September 5, 2008
TIMOTHY B. CASSIDY, PLAINTIFF-APPELLANT,
MARGARET CASSIDY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1213-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2008
Before Judges Sapp-Peterson and Messano.
In this pro se appeal, plaintiff, Timothy Cassidy, appeals from portions of three orders dated March 5, March 13, and May 18, 2007 issued by the Family Part. The orders denied plaintiff's motion to reduce alimony and child support, required that support payments be made payable through the Monmouth County Probation Department, denied plaintiff's request that defendant assume responsibility for health insurance coverage for their children, and denied plaintiff's request that defendant return personal property of plaintiff, including lithographs, and a key and pendulum to his mother's clock.
We relate the facts and procedural history only to the extent relevant to the issues on appeal. Plaintiff and defendant were married on October 16, 1986. Two children were born of the marriage. The parties entered into a Property Settlement Agreement (PSA) on February 28, 2005, which was subsequently incorporated into the Final Judgment of Divorce (JOD) that was entered by the court on May 2, 2005. After the JOD was entered, the parties amended the PSA on May 24, 2005. Under the terms of the PSA, plaintiff agreed to pay $2,700 in monthly alimony and $1,800 in monthly child support. The PSA acknowledged that plaintiff was self-employed and that his income since calendar year 2001 to the present has been both inconsistent and insufficient as a basis for the support referenced herein . . . . Therefore, the parties acknowledge that obligation and payments for spousal support and alimony as referenced herein will be made on a "best efforts" basis and are dependent on the Husband's receipt of sufficient income to make said payments.
An additional provision provided that
[s]hould the husband's income be less than Fourteen Thousand Dollars per month ($14,000) for six consecutive months, he will then be granted complete and unlimited access to the residence, primarily the basement of said residence for part time utilization as an office and residence when the Husband is in the general vicinity.
Should the husband not be granted access to the residence by the Wife as defined herein for any reason, support and alimony payments will be reduced to Three Thousand Dollars per month ($3000) the month after said access is denied. Should the Wife at any time sell the residence located at 2 Westminster Drive, Colts Neck, New Jersey then alimony and support shall be reduced to Two Thousand Dollars per month ($2000.00) until the youngest child is 19 years of age.
On December 26, 2006, defendant filed a motion to change custody and visitation arrangements and to enforce litigant's rights. One of the contentions raised by defendant was that plaintiff was in "TOTAL default of every item he agreed to in our original Divorce Agreement[.]" He told her that all payments to her in 2005 were not support payments but loan repayments, and he failed to pay any support of any kind in 2006. Plaintiff opposed the motion and cross-moved for a reduction in child support and alimony.
In his certification in opposition to the motion and in support of his cross-motion, plaintiff detailed his unstable self-employment history in the real estate and nursing home management industries from approximately 1988 through the JOD, and continuing post-divorce. Plaintiff attributed the decline in his success in these markets to the real estate drought and changes in the Medicare program. He also detailed his personal health issues that affected his earning capacity, including three recent surgeries. The first such surgery occurred in May 2005, when plaintiff underwent reconstructive surgery for an Achilles tendon. He subsequently developed an infection in the tendon and required emergency surgery in September 2005. Five months later, in February 2006, he underwent right shoulder surgery for a complete rotator cuff tear. Plaintiff explained that his ongoing medical condition affected his ability to earn the income that he had previously earned and constituted "a substantial ongoing chan[g]e in circumstances since executing the Property Settlement Agreement." He advised the court that he had a pending application to receive permanent disability under Supplemental Security Income (SSI).
Plaintiff also acknowledged that he had moved out of the former marital home but plaintiff claimed he did so because "[b]y May 2006, [defendant] made my life miserable in utilizing the home [he] had a right to use as clearly stated in [the PSA]." According to plaintiff, by the fall of 2006, defendant "threw out many of [his] clothes in the trash. . . . Before and thereafter she threatened to destroy or sell [his] personal belongings and to pour water in [his] computer, which was the basis of [his] work efforts[.]" As a result of these actions and other conduct by defendant, plaintiff stated he "had no choice but to move unannounced[.]"
