Defendant appeals from various post-judgment orders that relate to his efforts to modify his child support obligation.We are unpersuaded by defendant’s arguments and affirm.December 7, 2012
The parties were married in 1993 and had two children, born in 1996 and 1998. They have comparable educational backgrounds.Plaintiff is a certified public accountant. Defendant has adegree in accounting and information systems as well as an M.B.A. with a concentration in finance.At the time they married, defendant earned approximately $44,500, working as a senior electronic data processing auditor
at Carteret Savings Bank. He left Carteret Savings Bank in 1993 to work for American Reinsurance Company, earning approximately $44,560 that year. After his employment was terminated in July
1994, defendant spent several years investigating selfemployment opportunities. In 1996, defendant entered into a business partnership that failed three years later. The parties filed for bankruptcy in 2000.Defendant had difficulty finding employment and enrolled in a program at Chubb Institute that resulted in his obtaining acertificate in client server applications development in 2000.He obtained a job as a software engineer, earning $50,000, but that employment was terminated after only three months.
Thereafter, defendant worked for an off-shore sports betting company for approximately two years. Initially, he earned $1000 per month as a forum moderator. His income rose to $2500 per
month. Defendant left this employment in 2002.
3Plaintiff filed a complaint for divorce in 2003 and defendant filed a counterclaim. In May 2003, defendant obtaineda job at Target, earning approximately $24,500 per year. At the
trial of the divorce action, defendant contended that he was unable to obtain other employment commensurate with his education and experience.
Child support was a disputed issue in the parties’ divorce trial. The court found that plaintiff’s income, “in the low eighty thousands,” was commensurate with her education and
experience. Although the court rejected plaintiff’s contention that defendant was voluntarily underemployed, the court found defendant did not earn an income appropriate to his education and experience. Specifically, the court found that defendant
had the ability to earn more money by either working additional hours or getting an increase in pay. Accordingly, the court
imputed income of $40,000 per year to defendant and required him to pay approximately $18 per week in child support. An amended final judgment of divorce (JOD) was entered in 2005.
Defendant filed two motions for reconsideration, each of
which was denied. He then appealed. This court affirmed thetrial court’s decision in an unpublished opinion, Meccia v.Meccia, No. A-5740-05 (App. Div. Oct. 23, 2008). His petition for certification was denied. Meccia v. Meccia, 198 N.J. 473(2009).
Since the parties’ divorce, defendant moved out of his
parents’ home in 2008, where he was paying $500 per month rent,to an affordable housing unit, where he was paying monthly rent of $946, excluding utilities. His working hours at Target were reduced in January 2009 and he applied for unemployment benefits. His combined income for 2009 from Target and unemployment benefits was approximately $24,000.
In May 2010, defendant filed motions to proceed as an
indigent, to enforce litigant’s rights and to modify his child support obligation. As a result of two Cost of Living
Adjustment (COLA) increases, defendant’s obligation had increased to $22 per week.
In support of his motion to enforce litigant’s rights and
modify child support, defendant submitted a certification in which he stated plaintiff had “received promotions and changed jobs twice, each with increasing responsibilities and compensation.” In contrast, he described his part-time employment and supplied his three most current paystubs.
Defendant stated further that, pursuant to paragraph 51 of theJOD, the parties were required to exchange their income taxreturns on an annual basis for the purpose ocalculating child support. He stated he had provided his tax returns to plaintiff but that she refused to reciprocate. Defendant attached copies
of the JOD, including the shared parenting child support
guidelines; the notice that he was not eligible for extended unemployment benefits; three paystubs; his letter to plaintiff’s counsel; his W-2s for 2009; and plaintiff’s counsel’s response to his letter. He did not submit an updated case information statement (CIS).
Plaintiff filed a cross-motion, seeking an upward
modification of defendant’s support obligation from $22 to $42 per week, and attorneys’ fees and costs. She acknowledged that her income had risen since the last calculation of support but stated that the cost of living and the expenses for their now teen-aged children had also increased. Among the documents submitted in support of her motion was a copy of plaintiff’s
federal income tax return for 2009, which reflected an adjusted gross income of $85,576. Plaintiff stated that she anticipated earning a gross annual income of $96,000. Plaintiff argued that defendant should be imputed income of $52,930, the annual mean
wage of a paralegal in New Jersey according to the Bureau of Labor Statistics because he completed a paralegal course. She supplied the court with a “Child Support Guidelines – Shared Parenting Worksheet” based upon these incomes, which resulted in a support obligation of $42 per week for defendant.
Accordingly, plaintiff asked for an increase in support to that amount.
At oral argument, defendant stated he was seeking a
reduction in child support because he had suffered prolonged unemployment and plaintiff had enjoyed a large increase in income. He contended that “running the schedules” would result in a reduction in his obligation. However, unlike plaintiff, he provided no calculation to support this contention. At oral argument, defendant made the following representations to the court. His unemployment benefits had ceased approximately two weeks earlier. He had “zero” likelihood of obtaining full-time employment with Target or increasing the number of hours he worked for them. Defendant stated he was “actively looking” for additional employment, but
provided no details regarding his job search.1
He was a charity care patient at St. Clare’s Hospital as a result of his income and received food assistance from the Morristown Interfaith Food
Defendant did not provide any documentation of these efforts in support of his motion. He has included a list of “Jobs applied to since April 2010” in his appendix and describes these in his brief as the applications he sent out after completing his paralegal studies program. Since the document is a list of applications “[a]s of 5/31/2011,” it appears that this record was not provided to the trial court in support of defendant’s motion.
