Opinion
DOCKET NO. A-0087-14T2
08-31-2016
JANE E. MAYER, Plaintiff-Appellant, v. DAVID A. MAYER, Defendant-Respondent.
John D. Murray argued the cause for appellant (Murray & Murray, attorneys; Mr. Murray, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0372-06. John D. Murray argued the cause for appellant (Murray & Murray, attorneys; Mr. Murray, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff Jane E. Mayer appeals from an August 1, 2014 order denying her motion for termination of her child support obligations. We reverse and remand for further proceedings.
We discern the following facts from the record. Defendant and plaintiff were married in 1986. The parties have two children, a son born June 6, 1994, and a daughter born April 24, 1996. In 2006, plaintiff filed for divorce.
In the same year, plaintiff suffered a subarachnoid hemorrhage because of a ruptured brain aneurism. During emergency brain surgery, plaintiff suffered a stroke. Plaintiff was expected by both parties to work after her recovery. The parties entered into a settlement agreement that reflected this plan. Plaintiff was given rehabilitative alimony in a lump sum payment of $10,000 payable from the defendant's half of the proceeds from the sale of the marital home. Defendant had been employed during the marriage, but lost his job prior to the divorce and was seeking new employment.
The parties were both represented by counsel and their final agreement was incorporated into the Amended Dual Judgment of Divorce (AJOD) entered on March 13, 2007. The AJOD reflects that the alimony and child support payments were based on an imputed income of $88,000 for defendant and a $12,000 income for plaintiff. In addition to the rehabilitative alimony, plaintiff was to receive permanent alimony of $3 85 per week from defendant. Defendant was also required to pay child support to plaintiff of $238 per week. At that point, the two children resided primarily with the plaintiff although the parties had joint custody.
On September 11, 2008, the parties' daughter moved in with defendant, and he applied for a reduction in alimony and child support, among other things. The trial judge, in a comprehensive written opinion, denied all of defendant's requests except for recalculation of the child support as a result of the change in the daughter's residence. Plaintiff was ordered to pay defendant seventy-eight dollars per week for support of the daughter which was offset by his obligation to pay her alimony and support for the son.
On July 2, 2013, defendant's child support obligation was terminated after the parties' son failed to enroll in college, and defendant's alimony obligation was terminated following plaintiff's remarriage. The July 2, 2013 order continued plaintiff's seventy-eight dollars per week child support obligation. Plaintiff claimed she had no income and the order stated:
The parties shall exchange current and prior CIS statements with all attachments; proof of income and assets, including but not limited to federal and state tax returns, 1099s, and W-2s for 2011 and 2012, and three most recent pay stubs within thirty (30) days of the date of this [o]rder to recalculate child support payable to [d]efendant from [p]laintiff for [the daughter]. Any adjusted amount as a result of such recalculation shall be retroactive to February 22, 2013.
Plaintiff's counsel sent two letters to defendant's counsel requesting defendant consent to terminating plaintiff's child support obligation, but defendant's counsel never responded. Plaintiff admits to not filing the CIS documents within thirty days as required by the July 2, 2013 order. However, on December 12, 2013, the parties went before a hearing officer, and plaintiff submitted a CIS at the hearing. The CIS stated plaintiff was unemployed and disabled.
Plaintiff filed a motion requesting plaintiff's child support obligation be terminated. A different judge denied plaintiff's motion to terminate her child support obligation in an order dated August 1, 2014. The order continued her seventy-eight dollars per week child support obligation in addition to a thirty dollars per week arrears obligation. The judge explained in his statement of reasons that plaintiff's child support obligation would not be terminated because she failed to comply with the July 2, 2013 order requiring the CIS filing. The judge did acknowledge plaintiff submitted a CIS on December 12, 2013, but found no change in circumstances to support a modification of her child support obligation.
Plaintiff had certified she was unemployable as a result of her brain injury; however, the trial judge concluded plaintiff's claimed disability was not new. The trial judge stated plaintiff suffered her injury and was aware of her medical condition in 2006, before the judgment of divorce was signed.
On appeal, plaintiff argues the trial court erred in denying her May 1, 2014 motion to terminate child support. She contends her inability to be employed due to her disability and the termination of her alimony demonstrate a prima facie showing of changed circumstances. Plaintiff asserts the second judge ignored the first judge's order requiring both parties submit CIS documents "to recalculate child support payable to [d]efendant from [p]laintiff," which was to be a retroactive calculation.
Plaintiff also contends the second trial judge erred by denying relief based on plaintiff's failure to submit the CIS documents as required by the July 2, 2013 order. Plaintiff argues her attempts to settle the case via letters to defendant showed she did not ignore the trial judge's order but was actively trying to resolve the issue. She argues the CIS she filed in December 2013 showed she no longer had income due to unexpected permanent effects of her brain injury that were not anticipated when she entered into her settlement agreement.
"When reviewing decisions granting or denying applications to modify child support, we examine whether, given the facts, the trial judge abused his or her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). The 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 Jacoby, supra, 427 N.J. Super. at 116).
As an initial matter, plaintiff requests we exercise original jurisdiction in adjudicating her claim. Rule 2:10-5 states "[t]he appellate court may exercise such original jurisdiction as is necessary to the complete determination of any matter on review." We discourage the use of original jurisdiction if additional fact finding is required. Hansen v. Hansen, 339 N.J. Super. 128, 143 (App. Div. 2001); see also Pressler & Verniero, Current N.J. Court Rules, comment on R. 2:10-5 (2016) (stating "it is clear that resort [to original jurisdiction] by the appellate court is ordinarily inappropriate when fact-finding or further fact-finding is necessary in order to resolve the matter").
Here, we decline to exercise original jurisdiction because additional fact finding is required. See State v. Francis, 191 N.J. 571, 594 (2007) (stating in lieu of exercising original jurisdiction, the better practice is to remand to the trial court to determine the relevant issues).
Under Rule 5:6A, the child support guidelines set forth in Appendix IX of the New Jersey Court Rules explain the procedure "when an application to establish or modify child support is considered by the court." See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at www.Gannlaw.com (2016) (stating gross income for the purpose of calculating child support includes alimony).
Child support obligations are subject to modifications based on changed circumstances. Lepis v. Lepis, 83 N.J. 139, 150-51 (1980). "A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." Id. at 157. The trial "court must decide whether to hold a hearing." Id. at 159.
Here, we conclude the trial judge erred in denying plaintiff's motion to terminate her child support obligation without a hearing. The trial judge abused his discretion in continuing plaintiff's child support obligation without findings as to her employability, the effect of the alimony loss, and whether her brain injury had become more symptomatic. The conclusion there were no changed circumstances was without support in the record.
The judge's decision implies plaintiff is employable. See Larrison v. Larrison, 392 N.J. Super. 1, 19 (App. Div. 2007) (concluding income can be imputed to a parent for child support when a parent without just cause is voluntarily unemployed). And it is true plaintiff's injury occurred before the AJOD was entered. However, this finding does not support the conclusion plaintiff's condition had not worsened as plaintiff argued. Plaintiff attached to her certification a letter from her doctor stating she was no longer able to work because of her brain injury. The trial judge made no mention of the doctor's letter in his reasoning. We also note plaintiff was never required under the AJOD to pay child support as both children resided in her home. Only when the parties' son did not go to college and their daughter moved from plaintiff's home to defendant's home did the plaintiff become obliged to pay. Additionally, the trial judge had access to plaintiff's CIS from December 12, 2013. The CIS clearly stated plaintiff had zero income upon her alimony terminating.
We do not suggest what the outcome should be in this matter. We do conclude a hearing is required to make findings as to whether plaintiff has become unemployable as a result of her brain injury or is capable of working, and what her child support obligation should have been from February 22, 2013 until now in light of the alimony termination and her financial situation, including whether any level of income could fairly be imputed to her.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION