Opinion
DOCKET NO. A-5500-12T1
09-29-2014
ANN SHEARER, f/k/a ANNE RODRIQUEZ, Plaintiff-Respondent, v. GEORGE RODRIGUEZ, Defendant-Appellant.
George Rodriguez, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-969-94. George Rodriguez, appellant pro se. Respondent has not filed a brief. PER CURIAM
In this post-judgment divorce matter, defendant appeals the June 10, 2013 Family Part order denying his request for reconsideration of the April 16, 2013 order modifying the amount of life insurance defendant was required to maintain, and denying his requests for modification of child support and enforcement of the visitation schedule. Having considered defendant's contentions in light of the applicable legal principles, we affirm.
The following facts are derived from the record on appeal. The parties were married in 1980, and had three children - twins, born in 1989, and a daughter, born in 1993. The judgment of divorce entered on March 27, 1995, incorporated the parties' Property Settlement Agreement (PSA). The PSA provided that the parties had joint legal custody of the children with plaintiff being the parent of primary residence and defendant having a detailed visitation schedule. The parties agreed that defendant would provide $1750 per month in child support. The PSA also required defendant to maintain a $250,000 term life insurance policy naming the children as beneficiaries, until the children were emancipated.
On July 20, 2012, the Family Part judge entered an order emancipating the twins. The judge ordered defendant to file a motion with his current financial documentation in order to obtain a recalculation of support for the remaining child. Shortly thereafter, defendant filed the motion to modify child support and also requested a reduction of the required amount of life insurance due to the twins' emancipation. Plaintiff filed a response stating that she had been working as a substitute teacher but was unemployed, and had no assets or income.
On October 2, 2012, the Family Part judge entered an order modifying defendant's child support to $390 per week based on defendant's 2011 gross income of $238,396. The judge noted that plaintiff's 2011 joint tax return showed that her husband earned $102,602 and that she collected $8176 in unemployment benefits. The judge imputed an income of $25,990 to plaintiff based on Bureau of Labor Statistics wage data because she certified she sporadically worked as a substitute teacher. The judge also denied without prejudice defendant's request to reduce the required amount of life insurance for the daughter as he failed to include necessary documentation.
A few days later, defendant submitted a letter to the judge seeking the correction of clerical errors on the child support worksheet. Defendant also took issue with the judge's imputation of plaintiff's income at $25,990 per year, stating that the judge failed to account for IRA distributions she and her husband reported on their 2011 tax return. On October 26, 2012, the judge entered an amended order setting defendant's child support at $366 per week and declining to modify plaintiff's imputed income. Defendant did not appeal this order.
Less than four months later, on February 14, 2013, defendant filed another motion again seeking to modify child support based on his 2012 W-2, which showed $215,180 in gross income. Defendant also argued that plaintiff's 2011 IRA distributions should be applied as income in 2012 when calculating child support. Defendant again requested that the required amount of life insurance be reduced and included the necessary documents. In addition, defendant requested the court enforce the PSA visitation schedule so he could have visitation with his daughter.
He also requested other relief, which for the most part was granted and is not the subject of this appeal.
In her opposition, plaintiff reported that her "financial situation remains the same." She asserted that all her income was accurately reflected in her tax returns as set forth, including the IRA that her husband and she have had to draw down on through their joint account.
On April 16, 2013, the judge granted defendant's request to reduce the amount of required life insurance. The judge rejected defendant's argument he should only maintain enough life insurance to cover support payments for two years based on when his daughter would likely be emancipated. The judge observed that emancipation is a fact sensitive determination, and "[t]here is no way to definitively know when [the daughter] will have moved beyond the sphere of influence of her parents [.]" Instead, the judge divided by three the $250,000 required by the PSA for the three children, which resulted in a total of $83,000 in coverage for the unemancipated child.