Pantry. He was under care for depression at St. Clare’s
Behavioral Health Services and received free discounted
prescription drugs through programs run by pharmaceuticalcompanies.
It was during the course of his colloquy with the court
that defendant presented the court and plaintiff with an updated CIS. According to the CIS, defendant had $72,100 in assets.
Defendant had received approximately $100,000 from plaintiff for his interest in the marital residence. He used $82,000 of the money received from plaintiff to repay loans to his father and brother, although he was not legally obligated to do so. However, he had still failed to pay plaintiff $10,000 he was ordered to contribute to her counsel fees in 2008 following his unsuccessful appeal.
Defendant graduated from a paralegal studies program in April 2010. He told the judge that of the twenty-two students in his class, it was his belief that everyone had obtained employment except for him and a 65-year-old man. Defendant said one of his fellow students was earning $40,000. The trial court denied defendant’s motion for a modification in child support or for discovery, finding he had failed to meet his burden of showing a substantial change in circumstances. The court found that the imputation of $40,000 in income to defendant continued to be reasonable. The court
described defendant’s motion as “a very, very frivolous motion
. . . an insult to the Court and to your ex-wife that you would come in here and ask that $22 a week be reduced.” The court granted plaintiff’s request for counsel fees but denied her motion for an increase in child support.
The court ordered that
defendant pay plaintiff $2756 in counsel fees for motion.
The court further ordered that this amount, along with the priorunpaid counsel fee award of $10,000, be paid through theProbation Department at the rate of $75 per week until the entire amount was satisfied.
Defendant filed a motion for reconsideration on October 13,2010, as well as a motion to remove the COLA from his child support obligation on that same date. Plaintiff cross-moved for attorney’s fees on November 18, 2010. The court denied plaintiff’s and defendant’s motions on December 3, 2010. On appeal, defendant argues that the court erred (1) by FInding that there was no change in circumstances; (2) by not
removing the COLA from defendant’s child support obligation; (3)by converting the previously awarded attorney’s fees into childsupport arrears; (4) by awarding attorney’s fees to plaintiff;
(5) by improperly garnishing defendant’s wages; and (6) by not Plaintiff has not appealed from the denial of her motion.
allowing defendant to correct the record. We are unpersuaded by any of these argumentsWe turn first to defendant’s argument that the trial court
erred in denying his motion to modify child support as the result of a change in circumstances. A party who moves for modification must make “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). “Upon such a showing, a court may order discovery and hold a hearing to determine” the appropriate amount of support. Miller, supra, 160 N.J. at 420
(citing Lepis, supra, 83 N.J. at 152).
The requisite change may be shown “in the movant’s
financial circumstances, or the opponent’s, or a combination of both.” Donnelly v. Donnelly, 405 N.J. Super. 117, 131 (App. Div. 2009). “[A] payor spouse is as much entitled to a reconsideration of alimony where there has been a significant change for the better in the circumstances of the dependent Defendant failed to comply with Rule 5:5-4(a), which requires a movant seeking modification of a support order to include both
the prior CIS and a current CIS appended to the motion.
Accordingly, defendant was not entitled to oral argument and the court could have denied his application for this reason alone. Palombi v. Palombi, 414 N.J. Super. 274, 287-88 (App. Div. 2010). However, the court elected to consider the motion on its merits.
spouse as where there has been a significant change for the worse in the payor’s own circumstances.” Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). When it is argued that the circumstances of both parties have changed, “a movant may make a prima facie showing of changed circumstances under Lepis
by citing a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review.” Ibid. Changed circumstances may also be shown by other facts, such as child maturation.” Miller, supra, 160 N.J. at 420; Lepis, supra, 83 N.J. at 152.
In this case, defendant argues that his earnings had
remained stagnant for the past five years, never rising above $27,688.63, and that it was therefore error for the court to continue to impute income of $40,000 to him.
He supports his argument of decreased ability to pay by citing increases in his expenses, including the doubling of his rent as a result of his decision to move from his parents’ home. He argues further that there was a change in circumstances because plaintiff’s income
had increased significantly. He notes that, in support of her cross-motion, plaintiff included her 2009 federal income tax return, which showed an adjusted gross income of $85,576, which included unemployment benefits of $17,052 and earned income of $71,345.4
Defendant also argued that, based upon a 2010 paystub
from her current employer, plaintiff earns approximately
$106,000.In determining that defendant had failed to show a change in circumstances, the trial court concluded that he remained voluntarily underemployed. At oral argument, defendant admitted he had failed to seek additional part-time employment, even when
he was facing the termination of his unemployment benefits,choosing to spend weeks “researching” for his litigation.
The court noted that defendant’s obligation of $22 per week was “a ridiculously low amount of money” for two children, ages twelve and fourteen: $22 per week in child support is not enough for your ex-wife to give lunch money to your kids to go to school every day. It is not enough to buy them a pair of shoes. It’s not enough to send them to a movie and allow them to have popcorn and soda. It’s not enough to do anything.Maybe to buy a few boxes of cereal. It is de minimis.The court further observed,Even if I were to give you the benefit of
the income that you provided me that you have earned this year, which is about . . .
Plaintiff was not required to provide a CIS or disclose
financial information in response to defendant’s motion until he demonstrated a change in circumstances. Lepis, supra, 83 N.J. at 157. $23,000, . . . and the unemployment benefitsthat you have[,] I can almost guarantee you
that to run those guidelines, [the support obligation] would be much higher than $22 aweek.