Opinion
DOCKET NO. A-1960-11T3
02-28-2013
JOANN DIAMONTE, f/k/a JOANN GALLO, Plaintiff-Respondent, v. DOUGLAS GALLO, Defendant-Appellant.
Kristin S. Pallonetti argued the cause for appellant (Law Office of Steven P. Monaghan, L.L.C., attorneys; Ms. Pallonetti and Steven P. Monaghan, on the briefs). Joann Diamonte, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0584-09.
Kristin S. Pallonetti argued the cause for appellant (Law Office of Steven P. Monaghan, L.L.C., attorneys; Ms. Pallonetti and Steven P. Monaghan, on the briefs).
Joann Diamonte, respondent, argued the cause pro se. PER CURIAM
Defendant appeals from a post-judgment order dated November 18, 2011, which denied defendant's motion to decrease child support and alimony obligations, and granted plaintiff's motion for an increase in child support. The order also denied plaintiff's requests for a modification in the parenting time schedule, defendant's contribution to car insurance, college expenses, and children's spending money. For the reasons that follow, we affirm the order.
I.
The parties were married in 1990 and had two children who were born in 1993 and 1996. The parties entered into a consent order on May 19, 2009, which resolved all custody and parenting issues. This was incorporated into their amended dual final judgment of divorce (JOD) filed November 12, 2009. The JOD provided that defendant pay child support in the amount of $140 per week and permanent alimony in the amount of $288 per week. The JOD also stated that the issue of defendant's income and the amount of alimony would be subject to "evaluation and review after two years." Defendant was the owner of Douglass Gallo Contracting, Inc. and plaintiff waived any interest in the business.
The motion judge, without a plenary hearing, denied defendant's application for a downward modification of his child support and spousal support obligations, finding that defendant had not demonstrated a substantial change in circumstances which warranted modification. Lepis v. Lepis, 83 N.J. 139 (1980). Defendant had argued that his alimony obligation should be "lowered and changed to limited duration alimony." After listening to defendant's contentions, the motion judge characterized the basis for defendant's request as "he feels he's paid the plaintiff enough in alimony."
In denying defendant's request, the judge noted that the two year period set forth in the JOD for a review of its support provisions had not expired when the motion was filed, but more importantly, that defendant had "failed to provide any pay stubs, has provided very minimal documentation, [and] failed to provide prior CISs[.]" "[F]or that reason" the motion judge denied defendant's motion.
II.
On appeal, defendant argues that the motion judge erred in denying his motion for a downward modification of his child support and spousal support obligations and erred in granting plaintiff's motion for an increase in child support.
We turn to defendant's first contention. Defendant has the burden of showing such "changed circumstances" as would warrant relief from the support or maintenance provisions involved. Martindell v. Martindell, 21 N.J. 341, 353 (1956). A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status. Lepis, supra, 83 N.J. at 157. "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. This requires full disclosure of the [obligor] spouse's financial status, including tax returns." Ibid.
Furthermore, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988) (internal citation omitted), certif. denied, 114 N.J. 505 (1989). "[A] court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [ support ]." Miller v. Miller, 160 N.J. 408, 420 (1999).
Moreover, satisfying this threshold does not automatically result in a downward modification of defendant's support obligations. There is no firm rule governing when an existing support obligation has ceased to be "'equitable and fair[;]'" rather, courts are to weigh several factors dependent on the nature of each case. Id. at 153 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). These factors include whether the change in circumstance is temporary or permanent; whether the change was voluntary; whether it was motivated by bad faith or a desire to avoid payment; and whether the change in circumstance renders the payor unable to pay. See Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006) (finding a reduction in income to be temporary); Kuron v. Hamilton, 331 N.J. Super. 561, 572 (App. Div. 2000) (finding the movant's good faith to be an "ingredient" to consider); Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992) (finding that a voluntary change such as retirement may sometimes justify a modification).
Applying these principals to the issue of defendant's application for a modification of his support obligations, we see no reason to disagree with the motion judge's exercise of discretion in denying defendant's request. The date for the two-year evaluation and review period provided by the JOD, while near, had not yet occurred when defendant filed his motions. However, even if evaluation and review was appropriate, defendant did not present a prima facie case for a downward modification because he provided insufficient financial information. As the motion judge pointed out, defendant failed to provide any pay stubs or prior CISs, defendant provided only minimal documentation. Furthermore, defendant only minimally demonstrated one year of decreased income. Defendant did not provide any facts which would suggest this was more than a temporary circumstance. Additionally, defendant provided no facts at all to change the type of alimony from permanent alimony to limited duration alimony. For these reasons we see no error in the motion judge's denial of defendant's motion for a downward modification of his child support and spousal support obligations.
We turn next to defendant's second contention that the motion judge erred in granting plaintiff's motion for an increase in child support. Plaintiff requested and was granted an increase in defendant's child support obligation because the children did not spend 130 overnights with defendant as permitted by the JOD. Plaintiff asserted that the children only spent twenty-six overnights per year with defendant. In his certification, defendant did not dispute the amount of overnights but contended that plaintiff interfered with his parenting time. The motion judge determined that since the children, then ages fifteen and seventeen, were not spending 130 overnights per year with their father, there was a change in circumstances which supported an increase in defendant's support obligation.
It is well-established that trial courts have "broad equitable powers . . . to review and modify alimony and support orders at any time." Weitzman, supra, 228 N.J. Super. at 353; see also N.J.S.A. 2A:34-23. In making such assessments, we are guided by the Supreme Court's holding in Lepis. First, the moving party must make a threshold prima facie showing that "changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157. In considering a proffer of changed circumstances, it is often necessary for the court to delve into the financial status of both parties. Id. at 157-58. When such a showing is made, the court must next determine if a plenary hearing is warranted. Id. at 159. To obtain such a hearing, the moving party must "clearly demonstrate the existence of a genuine issue as to a material fact." Ibid. In making this determination, the court should look to the certifications and supporting documents of the parties. Ibid.
Here, the certifications of the parties do not dispute that the children did not avail themselves of 130 overnights with their father. Defendant's certification blames plaintiff for not "enforcing the schedule with the children about my time with them." The motion judge adjusted defendant's child support obligation to reflect twenty-six overnights per year instead of 130 overnights, and increased defendant's support obligation from $140 per week to $195 per week.
We discern no error in the motion judge's exercise of his broad equitable power in modifying defendant's child support obligation.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION