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Scipio v. Drayton

July 1, 2008

MICHAEL SCIPIO, PLAINTIFF-APPELLANT,
v.
DENISE DRAYTON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2428-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2008

Before Judges Sapp-Peterson and Messano.

Plaintiff Michael Scipio appeals from certain aspects of a dual judgment of divorce (JOD) entered on April 18, 2007, "nunc pro tunc [to] [May 24, 2006]." Plaintiff contends 1) that the judge "altered the language of the [JOD] entered upon the record," resulting in a filed version that differed from the parties' agreement; 2) the judge denied him due process; 3) the judge "coerced" him to settle the case and wrongfully refused to recuse himself; 4) the final JOD as entered is inequitable and should be modified; and 5) his counsel provided ineffective assistance. We have considered these contentions in light of the record and applicable legal standards. We affirm.

Plaintiff filed his divorce complaint on May 16, 2005, at the time represented by counsel who he apparently subsequently discharged.*fn1 Defendant Denise Drayton, also represented by counsel, filed an answer and counterclaim. The matter proceeded through various pendente lite applications, and on the trial date, May 24, 2006, plaintiff appeared, now represented by a different attorney, along with defendant and defense counsel.

The judge directed the attorneys to specifically advise him what issues were still contested and which were settled. After a recess, the attorneys re-appeared on the record and advised the judge that they had "resolved" all issues other than "child support." Plaintiff's counsel characterized the agreement as a "package agreement," and that "child support is a factor in that." She then recited for the judge the terms of the agreement as follows: 1) plaintiff would pay alimony of $250 per week for four years; 2) plaintiff waived any interest "he ha[d] under the Weiss v. Weiss*fn2 case in the marital residence that now is not titled in his name"; 3) defendant waived any interest in a new residence plaintiff purchased after the filing of the divorce complaint; 4) both parties agreed to "no additional equitable distribution of any assets, with plaintiff keeping "[w]hatever [he] ha[d]" and defendant keeping "[w]hatever she ha[d]"; 5) both parties agreed to the "joint custodial arrangement that the court already awarded," with both parties having "completely equal parenting time"; 6) plaintiff agreed that his "retirement benefits w[ould] be equally divided by a qualified domestic relations order [(QDRO)]" with each party paying one-half of the preparation costs; 7) both parties waived any right to have their debts equitably shared; and 8) both parties agreed to pay their own counsel fees. The parties also agreed to each take a tax exemption for one of their two children, and alternate on a yearly basis the tax exemption available for their third child.

Plaintiff was then placed under oath and testified that he understood and agreed to those terms, did so voluntarily, was fully satisfied with his lawyer's representation, had no questions about the agreement, and accepted it. Defendant was likewise placed under oath and did the same.

The judge found grounds for the entry of the divorce and then turned his attention to the "issue of child support." The attorneys and the judge engaged in an extensive discussion of the appropriate child support obligations based upon the Child Support Guidelines. Pressler, Current N.J. Court Rules Appendix IX-A and Appendix IX-B (2008).*fn3 Noting a "disproportionate earning level," with plaintiff earning "four times" what defendant earned, the judge concluded he should "deviate from" the Guidelines, and "create a balance of payment based on the disparity in the income yet the sharing of the parenting time with the children." Ultimately, the judge adopted a "tier" child support obligation requiring plaintiff to pay $100 per week based upon an assumed reduction in his income from $104,000 per year to $85,000 per year. If that income increased to $95,000 per year, plaintiff's support obligations were to increase to $110 per week, and if it increased to $105,000 per year, his support obligations would increase to $120 per week. The judge required plaintiff to furnish W-2 income reporting statements on an annual basis to defendant, and ordered that any adjustments could then be made.

The judge directed that the attorneys should place "in [the] judgment that the elimination of the alimony at the end of the term is going to be a change of circumstance which would cause a recalculation of the child support." Plaintiff's counsel was charged with the obligation to forward a proposed JOD.

However, before the JOD was entered, plaintiff moved pro se on November 28, 2006, for a reduction of child support and alimony; defendant cross-moved for entry of the JOD.*fn4 Prior to any ruling on the motion and cross-motion, plaintiff moved on February 15, 2007, 1) to recuse the judge; 2) for "restitution of overpayment of child support"; and 3) for discovery. The parties appeared before the judge again on February 23, 2007.

The judge delayed any consideration of the issues raised by plaintiff's second motion until a future date, and carried defendant's cross-motion until a copy of the May 24, 2006, transcript was produced. The judge denied plaintiff's motion for any reduction in child support or alimony, noting that plaintiff had not demonstrated any change in circumstances. In particular, the judge observed that plaintiff's contention--that he was going to be earning less money because he would be assigned less overtime in 2007--was premature. He told plaintiff, But with the numbers as they appear, and you brought this motion in January, you do not have a basis for reduction based on the fact that the three years of your historical earning are equal to and greater than what it was at the time of the divorce.

When plaintiff persisted in arguing it was unlikely that his earnings would reach those of prior years, the following exchange occurred:

Judge: Are you suggesting to me that for this calendar year, [20]07 . . . that your salary will be[,] your ...


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