard that plaintiff had not received the $16,000 check, he contacted Kirkwood, who assured him it "was all taken care of." Defendant later discovered that Kirkwood deposited the check by forging defendant's name while he was in rehabilitation treatment. All subsequent efforts to locate Kirkwood were unsuccessful. After defendant began to suspect Kirkwood had stolen his money, he retained new counsel.
Kirkwood was disbarred in New Jersey on January 14, 2014.
In August 2012, when defendant's new counsel contacted opposing counsel to discuss visitation matters, plaintiff's counsel advised that a bench warrant had been issued in June 2012 for defendant's arrest. After the parties were unable to resolve their outstanding issues through negotiations, defendant filed a motion on October 16, 2012.
Defendant sought an order requiring arbitration of all financial and custody issues. Defendant argued that the support provisions should be modified and enforcement of arrears suspended because his attorney stole $16,000 earmarked for plaintiff, and he anticipated he would be laid off from his job soon. He also asserted that unsupervised visits were currently appropriate because his rehabilitation was successful; he attended AA meetings four times per week with 239 days of sobriety; and he attended weekly counseling sessions with David Goldberg, Ph.D. He also submitted a letter from Dr. Goldberg commending his successful sobriety.
Plaintiff opposed defendant's motion and filed a cross-motion requesting, among other things, that defendant comply with the two prior post-judgment orders or face additional bench warrants, and asking the court to set the daily $100 sanctions from April to October at $39,000 and for an increase to $250 per day going forward. Plaintiff argued that defendant failed to demonstrate a sufficient change of circumstances to warrant a change in the support provisions. She also argued that defendant had a longstanding serious drinking problem with a history of lying about his sobriety, and she did not think that unsupervised visits were safe for their daughter.
Plaintiff also claimed that defendant was served with the motion papers for the April 30, 2012 hearing by certified mail at his home address, and she provided the motion court a copy of the certified mail receipt bearing defendant's signature. She also stated she gave defendant a "heads up" that the bench warrant was coming if he did not provide the documents, because "the last thing [she] wanted to do was have to put [defendant] in jail in order to get him to abide by the [c]ourt's order."
At the November 30, 2012 hearing, both attorneys acknowledged that defendant had recently provided a check for over $8000, which was enough to cover the support arrears and the IRS lien, leaving the counsel fees and sanctions unpaid. Plaintiff's counsel emphasized that defendant's most significant remaining deficit was his failure to provide the paperwork needed in order to complete the equitable distribution.
The record does not reflect the exact amount of the check or the date it was delivered.
The judge denied defendant's motion in its entirety. Regarding the missing $16,000, the judge determined that plaintiff should not have to suffer the consequences of that loss, noting that transferring the check to her was ultimately defendant's responsibility. The judge pointed out that defendant sticking his "head in the sand thinking that it's all going to fix itself, is certainly not the approach to take[.]" The judge found that defendant had received notice of the April 30, 2012 hearing and a copy of the order and refused to vacate the sanctions or bench warrant. After reviewing defendant's financial information, the judge found no sufficient change in circumstances to warrant modification of the support provisions stating, "It appears that any change[s] in circumstances are temporary in nature and I'm not even satisfied that there are changed circumstances."
Regarding unsupervised visits, the judge found significant plaintiff's concerns that defendant had not yet sufficiently dealt with his alcoholism. Plaintiff also pointed out that Dr. Goldberg's letter did not explicitly recommend that defendant be granted unsupervised visits, and the letter did not establish that Dr. Goldberg had any personal knowledge as to defendant's success at sobriety. The judge denied defendant's request for unsupervised visits but suggested that plaintiff and defendant attempt to negotiate the conditions of an end date for supervision of visitation.
The judge granted substantially all of plaintiff's requests, finding defendant in violation of litigant's rights for failure to abide by the prior orders and the terms of the PSA. The judge ordered defendant to pay the IRS bill within twenty-one days or a bench warrant would issue; provide discovery pursuant to the PSA within twenty-one days or a bench warrant would issue; and pay an additional $750 in counsel fees for the instant matter in addition to the fees owed for the two prior motions. The judge kept defendant's sanction total set at $15,000, and set arrears at $4207.25. The judge denied plaintiff's requests for additional sanctions and automatic bench warrants for future missed support payments. This appeal followed.
Defendant first argues on appeal that the motion judge failed to recognize that his former counsel's theft of $16,000, and counsel's failure to answer plaintiff's motion and appear at the April 30, 2012 hearing, evidenced a complete breakdown of the attorney-client relationship, which mandated a hearing to reform or rescind the PSA, or at minimum, it mandated the $15,000 sanction be vacated. We disagree.
Defendant did not request any of this relief in his motion papers and defense counsel only vaguely referenced reforming the PSA at oral argument, stating he was "going to do a brief," but he "didn't get a chance to." Thus, these issues are not properly before us on appeal. See N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010). Accordingly, we decline to grant defendant's requested relief.
Even if we were to consider these contentions, we would find them to be without merit. Defendant did not demonstrate in his motion any "unconscionability, fraud, or overreaching in negotiations of the settlement" that would have warranted the rescission or reformation of the PSA, see J.B. v. W.B., 215 N.J. 305, 326 (2013), nor did defendant provide any justification for his failure to abide by the terms of the PSA and prior court orders such that sanctions should have been vacated. See R. 4:50-1(f).
Defendant next argues that the court erred in denying his claim of changed circumstances with regard to his support obligations as they are no longer fair and equitable. He further contends that the bench warrant should have been lifted as he could no longer afford his support obligations and an ability to pay hearing had not occurred. We do not agree.
Alimony and child support "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. To make such a modification, a showing of "changed circumstances" is required. Lepis v. Lepis, 83 N.J. 139, 146 (1980); see also Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). Temporary or anticipated changed circumstances do not warrant modification. Lepis, supra, 83 N.J. at 151. "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Id. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)).
To determine whether there is a prima facie showing of changed circumstances, a judge must consider the terms of the order at issue and compare the facts as they were when that order was entered with the facts as they are at the time of the motion. Faucett v. Vasquez, 411 N.J. Super. 108, 129 (App. Div. 2009) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 288 (App. Div.), certif. denied, 28 N.J. 147 (1958)), certif. denied as moot, 203 N.J. 435. Additionally, where, as here, the parties consented to an agreement, it should be given ample consideration. Weishaus, supra, 180 N.J. at 143 (citing Smith v. Smith, 72 N.J. 350, 358 (1977)).
A modification of support obligations based on changed circumstances is committed to the trial court's sound discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); 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, supra, 21 N.J. at 355). We will not disturb the trial court's decision on support obligations unless we
conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be 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.
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).]
Here, the motion judge's finding that defendant failed to demonstrate the requisite change in circumstances was supported by sufficient credible evidence in the record. See ibid. After reviewing defendant's most current case information statement, tax return, and pay stubs, the judge determined that defendant's modest change in income, which was not shown to be permanent, did not warrant a modification of support. The record shows that defendant's total gross pay in 2011 had only been reduced by approximately $8000 since the PSA was entered. Since defendant failed to make a prima facie showing of change in circumstances, a hearing was not warranted, Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010), and we are satisfied that the motion judge did not abuse his discretion in denying a modification of support. See Larbig, supra, 384 N.J. Super. at 21.
The PSA based support on defendant's salary of $152,000 and his 2011 tax return showed income of over $144,000.
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We also discern no error in the motion judge's denial of defendant's request to lift the bench warrant issued in June 2012. "[A] proceeding to enforce litigants' rights under Rule 1:10-3 is essentially a civil proceeding to coerce the defendant into compliance with the court's order for the benefit of the private litigant and incarceration may be ordered only if made contingent upon defendant's continuing failure to comply with the order." Pasqua v. Council, 186 N.J. 127, 140 (2006) (internal quotation marks and citations omitted).
