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Walton v. Visgil

Decided: June 12, 1991.

LOIS WALTON, PLAINTIFF-APPELLANT,
v.
ANTHONY VISGIL, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Chancery Division, Family Part, Burlington County.

King, Long and R.s. Cohen. The opinion of the court was delivered by Long, J.A.D.

Long

[248 NJSuper Page 643] This case provides a method to practically effectuate the salutary pronouncements of Dunne v. Dunne, 209 N.J. Super. 559, 508 A.2d 273 (App.Div.1986) and Zazzo v. Zazzo, 245 N.J. Super. 124, 584 A.2d 281 (App.Div.1990) that children of

divorce are entitled to share in the financial success of their parents.

Plaintiff Lois Walton and defendant Anthony Visgil were divorced in 1982. The judgment of divorce incorporated a settlement agreement which, among other things, provided for a waiver of alimony and for child support for the two minor children of the marriage in the amount of $75 per week per child ($150). The agreement was based upon the representation that Visgil's gross income was $78,000 and Walton's $13,700. The parties later agreed to increase the child support by $50 overall.

In February 1990, Walton moved to increase child support, to compel Visgil to provide insurance for the children and for counsel fees and costs. The trial judge granted the motion to increase child support to $130 per week per child ($260) and awarded Walton a $275 counsel fee. Walton appeals, arguing that a substantial change in the parties' circumstances warranted a greater increase in child support; and that the trial judge abused his discretion by ordering an amount of child support that was less than the child support guideline amount (R. 5:6A) for parents earning a combined total of $52,000 per year, by failing to make specific findings of fact, and by awarding unreasonably low attorney's fees. We agree that the amount of child support awarded was inadequate. Thus, we reverse and remand for a recalculation consonant with the principles we set forth in this opinion.

The certification filed by Walton in support of her motion for increased child support alleged changed circumstances because of the children's maturation (they were 12 and 14 years old), the increase in the cost of living since the parties' divorce in 1982, and Visgil's improved financial circumstances since the divorce. In her certification, Walton stated that, although she has tried to live frugally, she found it increasingly difficult to maintain herself and the children solely on her salary and the child support payments. She noted that she had gone into debt,

including a $14,000 home equity loan to defray the cost of home repairs and ordinary expenses, but that that money is gone and she can no longer afford major repairs to her home or to her car, a 1985 Dodge Omni. In 1989, Walton's gross income was approximately $23,333.77 and her net income was $18,796.02. At the time of the motion in 1990, Walton was a teacher employed by the Haddon Township Board of Education and worked as a camp counselor in the summer. Her gross annual income in 1990 was $26,978 ($25,720 from teaching and a projected $1258 from summer day camp). Walton reported total monthly expenses of $3,086.79. Assets included her home, which she valued at $70,000 and her car, valued at $750. The home is encumbered by a $23,000 first mortgage and a $14,000 second mortgage. Walton reported as other debts a $3,000 conservation loan, $519.48 owed to Strawbridge's and $1,742.12 owed to MasterCard. She had also borrowed money from her parents for the emergency replacement of a furnace.

Visgil is a physical therapist with South Jersey Physical Therapy Associates (SJPTA), a professional corporation which he owns. He did not dispute that his income had increased and that an increase in child support was warranted. He maintained that he had previously made a voluntary increase and had occasionally provided lump sum amounts to assist with specific expenses such as $400 for children's clothing at the change of season. He also questioned Walton's application of child support monies for the children's needs, specifically questioning her home repairs, counselling fees and need for a new automobile and argued that he should have no responsibility for Walton's financial obligations to her second ex-husband from whom she was divorced in 1986.

Visgil stipulated to his ability and willingness to pay child support consonant with the children's reasonable needs, which he estimated to be $200 or $300 per week. He calculated this figure as 1/2 of Walton's budget. In 1989, Visgil's individual gross income was $198,528, net earned income was $126,853.20. His gross household income was $226,929 which included interest,

dividends and his new wife's salary as an administrative secretary in an undisclosed amount. For the three months prior to the hearing, Visgil reported that his gross monthly income was $9,305.20, and his net monthly income was $5,492.84. (His current wife grossed $1,256.93 per month.) He reported total monthly expenses of $8,563.90.

Visgil's assets were his residence, valued at $350,000 (encumbered by a $199,562 mortgage); a home in Avalon, valued at $180,000 (encumbered by a $100,933 mortgage); a Midlantic bank account with an unspecified balance; an account at Delaware Cash Reserve, in the amount of $60,681; and stocks and bonds held by Dean Witter Investments, valued at $86,364. He listed SJPTA as an asset but provided no value. He similarly provided no value for his SJPTA profit-sharing plan and his individual retirement account. He carried life insurance with a cash surrender value of $9,996 and owned three vehicles: a 1989 Ford Bronco, valued at $15,000; a 1989 Toyota, valued at $18,000, and a 1972 Ford pickup, valued at $500. Thus, excluding those assets for which values were not provided, Visgil disclosed gross assets of $720,541. He owed $1900 to Visa and $1200 to Mastercard.

Walton pointed out that, in addition to the omitted valuation of Visgil's assets, that his case information statement did not disclose various personal expenses for which his corporation paid. She also noted that her budget, upon which Visgil was calculating ...


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