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Lucarella v. Lucarella


February 20, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-243-00C.

Per curiam.


Submitted January 28, 2008

Before Judges Lintner, Graves and Sabatino.

This is a second appeal brought by defendant, Nicholas Lucarella ("the father"), of post-judgment orders entered in this matrimonial case. In the father's first appeal, we issued an opinion on June 8, 2006, which affirmed an order of the Family Part dated September 16, 2005, continuing various conditions upon the father's parenting time with his three minor sons. Lucarella v. Lucarella, No. A-0779-05 (App. Div. June 8, 2006) (slip op. at 3). The present appeal reprises issues that relate to the father's parenting time, and also raises issues of child support.

As we noted in our June 2006 opinion, the parties were divorced in January 2002, through a negotiated Final Judgment of Divorce ("FJD"). The mother received, under the FJD, primary residential custody of the parties' three sons, who are twins born in June 1996 and another son born in November 1992. The father, who is an accountant, agreed to pay the wife child support, which was calculated in 2002 under the state guidelines at $459 per week, including a child care component of $300 per week. Subsequently, the child support was increased through a cost of living adjustment to $524 per week.

Following the divorce judgment, the father's matrimonial attorney was run over by a car in the parking lot of his law office. An ensuing investigation uncovered approximately $70,000 in cash, anabolic steroids and forged identification cards in the father's premises. The father has been indicted for conspiracy to attempt to murder his former attorney, and various other crimes.*fn1 The father remains out on $2.5 million bail and working as an accountant in Clifton. The mother, who also works full-time, and the three sons all continue to reside in Monmouth County.

As we previously noted, the Family Part has maintained detailed supervisory constraints on the father's parenting time with his children. These constraints resulted from several evaluations of the father by mental health experts, who concluded that the father harbors ill feelings towards his former spouse, disparages her in the boys' presence, and poses a risk of flight. Among other things, the trial court's orders specify that the father's parenting time must take place, under supervision, at the Monmouth County Courthouse in Freehold. We upheld those constraints in our June 2006 opinion, concluding that they were justified by "this striking and unusual record."

On June 9, 2006, one day after our first opinion was issued, the father filed a new motion with the Family Part, seeking to vacate or modify the constraints on his parenting time. The father also sought to reduce his child support obligations, contending that his ability to earn a living as an accountant has been impaired as the result of the negative publicity from his indictment and also because of injuries to his back and left leg that he allegedly sustained from a fall in March 2006. The mother filed a cross-motion, generally seeking enforcement of numerous facets of outstanding court orders.

After hearing the arguments of counsel, Judge Ronald Lee Reisner, the judge who has been supervising this matter for several years, denied the father's application and granted most, but not all, of the mother's requests for relief. The judge's dispositions are reflected in two companion orders dated September 12, 2006.

The father appeals the September 2006 orders as they relate to child support and conditions on parenting time.*fn2 In particular, he contends that he is entitled to a reduction of child support under Lepis v. Lepis, 83 N.J. 139 (1980), because of an alleged material change of his financial circumstances. He also contends that the court abused its discretion in continuing to require that his supervised visits take place at the courthouse and in restricting telephone contact with his children.

Having fully considered the present record and the arguments of the parties, we affirm the orders of September 12, 2006, substantially for the reasons cogently expressed in Judge Reisner's written statement of reasons accompanying the orders. We add only a few comments.

With respect to the father's demand for a reduction of child support, we agree with Judge Reisner that he has not shown a legally and factually sufficient change of circumstances to warrant such relief under Lepis and its progeny. As Judge Reisner pointed out, the father's gross annual income, which was $66,856 at the time of the divorce and which was $57,404 as of 2006, has not substantially diminished. By the father's admission, his slip and fall injury only temporarily prevented him from working in his desk job on a consistent basis. Such temporary loss does not require relief under Lepis. See Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). His claim that his business has been harmed by negative publicity is belied by the fact that his income actually increased about $15,000 in 2004, the year after he was indicted. Moreover, the children should not be financially disadvantaged by the collateral consequences of any criminal wrongs the father may have committed, particularly where, as here, the father is not incarcerated. See Halliwell v. Halliwell, 326 N.J. Super. 442, 460 (App. Div. 1999) (recognizing that a parent's commission of a criminal act is voluntary and does not relieve the offender of "the parental duty of child support").

On the expense side, it is apparent that the children continue to require care after school and in the summer while the mother is at work. The father's monthly expenses reported on his CIS form raise considerable questions. We also do not read the terms of the FJD, as does the father, to displace the Lepis standards and require an automatic hearing whenever either party experiences a modest or temporary change in income or expenses.

With respect to the asserted inconvenience of the courthouse for the father's supervised visits, we note Judge Reisner's observations that the courthouse has a ramp for handicapped access, and that the father manages, with the help of others, to travel to his office in Clifton and for doctor's appointments in East Brunswick. We also defer to Judge Reisner's finding that the father has yet to comply fully with the conditions recommended by experts that led to the imposition of restrictions on the father's physical and telephone access to the children.

We will not second-guess the Family Part's application of its discretion and expertise, particularly in a context such as this one involving behavior and motivations that could pose substantial risks to the children. The conclusions of trial judges regarding matters of child custody and parenting time "are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). Although we recognize that the children appear to love their father and want to spend time with him, we leave the conditions of their security and well-being to the ongoing supervision of the trial judge, who has the prerogative to make adjustments from time to time as may be dictated by evolving circumstances.

In sum, we sustain Judge Reisner's September 2006 orders in all respects, mindful of our limited scope of review in Family Part cases. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988).


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