September 11, 2007
KAREN A. DIPALMA, PLAINTIFF-RESPONDENT,
ANDREW A. DIPALMA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. FM-05-252-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2007
Before Judges A.A. Rodríguez and Parrillo.
Defendant Andrew DiPalma appeals from a September 7, 2006 post-divorce judgment order of the Family Part denying his motion for a downward modification in child support and awarding counsel fees to plaintiff Karen DiPalma. We affirm.
By way of background, the parties were married on September 20, 1975 and separated twenty-four years later in September 1999. They had five children: Jennifer (born September 20, 1977); Andrew (born May 14, 1979); Stephanie (born June 20, 1983); Bryan (born August 12, 1988); and Vanessa (born May 21, 1999). After separation, defendant began paying plaintiff $600 per week in support. At the time of the final judgment of divorce (FJD) on November 30, 2000, their two eldest children, Jennifer and Andrew, were emancipated.*fn1 The FJD incorporated a property settlement agreement (PSA) dated February 25, 2000, wherein the parties distributed their personalty, bank accounts and vehicles, and plaintiff waived her interest in the couple's only other asset, namely, defendant's pensions with the State of New Jersey and the Carpenters Union. The parties also agreed that plaintiff would have custody of the minor children and defendant's child support obligation would be $500 per week "until all of the children are emancipated." The PSA set defendant's spousal support obligation at $100 per week "until the time of [plaintiff's] death or remarriage."
According to plaintiff, defendant ceased paying alimony shortly after entry of the FJD, even though he claimed a deduction for alimony payments on his federal and state income tax returns for the tax years 2001 through 2003, resulting in the issuance to plaintiff of deficiency notices from the New Jersey Division of Taxation. Plaintiff also claimed defendant discontinued child support payments as of June 2, 2006. Consequently, on July 27, 2006, she moved to enforce litigant's rights, seeking both spousal and child support arrears. Defendant cross-moved to reduce child support because of the "changed circumstance" of his disability due to a May 5, 2004 automobile accident. A Case Information Statement (CIS) filed with his cross-motion lists $45,926 in gross 2005 income, but is otherwise devoid of any corroborating financial information save for a Public Employees' Retirement System (PERS) check stub payable to defendant in the amount of $5,244.14, after deductions for federal income tax and a loan payment.
By order of September 7, 2006, the Family Part judge granted plaintiff's motion to enforce litigant's rights; fixed arrears of $29,000 in alimony and $12,340 in child support as of July 21, 2006; required defendant to provide plaintiff with information concerning his personal injury lawsuit and to correct any and all state and federal income tax returns indicating a deduction for unpaid alimony; ordered counsel fees to plaintiff, set by later order of September 27, 2006 at $5,335.36; and denied defendant's request to reduce his child support obligation. As to the latter, the court determined that defendant failed to demonstrate both (1) the unreasonableness of the PSA's so-called "anti-Lepis" clause pertaining to non- modification of child support and (2) changed circumstances. In his letter opinion of September 7, 2006, the motion judge reasoned:
The next asserted reason is that the "anti-Lepis" clause is against public policy. The defendant correctly points to Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993), as setting forth the appropriate standard. Morris teaches that the parties cannot bargain away the court's equitable powers. However, Morris also teaches that the parties can establish their own standards. Those standards will be enforced unless a change of circumstances have [sic] made the standards unreasonable. The defendant has failed to show that the provision at issue here is unreasonable. As pointed out by the plaintiff, the defendant seeks to "cherry pick" one provision of the comprehensive Property Settlement Agreement. There are portions of the agreement that are beneficial to both parties. There is a relatively small amount of alimony being paid. Also, plaintiff did not receive any of the defendant's pension. Especially in light of the defendant's non-disclosure of the prospects of the pending law suit, as well as the failure to attach a 2005 tax return, there is nothing to indicate that this provision has become unreasonable.
The defendant also asserts that there has been a substantial change in circumstances. Again, according to Morris, the anti-Lepis provision is valid on its face unless the defendant is able to show that it has become unreasonable. Additionally, the defendant has not made full disclosure of his present circumstances.
Defendant moved for reconsideration, reiterating that his pension income, due to disability, of $1500 per month is a "changed circumstance" warranting reduction of child support. By order of November 3, 2006, the court denied the motion for reconsideration, concluding:
However, the [court's] Memorandum [of Decision] did point out certain deficiencies in the defendant's cross motion. Specifically, the court pointed out that the defendant failed to detail the status of his personal injury case and to attach a 2005 tax return. Despite the defendant's arguments to the contrary, the information statement clearly calls for the previous year's tax return be attached. Also, in light of the fact that the defendant was asserting a change in circumstances, which he believed warranted a reexamination of the support issues, it was incumbent upon him to make clear to the court exactly what the status of the personal injury case was. The most recent pleadings have shown what was known to the defendant at the time he filed the cross motion. Also, although not spelled out in the initial memorandum, the defendant initially gave no information whatsoever with regard to the nature of his injuries, the extent of his injuries, whether they impact his ability to work, other than his naked assertion that he cannot. Defendant's most recent submission gives no indication whatsoever that he is unable to work, simply that he cannot drive for more than 1/2 hour.
. . . Insofar as he is seeking a modification of the child support obligation, that is denied again because of both the "anti-Lepis" clause in the original property settlement agreement, as well as the deficiencies previously pointed out in both the defendant's current and previous application.
On appeal, defendant raises the following issues:
I. AMBIGUITIES ARE CONSTRUED AGAINST THE DRAFTER.
II. THE "ANTI-LEPIS" CLAUSE IS AGAINST PUBLIC POLICY.
III. DEFENDANT HAS DEMONSTRATED A SUBSTANTIAL CHANGE OF CIRCUMSTANCES ENTITLING HIM TO A MODIFICATION IN CHILD SUPPORT.
IV. N.J.S.A. 2A:17-56.23a DOES NOT BAR RETROACTIVITY WHEN CHANGE OF STATUS IS INVOLVED.
V. PURSUANT TO RPC 3.7 A LAWYER CANNOT ACT AS A WITNESS.
VI. COUNSEL FEES WERE IMPROPERLY AWARDED.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion and the findings by the court are adequately supported by the evidence. R. 2:11-3(e)(1)(A) and (E). We therefore affirm substantially for the reasons stated by the Family Part judge in his thorough and thoughtful letter opinions of September 7, 2006 and November 3, 2006. As to the issue of counsel fees, we are further satisfied that in both imposing counsel fees and setting the amount, the motion judge complied with the requirements of N.J.S.A. 2A:34-23, Rule 5:3-5, and Rule 1:10-3, and we discern no abuse of discretion.