Opinion
DOCKET NO. A-3097-09T1
08-30-2011
CINDY WEIS, Plaintiff-Respondent, v. SAMUEL COSTA, Defendant-Appellant.
Samuel Costa, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-200-03.
Samuel Costa, appellant pro se.
Respondent has not filed a brief. PER CURIAM
Defendant Samuel Costa appeals an order of the Family Part denying his motion for a reduction in child support obligations based on a change in his employment circumstances. We affirm.
The parties were married in 1997. They had three children. The judgment of divorce was entered April 14, 2003. The parties entered into a Property Settlement Agreement (PSA), by which defendant agreed to pay limited duration alimony in the sum of $375 per week for a period of eighteen months and child support in the amount of $223 per week until the three children's age of majority. On August 3, 2009, defendant's child support obligation was adjusted to $273 per week, pursuant to Cost-of-Living-Adjustment (COLA), Rule 5:6B. The PSA contained an anti-Lepis clause which states:
The PSA explains that defendant shall pay $300 per week until the commencement of alimony, at which time the amount per week will be reduced to $223.
An antiLepis clause is a provision in a dissolution agreement in which the parties seek to prohibit subsequent judicial modification of support obligations based on changed circumstances. See Smith v. Smith, 261 N.J. Super. 198, 199 (Ch. Div. 1992) (in context of spousal support); Finckin v. Finckin, 240 N.J. Super. 204, 205 (Ch. Div. 1990) (same). An antiLepis clause is enforceable absent unforseeable and extreme circumstances that render the continued enforcement of the agreement unreasonable or unjust. See Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993) (in context of spousal support). Cf. Ordukaya v. Brown, 357 N.J. Super. 231, 240-41 (App. Div. 2003) (holding that the right to child support belongs to the child or children, not to the custodial parent).
Samuel expressly waives all claims, if any, for past, present and future direct or indirect support or alimony payments of any nature whatsoever from Cindy. Samuel also waives any and all future change of circumstances relative to the standards set forth in Lepis v. Lepis, 8[3] N.J. 139 (1980) as a basis for modification of their agreement.
On December 17, 2009, defendant filed an application for downward modification of his child support obligations and did not request oral argument. In his application, defendant argued that his work hours were shortened from forty to thirty-two hours per week resulting in a possible future layoff. The only evidence presented by defendant in connection with his application was a form reporting $884.80 in gross weekly income. Defendant did not attach a copy of his federal tax form or his three most recent pay stubs, as mandated by the form. On January 22, 2010, the Family Part entered an order denying defendant's motion. The trial judge reasoned that:
Aside from fact no financial information was provided for [defendant's] income to enable the Court to consider the application, the language in the interspousal agreement, Article II, page 5, says the defendant waives any and all future change of circumstances relative to the standards set forth in Lepis v. Lepis as a basis for modification.
Defendant appealed. He argues the court erred in: (1) denying his application for downward modification of child support due to lack of financial information provided; (2) improperly applying the anti-Lepis clause to his child support obligation; and (3) misreading Lepis v. Lepis, 83 N.J. 139 (1980).
We decline to address defendant's contention that the trial court wrongfully applied the anti-Lepis clause to his child-support obligation. Instead, we focus on the fact that neither party submitted financial documents for the judge to make an informed decision as to whether there was an actual change in circumstances. "When considering an application to modify support, the moving party has the burden to make a prima facie showing of changed circumstances warranting relief . . . ." Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998). "Whether circumstances have really changed so as to warrant modification requires a court to study the parties' financial condition at the time of the divorce, as well as at the time of the application. Where the change is involuntary, all that is required is an analysis of the alterations in the parties' financial circumstances." Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992) (citations omitted). "Without knowledge of the financial status of both parties, the court will be unable to make an informed determination as to 'what, in light of all the [circumstances] is equitable and fair.'" Lepis, supra, 83 N.J. at 157 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).
In this case, defendant's request for a reduction of child support was based upon his reduced hours at work in addition to a prospective layoff. His claim was that he does not have the ability to meet his current expenses. Despite defendant's contentions, he did not provide his full financial information to the courts. The financial information contained in defendant's appellate appendix post-dated the trial court order and is not properly before us. See R. 2:5-4(a) (limiting record on appeal to papers on file with the court below). Given that defendant failed to present an adequate evidential basis to the trial court upon which to modify his child support obligation, we affirm the order denying his motion to reduce without prejudice to defendant's right to file a subsequent motion with appropriate supporting documents.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION