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Scarpa v. Scarpa

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 27, 2007

KENNETH SCARPA, PLAINTIFF-RESPONDENT,
v.
LINDA SCARPA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Family Part, Bergen County, FM-02-10489-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 3, 2007

Before Judges S.L. Reisner and Gilroy.

Defendant Linda Scarpa appeals from a January 25, 2006 trial court order, denying her application for increased child support and requiring her to repay a $300 per month overpayment to plaintiff Kenneth Scarpa. She also appeals from a March 3, 2006 order denying her motion for reconsideration.

While her appeal of these two orders was pending, defendant filed a motion seeking to require plaintiff to contribute to the oldest child's college tuition, and seeking payment of a percentage of plaintiff's bonuses for the years 1996, 1997 and 1999 and related relief. On May 12, 2007, the judge denied defendant's request for college tuition, for $750 in bonus payments, and for further payments relating to the sale of plaintiff's business, all without prejudice pending our decision of this appeal. She denied the motion regarding a bonus referenced in the Dual Judgment of Divorce on res judicata grounds, since the issue of defendant's right to those funds was litigated and decided by another judge on April 1, 1999. Plaintiff filed an amended notice appealing the May 12, 2007 order.

We affirm all of the orders on appeal, without prejudice to defendant's right to reapply to the trial court for the relief which that court denied without prejudice pending this appeal.

I.

The parties were divorced in 1995. This appeal is the latest chapter in their long-running post-judgment dispute over child support. The background of the controversy was reviewed in detail in our prior opinions and need not be recounted here. In Scarpa v. Scarpa, Docket No. A-3056-03 (App. Div. Jan 3, 2005), we reviewed an order of the trial court denying defendant's application for an increase in support based on changed circumstances consisting of the maturation of the parties' three children. The judge concluded there was insufficient evidence of changed circumstances, but we remanded the matter for more specific findings of fact.

On remand, the trial judge increased child support, using the Uniform Child Support Guidelines as a reference. Plaintiff appealed, and we reversed, holding that "since this was not a Guideline case, there must be a Lepis evaluation taking into account the factors set out in N.J.S.A. 2A:34-23a." See Lepis v. Lepis, 83 N.J. 139 (1980). We remanded the matter for a plenary hearing. Scarpa v. Scarpa, Docket No. A-3056-03 (App. Div. Jul. 11, 2005).

During the second remand, the judge held a plenary hearing at which both parties testified. Following the hearing, the judge placed a thorough oral opinion on the record on December 6, 2005, in which she reviewed the applicable statutory factors and concluded that defendant had not established or quantified any claimed increase in costs due to the maturation of some or all of the children. She also credited plaintiff's testimony concerning the amounts he was already paying for the children's tutoring, car expenses, and other costs. In fact, she noted that defendant's case information statement did not show a change in circumstances in terms of her expenses for the children. Noting the lack of evidence produced by defendant, the judge concluded that

I cannot find a factual basis to grant the percentage increase [previously awarded] or any specific . . . increase. And looking over the factors in the statute isn't [particularly] informative with regard to answering the question. The needs of the children, yes, I think they have gone up but I can't quantify it based on what has been presented before me and I find that both parents are shouldering it [the expense] in a fairly equal way. And by that I mean that the father has at least as much increase in expense.

The judge found that both parties were in greater debt than they were when they divorced, and that they were "both making a little bit more money - not a lot." She also noted that defendant, a teacher, had chosen not to work at another job during the two months of the year that she did not have to teach. This detracted from the credibility of defendant's claims of "financial desperation." The judge concluded, "looking at the proofs that were provided here today I do not have the evidence . . . to say that she's entitled to X-dollars more per month based on the maturation of the children, which unevenly hit her side of the [financial] spectrum."

She noted that the issue of college tuition would need to be litigated separately if the parties could not resolve it.

II.

On this appeal, defendant raises the following points for our consideration:

POINT I: THE COURT ERRED IN FINDING THAT DEFENDANT WAS NOT ENTITLED TO AN INCREASE IN CHILD SUPPORT BASED ON THE MATURATION OF THE CHILDREN.

POINT II: THE TRIAL COURT ERRED IN NOT GRANTING RECONSIDERATION OF THE ORDER OF JANUARY 25, 2006.

POINT III: THE TRIAL COURT ERRED IN THE ORDER OF MAY 12, 2006 BY REFUSING TO ENFORCE THE FINAL JUDGMENT REGARDING THE DISTRIBUTION OF PLAINTIFF'S BONUSES.

In reviewing the trial court's decision following a plenary hearing, we will not disturb the trial judge's determination so long as it is supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular deference to the court's credibility determinations and to the Family Part's expertise in matrimonial cases. Id. at 412.

Applying that standard, we find no basis to disturb the trial judge's determination that defendant did not produce sufficient evidence to support her claim of changed circumstances under Lepis, so as to entitle her to an increase in child support. Defendant's arguments to the contrary rest in large part on her contention that the trial judge, and we, should revisit an order entered by Judge De La Cruz on December 11, 2000, reducing defendant's child support because she no longer had child care expenses. Defendant did not appeal that order, and may not obtain review of it now under the guise of an application to increase support. Moreover, when we remanded the matter for a plenary hearing, it was with the expectation that defendant would produce evidence, not merely arguments of counsel, to support her economic claim. We find no fault with the trial judge's conclusion that defendant failed to produce such evidence.

We also find no abuse of discretion in the court's decision to require defendant to repay the increased support to which she was not entitled. Nor can we ascribe error to the trial court's refusal to revisit economic issues dating back more than ten years, when defendant had an opportunity to litigate those issues, and did litigate them, in a 1999 proceeding before Judge Russello.

Affirmed.

20071227

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