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Cifrese v. Cifrese

December 7, 2007

ELLEN CIFRESE, PLAINTIFF-RESPONDENT,
v.
LEONARD CIFRESE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-1531-01-S.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 23, 2007

Before Judges Yannotti and LeWinn.

Defendant, Leonard Cifrese, appeals from the October 27, 2006, order of the Family Part denying his post-judgment motion to modify his alimony and child support obligations. He raises the following arguments:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR MODIFICATION OF ALIMONY AND CHILD SUPPORT BECAUSE DEFENDANT'S INCOME HAS DECREASED FOR A PERIOD OF FIVE YEARS.

II. THE TRIAL COURT ERRED BY FAILING TO HOLD A PLENARY HEARING IN ORDER TO DETERMINE IF DEFENDANT'S REDUCTION IN INCOME WAS PERMANENT AND INVOLUNTARY.

III. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S REQUEST FOR A MODIFICATION OF CHILD SUPPORT BECAUSE DEFENDANT'S CHILD HAS COMMENCED ATTENDING COLLEGE AWAY FROM HOME.

IV. THE TRIAL COURT ERRED BY FAILING TO REVIEW DEFENDANT'S CHILD SUPPORT OBLIGATION BASED UPON TRIENNIAL REVIEW

For the reasons set forth herein, we conclude the issues raised in Points I, II and IV are without merit. However, we reverse the trial judge's denial of modification of child support for the parties' elder child who now lives away at college for a significant part of the year; we remand this matter to the trial court for an appropriate modification of defendant's child support obligation for that child.

After a seventeen-year marriage, the parties were divorced by a final judgment entered on November 28, 2001. Two children were born of the marriage. The final judgment incorporated a property settlement agreement that provided for defendant to pay plaintiff permanent alimony of $550 per week and child support of $263 per week. These support obligations were based upon imputed annual income of $110,000 for defendant and $17,500 for plaintiff.

Defendant has worked as an insurance broker since 1995. He brought his first motion to modify his support obligations in 2005, alleging various changes in the insurance industry that caused significant reductions in his earnings. On October 21, 2005, the judge entered an order denying defendant's motion because of his failure to offer sufficient proof of a substantial change in circumstances to warrant modification.

Defendant filed a second motion in September 2006, once again seeking modification of his support obligations based on a claim of changed circumstances in his employment situation. Comparison of defendant's certifications in support of each of these two motions shows they contain identical language describing changes in the insurance industry that he claims are responsible for his reduced earnings. In both certifications, defendant contends: (1) the first company for which he worked, Alliance for Affordable Health, left New Jersey in 1999 due to a large number of claims; (2) he then wrote policies for Union Sponsored Health Plan through associations that, in late 2001, were forced to modify plan benefits and raise rates that reduced his commissions; (3) he "believe[s] the reasons for the rate increase" was "to discourage members to maintain or continue with the policies[;]" (4) due to the "lack of competitive union policy plans,...high cost and reduced coverage," he placed his business in the small group market plans that paid far lower commissions; (5) in 2001 he started to place business with the Martin Agency and NAS Financial who are "master brokers" that pay him commissions for the policies he presents to them; (6) the "insurance field" has become "highly competitive" resulting in a "drop in [his] commission percentages," that would require him to "write triple the amount of new policies to sustain [his] previous income[;]" and (7) he has been trying to write more policies per year by increasing his advertising and marketing but "the high cost of health insurance has discouraged many potential buyers."

We take some time to detail these claims to make the point that not one of them is verified by any supporting documentation. This deficiency was true for defendant's 2005 motion as well. Defendant attached his tax returns for 2000 through 2005 that show fluctuations in his gross earnings from a high of $125,110.00 in 2001 to a low of $67,712.00 in 2005. However, defendant has never provided any documentation of the claims he ...


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