June 20, 2007
WILFREDO CORDERO, PLAINTIFF-APPELLANT,
WANDA MORA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1844-93.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2007
Before Judges S.L. Reisner and C.L. Miniman.
Plaintiff Wilfredo Cordero appeals from an order entered on May 5, 2006, reducing the child support he is obligated to pay defendant from $800 to $500 per week, contending that child support should have been reduced to $50 per week. The Family Part judge conditioned any further reduction of child support on production of certain financial information. Plaintiff contends on appeal that the judge abused his discretion in refusing to apply the Child Support Guidelines, in only reducing child support to $500 rather than $50, and in requiring production of additional financial information. We affirm.
Plaintiff and defendant were married on June 6, 1990, and divorced on June 1, 1994. One child was born of the marriage, Wilfredo, Jr., on March 21, 1993. Plaintiff has fathered four other children with two other women. Plaintiff is a former major league baseball player whose income has fluctuated widely over the years. The judge whose order is the subject of this appeal had handled post-judgment applications in this matter since at least March 2000. As such, he was familiar with the earlier post-judgment proceedings when he ruled on the application now before us.
On March 29, 2000, the judge increased plaintiff's child support obligation from $640 per week to $1,300 per week after vacating two earlier orders, one dated May 27, 1999, reducing plaintiff's child support obligation from $1,300 per week to $800 per week, and another dated November 15, 1999, reducing plaintiff's child support obligation from $800 per week to $640 per week. The judge conditioned plaintiff's right to seek reconsideration upon "production by plaintiff of a C.P.A. audited accounting of his 1999 income."
On July 23, 2003, the judge again denied plaintiff's renewed motion for a reduction in child support because the plaintiff's Case Information Statement (CIS) was incomplete. The judge noted that plaintiff had not yet filed his tax returns for 2000 and 2002 and the copies supplied were not signed, despite the fact that the judge had ordered the filing of tax returns for 1999 through 2002. Without full financial disclosure, the judge determined that he could not reduce child support.
Plaintiff once again sought relief from his child support obligation and on February 16, 2005, the judge reduced his child support obligation to $800 per week. The judge found that plaintiff's adjusted gross income was $624,589, which was substantially less than his 2002 income of $4,061,464. The judge also found this change to be permanent. The following year plaintiff again returned for a reduction in child support.
Plaintiff certified that he "was cut by the Washington Nationals Baseball Team during the 2005 season." He was paid through October 2005, but as of March 28, 2006, had not been successful in obtaining another major league contract. He reported that he had no income and attached his March 27, 2006, CIS as well as his prior CIS, presumably the one dated June 24, 2004, the last one in the record prior to the February 16, 2005, order. The 2006 CIS reported no 2006 income, monthly expenses of $20,048, no assets save a $100,000 Merrill-Lynch account, and no liabilities. By comparison, the 2004 CIS reported 2003 income at $672,392 and average monthly income for 2004 of $49,180. Plaintiff's 2004 monthly expenses totaled $36,393. He reported that he did not know the value of real property owned in Orlando and Puerto Rico, the balance of his joint checking account with his wife at the time, the value of household furnishings, the value of his Baseball Association pension, or the cash surrender value of his life insurance. He did disclose that his Hummer was worth $45,000. His total liabilities were $1,535,800 consisting of a $1,500,000 mortgage on the Orlando property and a $35,800 pool loan. Thus, he reported a net worth of minus $1,490,800.
Defendant opposed the reduction in child support and cross-moved for certain relief not relevant to the issue before us. She certified that plaintiff's prospects for future earnings were unknown, but that he had many career opportunities even if he was not playing baseball. She also noted that plaintiff paid child support for two of his other children in the total amount of $5200, $3100 of which plaintiff had just agreed to in January 2006. She pointed out that plaintiff sought a reduction in child support for Wilfredo, Jr., just the prior year and contended that there was no change of circumstances. Finally, she asserted that he had lied about his assets in the past.
In response plaintiff asserted that he earned $600,913 in 2005 but was unemployed and had only $100,000 left. He stated that his house in Florida had been sold and that he and his wife, who had filed for divorce, split the net proceeds, leaving him with the $100,000. He averred that the real estate in Puerto Rico was taken by his former wife Anna, and that he rented an apartment on a month-to-month basis. He also averred that he did not have to pay support for one of his children in the amount of $2100 because he had a credit against child support that would not be exhausted until November 2006, and that he was renegotiating child support for the other child. Plaintiff's third wife supported his application, averring that the Puerto Rican property had been turned over to plaintiff's first wife by order of a court in Puerto Rico and that their marital residence had been sold, leaving each of them with $345,000.
Following oral argument on the motion and cross-motion, the judge noted that there were issues that were not clear, and defendant orally pointed out the discrepancy between the certifications of plaintiff and his third wife respecting the net proceeds of their marital home. The judge also noted that in the past he had sought information sufficient to permit a review by a forensic accountant to determine what had happened to all of the money plaintiff earned over his fourteen-year baseball career, because it was hard to understand what happened to all of the money. Plaintiff had earned $10 million over four years alone,*fn1 but the judge never received enough information to permit such a review. Neither could the judge understand why plaintiff made no provision for the portion of his life where he would not be playing baseball. He observed that plaintiff's CIS indicated "no" with respect to attaching a full and complete copy of his federal and state income tax returns,*fn2 a response that was not an option.
The judge held "that you just can't submit a Case Information Statement or even one tax return and . . . say well this is all I got, I don't make any money anymore." The judge elaborated:
I can't say [with] a straight face that child support should go from 800 a week to zero . . . and not consider the fact that with 20 million dollars income your client . . . did nothing to prepare for a time when he would not be making money. And that's what you're reporting here, he did nothing. Plaintiff's counsel replied, "That's . . . exactly right." The judge stated,
I think I may be able to arguably lower it to 500 a week and even that would be a gift because quite frankly I don't have the information I need. . . . I need to look at . . . all the time periods. I need proof that your client . . . didn't do anything after making 20 million dollars to . . . prepare for the day in which he was not able to play baseball.
Although plaintiff had submitted information from his accountant back in 2005, the judge was not satisfied with that information and determined that he would lower the child support from 800 . . . to 500. That's consistent with one child is getting right now. And then I'll draft an order that if Mr. Cordero wants more or a further reduction, what he's going to need to submit to me to satisfy that reduction, and it's quite extensive. I don't want to give it to you now, but in addition since he does have the money I want 100% of the child support [arrearages] paid within the next 20 days.
The order entered by the judge required production of seven categories of documents, including all federal, state and Puerto Rican tax returns from the time plaintiff began his baseball career; an accounting of all monies earned since that time; a list of all real estate owned by him since then, whether jointly or solely, including purchase and sale prices, tax records, and deeds; a list of all domestic and foreign investments since that time; copies of all property settlement agreements and post-judgment orders modifying same with respect to plaintiff's three divorces; copies of the most recent child support orders involving plaintiff's other children; and a letter from the Commissioner's Office of Major League Baseball describing plaintiff's current status in the League.
Plaintiff contends on appeal that the judge abused his discretion in refusing to apply the Child Support Guidelines, in only reducing child support to $500 rather than $50, and in requiring production of additional financial information.
"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case. [Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952).]
The exercise of "[j]udicial discretion is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Moreover, the exercise of judicial discretion must have factual underpinning and legal basis. Id. at 110.
Our review of the record in the light of the written arguments advanced by plaintiff discloses that his appellate contentions are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons articulated by the Family Part judge in his oral opinion delivered on May 5, 2006. We add the following.
The scope of appellate review of the fact-finding functions performed by a Family Part judge is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.
Here, the record discloses that there was adequate, substantial, and credible evidence in the record to support the findings made by the trial judge. Plaintiff had very substantial income over a significant period of time. It was entirely reasonable for the judge to find the alleged virtually complete absence of assets and income difficult to believe without proofs beyond the certification and incomplete CIS submitted by plaintiff. It is not the job of the court to laboriously extract relevant information from a litigant petitioning the court for relief. Rather, it is the responsibility of the litigant to present all relevant information to the court. Certainly, very significant questions surround plaintiff's financial situation and it is his obligation to satisfy the court that his application is a bona fide one. The limited reduction in child support was made without prejudice to reconsideration upon presentation of further proofs. The judge's determination was well within the discretion accorded to Family Part judges.