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Accardi v. Accardi

July 3, 2007

LISA ACCARDI, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
ANTHONY ACCARDI, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No.: FM-14-1147-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 22, 2007

Before Judges Holston, Jr. and Grall.

This is the appeal of plaintiff, Lisa Accardi, from the Family Part's January 23, 2006 order on counsel fees. The court ordered plaintiff to pay defendant, Anthony Accardi, $30,000 of defendant's counsel fees in defending against plaintiff's motion to relocate herself and the parties' three children from Wyckoff, New Jersey to North Carolina. The court's statement of reasons is attached to the order. We affirm.

The parties were married on August 15, 1987. Three daughters were born of the marriage. They are currently ages eighteen, fifteen and thirteen. A judgment of divorce was entered on February 22, 1996. The parties were awarded joint legal custody of the children with plaintiff having primary, physical custody. In November 2004, plaintiff filed a motion to relocate with the children to North Carolina. The plenary hearing to decide plaintiff's application included many days of testimony.

In the court's September 1, 2005 letter opinion, the trial court determined that plaintiff failed to meet her burden of proof that her request for relocation was made in good faith. The judge made her finding after a "review of Plaintiff's finances, her shifting reasons for wanting to relocate and her failure to insure that she could get a job at the salary she needs."

The court stated:

It is undisputed that Plaintiff does not have a job lined up in North Carolina. Plaintiff has made only the most minimal inquiry as to what her job prospects might be in the Raleigh-Durham area. If Plaintiff was as concerned about finances as she claimed, the court would think that Plaintiff would have made more of an effort to assure herself that she could find employment near where she wished to live, at a salary that could provide the financial security she seeks. Her failure to do so, especially in light of the court's expressed reservations on the record on precisely this point, at the time the motion was denied in January 2005, casts doubt on the Plaintiff's proffered reasons for her move.

The court also made credibility determinations regarding plaintiff's testimony:

The court also has concerns about Plaintiff's credibility in regard to her finances. Plaintiff earned $43,026 in 2004. . . . Her total withholdings were $10,550, leaving a net of $32,476. . . . She received, however, federal and state income tax refunds of $8,064. . . . Adding the $8,064 in refunds to Plaintiff's stated net income provides a 2004 net income of $40,540. Accordingly, Plaintiff should have monthly net earned income in 2004 of $3,378. Adding Defendant's $1,919 in child support and $200 in extraordinary expenses provides Plaintiff $5,497 per month net income.

In her December 28, 2004 CIS, Plaintiff lists monthly expenses of $7,372. . . . On cross-examination, however, Plaintiff was forced to concede that several items included among her expenses are [those that] either are not incurred or are not paid monthly. . . .

Deducting these sums from Plaintiff's CIS results in monthly expenses of $5,164 ($7,372-$2,208). . . . The court . . does not conclude that her income and expenses make it "financially ...


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