The judge denied without prejudice defendant's motion to modify or recalculate child support because defendant did not file the required documents. Defendant failed to provide an updated CIS as mandated by Rule 5:5-4(a) and merely attached his W-2 indicating a modest change in wages of $215,180. In his decision, the Family Part judge pointed out that the court recalculated defendant's child support as recently as October 2012 based on defendant's income of $238,396, and that the current request did not show a significant change in defendant's income. Further, the judge found, defendant did not provide any information to establish that his change in circumstance was substantial or permanent as required by Lepis v. Lepis, 83 N.J. 139 (1980). Regarding the plaintiff's alleged IRA distributions, the judge observed that the IRA withdrawals appeared to be distributions from plaintiff's spouse's employment because plaintiff's income was from working sporadically as a substitute teacher.
The judge also denied defendant's request to enforce the PSA visitation schedule. The judge found that defendant failed to provide any information concerning whether plaintiff had interfered with visitation or the parties' established pattern of visitation. Furthermore, the judge found that since the daughter was twenty years old, "any decisions regarding parenting time must be made by her."
On April 25, 2013, defendant mailed a letter to the Family Part judge requesting reconsideration of the April 16, 2013 order. Defendant then filed a formal motion for reconsideration on May 8, 2013, twenty-two days after the April 16, 2013 order. Therein, defendant argued that the court had an obligation to make a factual determination as to whether plaintiff's 2011 IRA distributions were her income. Additionally, defendant argued that the $83,000 in life insurance should be reduced to a "more reasonable sum closer to the reality of the current circumstances." Regarding the denial of visitation, defendant argued that the judge acknowledged that his daughter had not "moved beyond the sphere of influence" of her parents, and accordingly, visitation should be enforced. Defendant asserted that his daughter wrote him letters stating that she wants to visit and asked him not to disclose her requests to plaintiff.
The record contains a copy of the motion dated May 6, 2013 but defendant has not provided a filed copy. Hence, the record does not refute the judge's finding that the motion was not filed until May 8, 2013.
On June 10, 2013, the judge entered an order denying defendant's motion for reconsideration. First, the judge found that defendant's motion was substantively deficient because defendant merely indicated he did not "agree with the outcome of the Order entered April 16, 2013, but he [did] not state[] with specificity the basis on which his motion for reconsideration [was] made, including a statement of the matters or controlling decisions which he believes the court overlooked or to which it erred." The judge further found that defendant's motion was procedurally deficient as he filed his motion on May 8, 2013, which was beyond the twenty-day deadline set forth in Rule 4:49-2. This appeal followed.
As a preliminary matter, although the entirety of defendant's brief argues that the April 16, 2013 order was erroneous, defendant only appealed the denial of his motion for reconsideration of that order. Accordingly, the underlying April 16, 2013 order need not be addressed. See W.H. Indus. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). That said, addressing the underlying order is not necessarily improper. See W.H. Indus., supra, 397 N.J. Super. at 459. (addressing the underlying order despite the procedural deficiency).
A review of the record establishes that the judge's denial of reconsideration was not an abuse of discretion. An appeal from the denial of a motion for reconsideration is governed by Rule 4:49-2. Such a motion is addressed to the trial court's sound discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.) (citation omitted), certif. denied, 195 N.J. 521 (2008). "Reconsideration should be utilized only for those cases [where] . . . either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (internal quotation marks and citation omitted). Trial courts should grant motions for reconsideration "only under very narrow circumstances[.]" Fusco, supra, 349 N.J. Super. at 462.
Here, the record clearly supports the judge's conclusion that defendant's reconsideration arguments amounted to a repetition of previous arguments already considered and rejected by the judge, and thus, the judge's denial of reconsideration was not an abuse of discretion. Accordingly, defendant's motion for reconsideration was properly denied. Of greater importance, our review of the record concerning the underlying April 16, 2013 order establishes that the judge did not abuse his discretion in denying defendant's relief on the original motion.
In addition, the judge found that defendant's motion was filed two days beyond the twenty-day time limit set forth in Rule 4:49-2. The time limit is strictly enforced because courts have "strong interests in [the] finality of judgments and judicial efficiency [.]" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
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"When a party to a comprehensive negotiated PSA seeks to modify any support obligation, that party must meet the threshold standard of changed circumstances." J.B. v. W.B., 215 N.J. 305, 327 (2013) (citing Lepis, supra, 83 N.J. at 146-48). However, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Lepis, supra, 83 N.J. at 151.
"The party moving for the modification bears the burden of making a prima facie showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 420 (1999) (citing Lepis, supra, 83 N.J. at 157-59). To determine whether there is a prima facie showing of changed circumstances, the judge must consider the terms of the order he or she is asked to modify, 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. 1958)). "If the trial court finds he or she has made a prima facie case of changed circumstances . . . , the court will evaluate the 'potential earning capacity of an individual' to determine an appropriate support obligation." Schochet v. Schochet, 435 N.J. Super. 542, 549 (App. Div. 2014) (quoting Caplan v. Caplan, 364 N.J. Super. 68, 88-89 (App. Div. 2003), aff'd, 182 N.J. 250 (2005)).
In reviewing a decision to grant or deny an application to modify support provisions, we examine "whether, given the facts, the trial judge abused his or her discretion." J.B., supra, 215 N.J. at 325-26 (citing Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). The judge's decision "'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Id. at 326 (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).
Initially, as the judge found, defendant's 2013 motion papers did not contain an updated CIS, which under Rule 5:5-2 was a sufficient reason to deny the motion. Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991); Terry v. Terry, 270 N.J. Super. 105, 121 (App. Div. 1994). Additionally, the Family Part judge's determination here that defendant failed to make a prima facie showing of changed circumstances was not an abuse of discretion. J.B., supra, 215 N.J. at 325-26. The judge properly compared the facts as they were when the October 2012 order was entered with the facts as they were at the time of the April 2013 motion. See Faucett, supra, 411 N.J. Super. at 129 (citing Sheehan, supra, 51 N.J. Super. at 288). In addition, defendant did not provide any evidence that the minor change in his income as indicated by his 2012 W-2 was substantial and permanent. See Lepis, supra, 83 N.J. at 151. Moreover, defendant pointed to no facts showing that plaintiff's economic situation had changed since the October 2012 order was entered. See Faucett, supra, 411 N.J. Super. at 129 (citing Sheehan, supra, 51 N.J. Super. at 288).
Defendant further argues that the October 2012 order was erroneous because it failed to include plaintiff's correct imputed income and IRA distributions. However, defendant did not appeal that order or make a motion to vacate for reasons listed in Rule 4:50-1. Accordingly, the validity of that order cannot be disputed in this appeal. Fusco, supra, 349 N.J. Super. at 461-62.
Defendant next argues that the judge arbitrarily divided the original $250,000 amount of life insurance coverage by three to determine coverage for the parties' unemancipated daughter, who will likely be emancipated in two years. According to defendant, a remand is necessary for a plenary hearing to determine the appropriate amount of life insurance coverage, which should be no more than his remaining support payments.
The decision to divide the original amount by three was not arbitrary. As the judge explained, the issue of emancipation is fact-sensitive, Dolce v. Dolce, 383 N.J. Super. 11, 17-18 (App. Div. 2006), and there is no fixed time when a child will be deemed emancipated, Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Thus, as the judge appropriately found, one way to sensibly recalculate the original obligation for life insurance for one child would be to divide the original amount by three. The judge's determination here was reasonable and warrants our deference. See J.B., supra, 215 N.J. at 325-26.
Defendant argues that either the daughter is emancipated and his child support payments should cease, or the visitation provisions of the PSA must be enforced. This argument is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
First, defendant did not move to emancipate the daughter, and accordingly, may not raise this issue for the first time on appeal. Selective Ins. Co. of America v. Rothman, 208 N.J. 580, 586 (2012) (noting that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available"). Second, the judge properly exercised his discretion in declining to enforce the visitation provisions set forth in the PSA. The judge's consideration that although the daughter was not legally emancipated, she was of the age to make a choice regarding visitations with her father, was not manifestly unreasonable and will not be disturbed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION