Opinion
DOCKET NO. A-3906-12T2
08-08-2014
DAVID T. YOUNGBLOOD, Plaintiff-Appellant, v. ELAINE MARINA YOUNGBLOOD, Defendant-Respondent.
David T. Youngblood, appellant pro se. Elaine Marina Youngblood, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-374-10. David T. Youngblood, appellant pro se. Elaine Marina Youngblood, respondent pro se. PER CURIAM
Plaintiff appeals from an order dated March 8, 2013, that granted his motion for reconsideration of a post-judgment order. The order appealed from reduced plaintiff's alimony and child support obligations and required him to provide health insurance for his son. We affirm but remand for the motion judge to clarify the amount of alimony.
The parties were married in March 1985 and had two sons, one of whom is unemancipated. Plaintiff filed for divorce in February 2010. After both parties' bankruptcy proceedings concluded, trial proceeded on the issues of alimony and child support, all other issues having been resolved by the parties.
In his written statement of reasons, the trial judge reviewed all statutory factors applicable to alimony, N.J.S.A. 2A:34-23(b). As to plaintiff's earning capacity, the trial judge noted that the parties' tax returns reflected plaintiff's adjusted gross income for the following years as $167,817 (2004), $123,765 (2005), $136,301 (2006), $244,478 (2007), $73,053 (2008), and $42,648 (2009). The trial judge considered plaintiff's testimony that his business did well in the early 2000's, reaching its peak in 2007, and that his business suffered in 2008 due to the loss of two major customers and general economic conditions. The judge decided that plaintiff's income for 2005 and 2006 best reflected his ability to earn income in a business he elected to continue. The judge averaged plaintiff's income for those two years to arrive at $130,000 as the income he was capable of earning. He noted that defendant had not worked full-time for twenty years but anticipated graduating with a paralegal certificate in December 2012 and working full-time thereafter. In the Dual Final Judgment of Divorce (JOD), dated March 9, 2012, the trial judge ordered plaintiff to pay permanent alimony of $2500 per month and child support of $185 per week.
Plaintiff did not file an appeal from the JOD. In December 2012, he filed a motion for reduction of his alimony and child support obligations. Defendant filed a cross-motion to require plaintiff to provide health insurance for the parties' son. The motion judge, who had not presided over the trial, denied plaintiff's motion and granted defendant's motion.
Thereafter, plaintiff filed a motion for reconsideration. In support of his motion, he submitted tax returns for the years 2005 through 2012. Although he had not appealed from the JOD, he argued that the trial judge's child support order "was based on inaccurate data and [was] not in accordance with the Child Support Guidelines." The "crux of [his] argument" was that the trial judge had erred in imputing income to him of $130,000 based on his income for 2005 and 2006 and that, from 2008 forward, he had experienced five years of declining income. He stated the five-year average for his income was $33,000, rather than the $130,000 relied upon by the trial court for the JOD.
Plaintiff also argued that the motion judge erred in requiring him to provide health insurance coverage. Citing Appendix IX(A) of the Child Support Guidelines, he stated that such an order was only appropriate "when reasonably priced health insurance" is available, and that neither he nor defendant had health insurance available through an employer.
In his written statement of reasons, the motion judge noted that plaintiff asked the court to view the change in his circumstances based upon the change in income prior to the JOD, when the profits and income from his business began to decline. The judge assessed the evidence presented as follows:
The plaintiff presents evidence that his income has in fact been decreasing over the past several years. He asks that his current income of roughly $27,135.00 be used to recalculate his child support and alimony obligations. The Court rejects the plaintiff's assertion that he earns the above amount. While the Court does find that the plaintiff's income has decreased, the plaintiff's claimed income is simply unbelievable. Instead, the Court has chosen to impute income to the plaintiff in the amount of $107,301.75 annually. The Court calculated this figure using all the available income information from the plaintiff, that is, he [sic] purported earnings for the years 2004-2009 and 2011 and 2012. The income information for 2010 was not found by the Court. The Court averaged the years to impute the plaintiff with an income of $107,301.75. The Court finds this amount to be reasonable in light of the plaintiff's prior earnings, and the Court's rejection of the plaintiff's argument that he only has the earning potential to earn approximately $30,000.00 annually. If, in fact, the plaintiff is only earning $27,135.00, the Court would consider him to be underemployed, and
perhaps he should seek employment in a new industry or field.
The motion judge concluded that a reduction of alimony to "$2,000 per month or $500.00 per week" and a reduction of child support to $174 per week was appropriate.
In this appeal, plaintiff presents the following arguments:
POINT I
THE FAMILY PART ABUSED ITS DISCRETION IN ORDERING PLAINTIFF TO PAY ALIMONY OF $500.00 PER WEEK.
POINT II
THE FAMILY PART ABUSED ITS DISCRETION IN ORDERING PLAINTIFF TO PAY CHILD SUPPORT OF $174.00 PER WEEK.
POINT III
THE FAMILY PART ABUSED ITS DISCRETION IN ORDERING PLAINTIFF TO PROVIDE HEALTH INSURANCE FOR PARTIES' SON.
POINT IV
THE FAMILY PART ABUSED ITS DISCRETION BY MAKING CRITICAL CREDIBILITY JUDGMENTS OF THE PLAINTIFF'S PROOFS WITHOUT CONDUCTING A PLENARY HEARING.
POINT V
THE FAMILY PART FAILED TO CONDUCT A PLENARY HEARING IN ORDER TO RESOLVE GENUINE ISSUES OF FACT REGARDING THE DEFENDANTS CIS AND ACTUAL NEED.
Our review of a Family Part judge's decision on whether a change in circumstances warrants modification of alimony or child support and also on the imputing of income to an unemployed or under-employed spouse is governed by an abuse of discretion standard. See Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); Storey v. Storey, 373 N.J. Super. 464, 470, 474-75 (App. Div. 2004).
Changed circumstances may arise from any one of number of factors, including a decrease in income, that arises after the original judgment. See Lepis v. Lepis, 83 N.J. 139, 151 (1980). The Family Part must also consider whether "changed circumstances have substantially impaired the [spouse's] ability to support himself or herself." Id. at 157. However, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary." Id. at 151. Premature filing of a Lepis motion will justify its denial on the ground that the change has not been shown to be a permanent condition or of lasting duration. Larbig, supra, 384 N.J. Super. at 23; see also Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (Lepis motion was properly denied following similar motion filed nine months earlier).
Plaintiff's argument that he suffered a change in circumstances relies heavily upon a premise that the trial court erred in imputing income to him of $130,000 in establishing his support obligations in the 2012 JOD. However, plaintiff did not appeal from that judgment. His motion for a reduction based upon a change in circumstances did not provide an opportunity for him to challenge the soundness of that income figure. Therefore, the $130,000 imputed income represents the starting point from which the court should determine whether there has been a change in circumstances. See Larbig supra, 384 N.J. Super. at 22-23 (noting that the motion judge "correctly focused on the fact that defendant's motion was filed a mere twenty months after . . . the entry of the judgment of divorce" and correctly concluded that, even if the business was doing poorly as alleged, the change was temporary).
This case presents the unusual scenario in which the appellant obtained relief after filing a motion for reconsideration after his initial motion for a reduction was denied and now complains about the amount of the reduction. Defendant has not filed a cross-appeal from the order fixing reduced support amounts.
Reconsideration is "a matter within the sound discretion of the Court, to be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but
should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid.]
At oral argument on the motion for reconsideration, the only errors identified by plaintiff concerned his claim that it was error to use the date of the JOD as the date from which changed circumstances should be measured and alleged errors in the trial judge's calculations that resulted in the support amounts set forth in the JOD. We note further that, in his statement of reasons for granting the reconsideration motion, the motion judge did not identify what palpably incorrect or irrational basis in his original disposition required correction.
At oral argument on the motion for reconsideration, plaintiff alluded to a written statement of reasons that accompanied the order denying relief. That has not been provided as part of the record on appeal.
Plaintiff's arguments on appeal center on alleged errors in the motion judge's factfinding and calculations and failure to conduct a plenary hearing. However, the mere fact of filing a Lepis application does not compel the court to conduct a plenary hearing; one is necessary where there is a genuine issue of fact to be resolved, Lepis, supra, 83 N.J. at 159, and the movant has satisfied the necessary procedural prerequisites, Palombi v. Palombi, 414 N.J. Super. 274, 290-91 (App. Div. 2010).
[T]o be entitled to a hearing on whether a previously-approved support award should be modified, the party moving for the modification "bears the burden of making a prima facie showing of changed circumstances." Specifically, the party seeking modification of an alimony award "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself."See also Miller v. Miller, 160 N.J. 408, 420 (1999).
[Crews v. Crews, 164 N.J. 11, 28 (2000) (citations omitted).]
In his appeal, plaintiff continues to argue that he presented a prima facie case of changed circumstances, requiring a plenary hearing, based on an alleged change from a date predating the JOD. In granting plaintiff relief, the motion judge apparently found that he had presented evidence of a change in circumstances, a finding that ordinarily would result in a plenary hearing. However, in addition to the erroneous legal premise for his argument, plaintiff has identified no evidence before the motion judge that a change in circumstances since the JOD "substantially impaired the ability to support himself." In light of these failures, we find no abuse of discretion in the motion judge's failure to conduct a plenary hearing.
Against this background, we conclude that plaintiff's arguments that the motion judge abused his discretion in the reductions in support obligations that were granted lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We acknowledge, however, that plaintiff correctly states that $2,000 per month and $500 per week are different amounts and therefore, we remand that portion of the order for the motion judge to clarify the amount of plaintiff's alimony obligation.
Affirmed in part and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION