Opinion
DOCKET NO. A-4247-13T4
07-15-2015
EVELYN TERESI, n/k/a EVELYN CORSO, Plaintiff-Appellant, v. ROBERT TERESI, Defendant-Respondent.
Musiakiewicz Law Group, attorneys for appellant (Kevin J. Musiakiewicz, on the brief). Cooper Levenson, P.A., attorneys for respondent (Howard E. Drucks, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-0448-07. Musiakiewicz Law Group, attorneys for appellant (Kevin J. Musiakiewicz, on the brief). Cooper Levenson, P.A., attorneys for respondent (Howard E. Drucks, on the brief). PER CURIAM
In this post-divorce matrimonial case, plaintiff appeals from a November 25, 2013 order reducing defendant's child support obligations, and a May 5, 2014 order denying reconsideration and further directing plaintiff to reimburse defendant overpayments made to her. We affirm.
I.
The parties married in 1991, had two children, divorced in 2006, and entered into a property settlement agreement (the "PSA") in 2007. In June 2012, defendant filed a motion to reduce his support obligations. Plaintiff opposed the motion and filed a cross-motion for additional relief relating to custody and parenting time.
The judge heard oral arguments and issued a written decision finding that defendant "experienced a substantial change in circumstances with respect to his income since the PSA was entered" and entered the November 2013 order reducing defendant's support obligations from $350 a week to $162 a week.
Defendant filed a motion to compel reimbursement of $13,048.66 in overpayments and plaintiff cross-moved for reconsideration. The judge granted defendant's motion and denied plaintiff's cross-motion, entered the May 2014 order directing defendant to pay $137 out of $162 a week in support obligation to offset the $13,048.66 in overpayment by $25 a week, and issued an accompanying written decision.
On appeal, plaintiff argues that (1) the court abused its discretion; (2) defendant did not demonstrate a significant change in circumstances; (3) the PSA mandates consideration of plaintiff's waiver of permanent alimony when modifying child support; (4) the court erred by applying different methodologies to calculate the parties' imputed incomes; and (5) the court erred in calculating the period of retroactive overpayments.
After careful consideration of the record, we are satisfied that plaintiff's arguments lack sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the well-reasoned opinions expressed by the judge. We add the following comments.
II.
We see no error as to the judge's downward modification of defendant's support obligations. The judge carefully considered the parties' contentions, applied the correct law, and properly rejected plaintiff's arguments.
A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such findings will only be reversed when they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We "accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
Pursuant to N.J.S.A. 2A:34-23, support payments "may be revised and altered by the court from time to time as circumstances may require." Such a modification will be made only where the movant has demonstrated "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 150 (1980). "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)).
It is well-established that support orders should be based on an obligor's ability to pay. Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). "There is . . . no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation. Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented[.]" Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006)). Accordingly,
[t]o vacate a trial court's findings in a proceeding modifying alimony, an appellate court must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or it must otherwise be well satisfied that the finding[s] [were] mistaken, or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole.
[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (alterations in original) (citations and internal quotation marks omitted).]
According to the PSA, the parties became free to seek modification of child support obligations after a five-year period, which ended on August 3, 2012, upon a showing of a substantial change in circumstances. The judge found that defendant in fact demonstrated such a change as documented by his social security statement earnings history and pay stubs. Thus, we have no reason to disturb the judge's findings in this regard.
We reject plaintiff's argument that the court failed to abide by the language of the PSA in modifying the child support obligation. We agree with the judge, in his May 2014 decision, that the parties "clearly and unequivocally waived any right to spousal support with a clear understanding that such waiver, for the plaintiff, was based on her receipt of above guidelines child support for a defined period of [five] years." The PSA, however, "does not direct or mandate that the parties' waiver of spousal support is to be a consideration in any modification of child support at the end of the five[-]year prohibition period."
Plaintiff next contends that the judge erred by utilizing different methodologies in calculating the parties' imputed income and failed to consider plaintiff's circumstances when granting defendant's motion to compel reimbursement of overpayment. We disagree and conclude that the methodologies employed were within the judge's discretion.
Finally, the judge did not err in calculating the retroactive modification because he considered plaintiff's circumstances and noted that "in light of the fact that [plaintiff's] income is less than that of [defendant,]" and because plaintiff "is the parent of primary residence of the parties' children, the reimbursement to [defendant] should not be unduly burdensome to [plaintiff]." Thus, the court chose to deduct $25 a week from defendant's weekly support obligations as reimbursement for the overpayment of $13,048.66.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION