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Simonelli v. Simonelli

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 23, 2007

DENISE E. SIMONELLI, PLAINTIFF-RESPONDENT,
v.
JOSEPH H. SIMONELLI, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1029-97A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2007

Before Judges Parrillo and Graves.

This is a post-judgment matrimonial matter. Defendant Joseph Simonelli appeals from an order dated June 30, 2006, denying his motion to reduce his child support and alimony obligations and his request for counsel fees. On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT'S DENIAL OF THE DEFENDANT/APPELLANT'S REQUEST FOR A MODIFICATION OF ALIMONY WAS CLEARLY ERRONEOUS UNDER LEPIS V. LEPIS, AS DEFENDANT/APPELLANT HAS SHOWN A CHANGE OF CIRCUMSTANCES[.]

POINT II

THE TRIAL COURT'S DENIAL OF THE DEFENDANT/APPELLANT'S REQUEST FOR A MODIFICATION OF CHILD SUPPORT WAS CLEARLY ERRONEOUS UNDER LEPIS V. LEPIS, AS WELL AS THE CHILD SUPPORT GUIDELINES AS DEFENDANT/APPELLANT HAS SHOWN A CHANGE OF CIRCUMSTANCES[.]

POINT III

THE TRIAL COURT'S REFUSAL TO GRANT A PLENARY HEARING WAS CLEARLY ERRONEOUS AS THERE WAS, AT A MINIMUM, A GENUINE ISSUE OF FACT AS TO THE DEFENDANT/APPELLANT'S ABILITY TO PAY THE SUPPORT OBLIGATIONS[.]

POINT IV

THE TRIAL COURT'S RELIANCE ON THE "LAW OF THE CASE" AND THE DECISIONS OF PREVIOUS TRIAL COURT JUDGES WAS CLEARLY ERRONEOUS AS THE PREVIOUS ORDERS WERE DENIED WITHOUT PREJUDICE[.]

POINT V

THE TRIAL COURT'S DENIAL OF THE DEFENDANT/APPELLANT'S REQUEST FOR COUNSEL FEES WAS CLEARLY ERRONEOUS UNDER R. 5:3-5(c) AND APPLICABLE CASE LAW[.]

After reviewing the record and the applicable law in light of the written and oral arguments of the parties, we conclude that defendant's contentions do not warrant extensive discussion. R. 2:11-3(e)(1). We add only the following comments.

The parties were married in 1985, and they have three children, now ages 15, 13 and 12. On January 20, 1997, with the benefit of counsel of their choice, the parties finalized an eleven-page written agreement (Agreement), which was subsequently incorporated into their judgment of divorce dated March 5, 1997. The parties acknowledged in their Agreement that they signed it freely and voluntarily "without any coercion, duress or undue influence"; they "read and [understood] all of its provisions"; and they considered the Agreement to be "fair, just and reasonable." Pursuant to the Agreement, plaintiff has "legal and physical custody" of the three children, and defendant has "visitation with the [c]hildren on alternate Saturdays from 11:00 a.m. to 6:00 p.m."

With respect to child support and alimony, the Agreement provides as follows:

CHILD SUPPORT AND ALIMONY

4. Commencing December 15, 1996, the Husband shall pay the sum of $4,400.00 per month for the support of the Wife and the Children. The aforementioned sum shall be allocated as $1,100.00 per month as permanent alimony and $1,100.00 per month as child support for each child.

5. The Husband shall pay child support for each child until that child is emancipated. The Husband shall pay alimony until he dies, the Wife dies or the Wife remarries, or cohabits with a male unrelated by blood or marriage.

In his certification in support of his motion to reduce his alimony and child support payments, defendant stated he was "a stock trader by profession," and that his total earnings for 1996 were $72,136. When defendant signed the Agreement on January 20, 1997, he anticipated he would be able to significantly increase his earnings, which he was initially successful in doing. In 1997, defendant earned $92,551.

Defendant also certified that, "there have been eighteen orders in this matter beginning with the [o]rder of September 18, 1997, which is when I first sought modification of the Judgment of Divorce." Defendant is presently employed as a broker by H&R Block, and he earned $68,222 from salary and commissions in 2005. In addition, defendant acknowledged receiving "royalty monies" in the amount of $561.58 from a "modest play" he wrote.

In her reply certification, plaintiff noted that the parties' Agreement had been carefully negotiated, with the benefit of counsel, for several months before it was finalized.

Nevertheless, "[s]ix months after the Agreement was signed, the defendant filed an application to modify its terms and reduce the amount of support he had agreed to pay." Plaintiff also stressed that the court had denied a similar motion by defendant following a plenary hearing on November 22, 2002, and December 3, 2002. Plaintiff alleged that defendant "is on a mission to earn as little as possible" to reduce his support obligations, and she certified that he earns additional income by writing and publishing plays, composing music and lyrics, acting as a puppeteer, and playing "the bass for a local band." Although defendant filed a responding certification, he did not deny these claims.

Following oral argument on June 30, 2006, the motion judge rendered an oral decision, which included the following:

The amount that defendant was earning at the time this agreement was entered into [was] a modest salary for the profession that he has been employed in. He has been a stockbroker since 1986 and even working locally at Ryan Beck as opposed to working in New York where the salaries can be presumed to be higher, $72,000 a year is a fairly modest salary for the profession that the defendant is obviously trained in and has worked in in the past.

There is no excuse offered other than the defendant made an error in entering into this agreement. This argument has been made before several other judges of this court and has been rejected. The argument today is the same argument that was made before numerous other judges and although the defendant is earning somewhat less now than he earned at the time this agreement was struck, it is not significantly less.

And the [c]court notes that rather than focus on the area where the defendant was able to earn the maximum amount of income, he has engaged in what the [c]court will refer to as -- and not in any kind of derogatory sense, but avocations, musical pursuits, play writing and performing arts, activities that may very well be fulfilling to him personally but clearly are activities that are going to result in a substantially reduced income from the income that he was receiving when he negotiated this agreement.

The defendant is certainly free to pursue his dreams and his outside interests, but that pursuit must be with the understanding that his primary responsibility is to the children that he fathered and the obligation that he undertook. While the claim of counsel that it was an error for him to enter into the agreement, the [c]court finds that this argument has been considered and rejected on numerous occasions.

The [c]court finds that to the extent that this defendant is earning less than he did or he anticipated he would when he entered into the agreement, that he is voluntarily [underemployed] as the result of his pursuits outside of his primary area of expertise. And while he is free to pursue those, he is not free to pursue those at the expense of his child support obligations and his alimony obligations.

The motion for a plenary hearing is denied. The motion for modification will be denied. I will not restrain or enjoin the defendant from making further motions. That, of course, is his right if he can show changed circumstances.

In a supplemental written opinion, filed pursuant to R. 2:5-1(b), the motion judge stated that defendant "has immersed himself in the field of entertainment, including play production, writing and musical performances," and that defendant's decision to concentrate on "less lucrative theatrical pursuits as opposed to the brokerage field where he enjoyed financial success was voluntary." Thus, the court concluded that defendant "has failed to establish that he is earning at capacity."

We are satisfied that there is sufficient credible evidence in the record to support the trial court's determination that defendant's present income is not consistent with his earning capacity, Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004), and that he failed to establish a prima facie showing of changed circumstances sufficient to warrant discovery or a plenary hearing under Lepis v. Lepis, 83 N.J. 139, 157-58 (1980). Thus, we affirm substantially for the reasons stated by Judge Guadagno in his oral decision on June 30, 2006, and his supplemental written opinion.

Affirmed.

20071023

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