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Guardiola v. Ellis


December 27, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-452-06.

Per curiam.


Submitted December 12, 2007

Before Judges A. A. Rodríguez and C. L. Miniman.

Kenneth J. Ellis (father) appeals from the April 27, 2007 order that denied his request to recalculate child support arrears and granted Maria Luisa Guardiola's (mother) request to compel the father to pay fifty percent of the college costs of the parties' youngest child in accordance with the final judgment of divorce. We affirm.

The parties were divorced in New York in 1997. They had four children. The oldest three are emancipated. The youngest child is now age eighteen. The judgment of divorce provided in pertinent part that the father pay: support in the amount of $100.11 per week for the four children; a portion of the children's medical expenses; and the mother's child-care expenses. Neither party appealed this judgment. Substantial arrearages of the support obligation developed.

Almost a decade later, on April 27, 2006, the father, then living in Cape May, received a summons from the Chancery Division, Family Part, Cape May County, to appear for a support hearing. Judge John R. Rauh ordered that the father's income be withheld to meet his support obligations and that the father make a lump-sum payment of $5,000. The judge fixed arrearages at $30,567.48. The father did not pay the $5,000 and he was incarcerated. Subsequently, the judge held another hearing and increased the arrearages by an additional $21,879.79 to reflect medical expenses owed to the mother. The judge again ordered the father to pay a lump sum of $5,000 the same day or a warrant would be issued. Two months later, the judge held another hearing. The father did not appear. Judge Rauh issued a bench warrant. The father was again incarcerated for his failure to pay.

On December 22, 2006, Judge Rauh released the father from custody but ordered that : (1) the father make a lump-sum payment of $100.11 by December 29; (2) the father's driver's license be restored; (3) any two future missed payments would result in a bench warrant; (4) the father report to probation weekly; and (5) the father to provide contact information regarding an inheritance from his mother's estate.

In February 2007, the father petitioned the Family Court of New York for a modification of the support order. The New York court dismissed the petition for lack of subject matter jurisdiction because "neither party resides in the State of New York . . . ."

The father then moved in New Jersey to: (1) declare his three eldest children emancipated; (2) dismiss the New York judgment of divorce pending appeal; (3) review the original order for errors; and (4) require the mother to produce documents. The mother cross-moved, seeking an order requiring the father to pay the youngest child's current and future college expenses.

Judge Rauh issued an order accompanied by a written memorandum opinion. He declared that the parties' three eldest children are emancipated and declined to dismiss the judgment of divorce or "review [it] for improprieties." The judge found that he could not modify the child support order contained in the final judgment of divorce because the father did not produce a motion to terminate child support with the requisite Case Information Statement (CIS), proof of income and recent tax returns.

After considering the Newburgh*fn1 factors, the judge agreed with the mother that the father was obligated to pay fifty percent of the youngest child's college education expenses. He denied the mother's motion for pre-payment of all of Kenneth's future college expenses for the college years 2008-2011.

The father moved to review/modify the February 22, 2007 order. On April 27, 2007, the judge denied the motion on the grounds that the father failed to demonstrate any change of circumstances, pursuant to Lepis v. Lepis, 83 N.J. 139, 151-52 (1980). The judge also indicated that the father again failed to provide the court with the CIS, any proof of income or any recent tax returns.

It is from this order that the father appeals. He contends that Judge Rauh: (1) abused his discretion in denying his motion to recalculate child support; (2) erred in denying the his motion to dismiss or correct the final judgment of divorce; and (3) abused his discretion in granting the mother's motion to have the father pay fifty percent of Kenneth's college expenses.

We reject these contentions and affirm substantially for the reasons expressed by Judge Rauh in his April 27, 2007 written decision. Moreover, we note that the father has not submitted a CIS. Thus, he has not demonstrated a change of circumstances in accordance with the requirements of our case law and court rules. See Lepis, supra, 83 N.J. at 157 (holding that the burden is on the party seeking modification to show circumstances have changed); R. 5:5-4(a) (motions for modification shall have appended to it copies of prior and current CIS).


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