Here, defendant's bench warrant was the result of his continuing failure to comply with previous orders to provide documents pursuant to the terms of the PSA and to pay support arrears, the IRS lien, and counsel fees. Defendant acknowledged receiving the April 30, 2012 order from plaintiff's counsel, which provided that he must pay the IRS lien and provide the ordered documents or plaintiff could apply for a bench warrant. While defendant apparently provided funds prior to the November 30, 2012 hearing to cover the IRS lien and arrears, he did not provide the missing documents. Indeed, nowhere in the record does defendant provide any justification whatsoever for his failure to provide the ordered documents for well over a year. He makes no claim that it would have been impossible for him to comply. Hence, as the issuance of the bench warrant was partially based on the failure to provide the ordered documentation, we are not persuaded that the judge's decision not to vacate the June 8, 2012 bench warrant was erroneous.
Nevertheless, we are concerned that both November 30, 2012 orders do not accurately reflect that shortly before the motion hearing defendant had delivered more than $8000 to plaintiff, which was sufficient to pay both the IRS lien and the support arrears. As a result, the part of plaintiff's cross-motion order requiring defendant to pay the IRS bill or a bench warrant would issue appears to be inconsistent with this payment. Additionally, the part of defendant's order where the judge denied suspension of enforcement of arrears should have been deemed moot, as the arrears had been satisfied by this payment. Further complicating this issue, there was some discussion during the hearing about using some of those funds for the unpaid counsel fees from the past two orders, making the exact apportionment of the funds unclear in this record. Thus, to ensure that the orders are completely accurate, we must remand this issue to the trial court to include defendant's payment in the orders, specifically designate what items of the prior orders the funds were applied to, and correct any other inconsistencies resulting from the application of those funds.
Finally, defendant contends the trial court erred in denying his request for unsupervised visits with his daughter as he had presented sufficient evidence of his sobriety. He argues that, at minimum, the judge should have established a path forward to restoration of such visits. We discern no error in the judge's decision.
In any custody or visitation determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court's focus must be "on the 'safety, happiness, physical, mental and moral welfare' of the" child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
A judge must consider a request for custody modification in accordance with the procedural framework established in Lepis, supra, 83 N.J. at 157-59. To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances and that the changed circumstances affect the welfare of the child such that his or her best interests would best be served by modifying custody or visitation. Hand, supra, 391 N.J. Super. at 105.
In evaluating whether the requisite changed circumstances exist, the court must consider the circumstances that existed at the time the current custody order was entered. Sheehan, supra, 51 N.J. Super. at 287-88. After considering those facts, the court can then "ascertain what motivated the original judgment and determine whether there has been any change in circumstances[.]" Id. at 288. "In assessing a claim of changed circumstances deference is given to the length and stability of the existing custody relationship." M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979). A decision concerning custody is up to the sound discretion of the judge. See Randazzo v. Randazzo, 184 N.J. 101, 113 (2005).
Applying the above principles, we perceive no reason to disturb the judge's decision. Here, the judge's determination that defendant failed to establish a prima facie case that a material change of circumstances affecting the child's well-being had occurred is supported by the record and is consistent with the controlling legal principles. Defendant's letter from Dr. Goldberg did not recommend that defendant be granted unsupervised visits, and did not demonstrate that the doctor had any personal knowledge as to defendant's sobriety. Accordingly, the judge's decision to deny defendant's request without a hearing was an appropriate exercise of his discretion. We note, however, that our affirmance on this issue is without prejudice as to defendant's right to renew his request for unsupervised visits supported by appropriate proofs.
We have considered defendant's remaining arguments and find them without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed in part; remanded solely for clarification of the orders consistent with this opinion. 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 APPELLATE DIVIDION