On March 5, 2007, after hearing oral argument, the court entered an order that: (1) denied defendant's request for full custody; (2) directed that support be paid through Probation; (3) ordered the establishment of a payment plan for plaintiff to pay on all past due credit cards, including an Emerge credit card that plaintiff used after the divorce; (4) required reimbursement to defendant for certain medical and dental costs she incurred on behalf of the children; (5) prohibited plaintiff from entering the former marital home and from having any contact with defendant's family; and (6) ordered plaintiff to remove his name from the deed. With respect to plaintiff's motion, the court denied his request to reduce child support and alimony to $428 per month, but granted his motion to modify the duration of his alimony and support obligation to the time when the youngest child reached twenty-one years of age. The court also denied plaintiff's request that he only be responsible for health care insurance for himself.
In denying plaintiff's motion for a reduction of spousal and child support, the motion judge found no changed circumstances that warranted a modification of his support obligation:
This was not a guidelines case. [Plaintiff] has failed to show any change of circumstances. And he works in a business where his income is sporadic. It was that way at the time of the divorce, less than two years ago. And he has not shown any sort of substantial and permanent change of circumstances that way.
On March 13, 2007, the court entered an amended order directing that plaintiff's alimony obligation would be fixed at $2,700 per month and his child support obligation established at $1,800, in accordance with the PSA. The judge set the total alimony and child support arrears at $30,904.84, effective March 5, 2007.
Thereafter, plaintiff moved for reconsideration, arguing that he could "only conclude that the financial evidence was either not reviewed . . . or ignored by the Court based on both the Court's statements and the failure of the Court to reference a single exhibit of many presented by the [plaintiff] to the precise topics of reduced circumstances due to a change in the type of self[-]employed work, the reduced income personally and of the [plaintiff]'s Company." He maintained that his income was higher before because he was the operator of the nursing home, and now he worked only as a consultant. He claimed that he had made dozens of applications for employment but could not obtain a job because he did not have a bachelor's degree. He also alleged that his physical impediments prevented him from obtaining employment as a laborer. He included a Case Information Statement to demonstrate his diminished earnings, which showed an income of $31,086 for 2005 and 2006. His corporate tax return reported an income of $61,078 with a loss of $62,047 for the year 2006. Prior to the return date of plaintiff's reconsideration motion, defendant filed a second motion to enforce the JOD and the court's March 5 and March 13, 2005 orders.
On May 18, 2007, plaintiff appeared for oral argument. Defendant did not appear and the record does not reflect whether defendant had notice of the proceeding and waived an appearance. In any event, after considering plaintiff's arguments, the court denied plaintiff's motion in all respects except that the court advised plaintiff that it would give him "90 days to submit proof that [he has] requested readmission to the marital home, and that that has been denied." The court concluded that "[i]f that is produced to this Court's satisfaction, I will reduce the support allocation to $3,000 effective the date of the filing of your original motion."
Plaintiff filed a notice of appeal on July 5, 2007. By letter dated August 22, 2007, the court informed plaintiff that despite his filing of an appeal, the court retained jurisdiction to enforce prior orders. The court stated further:
Since your letter to Mrs. Cassidy indicates that the marital home may have been sold, this court will allow you an additional 60 days to submit proof to this court that you have either sought readmission to the marital home and the defendant has denied your request or that compliance with that provision of the Property Settlement Agreement is impossible because the former marital home had been sold. This proof must be in the form of a certification with some proof of either your compliance or the impossibility of your compliance. There will be no further extensions to this order.
On October 3, 2007, after a hearing, the court entered an order enforcing its prior order and noted that as of October 2, 2007, Probation Department records indicated plaintiff's child support and alimony arrears totaled $60,204.84.*fn1 Six days later, on October 9, plaintiff hand-delivered a letter to the court that included a certification from plaintiff advising the court that defendant informed him on July 1, 2007 that she and the children had moved out of the marital home and that on July 18 and September 21, 2007, he had forwarded letters to defendant requesting readmission to the marital home and that defendant failed to respond to either letter.
Thereafter, plaintiff sought emergent relief before this court seeking a stay of the court's March 5, March 13, May 18, and October 3, 2007 orders, which we denied on October 31, 2007. On January 7, 2008, plaintiff sought additional relief before this court, specifically, an interim consent order to remand the matter to the trial court so plaintiff could make a motion for entry of an interim consent order. We granted the motion.
On January 25, 2008, on remand, the trial court entered a consent order (Consent Order) as an amendment to the PSA agreed to by both parties. The Consent Order provided in pertinent part that the parties (1) agreed to reduced alimony and support payments of $1,800 per month and $200 per month for past due obligations, (2) recognized certain payments made by plaintiff, and (3) declared the $2,000 payments per month were to be made on an interim basis as defined pending this appeal.
On appeal plaintiff raises the following points for our consideration:
PLAINTIFF HAS SATISFIED THE SEVEN[-]PRONG TEST SET FORTH IN CONWAY V. CONWAY*fn2 TO ESTABLISH A CHANGE IN CIRCUMSTANCES WARRANTING MODIFICATION OF SUPPORT AND THE TERMS OF THE PSA.
A. CONWAY SEVEN FACTOR TEST
1. MOTIVES (FACTOR 1)
2. TIMING (FACTOR 2)
3. PAYOR'S ABILITY TO CONTINUE TO PAY AND REASONABLENESS (FACTORS 3 AND 5)
4. DEPENDENT SPOUSE[']S ABILITY TO PROVIDE FOR HERSELF (FACTOR 4)
5. PARTIES' EXPECTATIONS (FACTOR )
6. OPPORTUNITY AFFORDED TO DEFENDANT (FACTOR 7)
THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF DID NOT DISCHARGE HIS DEBT OWED TO DEFENDANT UNDER THE PSA RELATING TO CREDIT CARDS.
A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This is especially true in family courts, which have "special jurisdiction and expertise in family matters." Id. at 412. "Therefore, an appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Similarly, a decision regarding modification of support obligations due to changed circumstances "rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005)). On appeal, the court should not disturb that decision "absent an abuse of discretion." Id. at 23.
Against this standard, we first note that it is a long-established policy in New Jersey to favor consensual agreements made to resolve marital controversies. Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). "The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistently with their post-marital responsibilities." Ibid. Therefore, "'fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Id. at 193-94 (quoting Smith v. Smith 72 N.J. 350, 358 (1977)).
Separating spouses may agree to provide more support than required by the child support guidelines. The guidelines "provide the court with economic information to assist in the establishment and modification of fair and adequate child support awards." Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A para. 1 to R. 5:6A at 2283 (2008). However, "nothing in the law, and no principle of public policy prevents a parent from freely undertaking to support a child beyond the presumptive legal limits of parental responsibility." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). "In such an instance, the parental obligation is not measured by legal duties otherwise imposed, but rather founded upon contractual and equitable principles." Ibid.
Nonetheless, we acknowledge that it is equally well-settled that "[s]pousal support agreements are always subject to modification pursuant to N.J.S.A. 2A:34-23[,] upon a showing of changed circumstances." Deegan v. Deegan, 254 N.J. Super. 350, 354 (citing Lepis v. Lepis, 83 N.J. 139, 145 (1980)). The party seeking modification "has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes, supra, 117 N.J. at 504 (citations omitted).
The circumstances that may warrant modification of a support obligation are not finite. The Supreme Court has found that a decrease in the supporting spouse's income, subsequent employment by the dependent spouse, or the onset of a disability or infirmity after the original judgment are examples of factors that could lead to a modification in support obligations. Lepis, supra, 83 N.J. at 151.
In particular, we have previously recognized seven factors to consider when reviewing a decrease in an obligor's income for modification purposes. Kuron v. Hamilton, 331 N.J. Super. 561, 571 (App. Div. 2000). Those factors include: (1) the motives of the payor; (2) the timing of the conduct that brought about the reduction in income; (3) the payor's ability to meet the mandated support obligations even after the reduction in income; (4) the ability of the payee to provide for himself or herself; (5) the reasonableness of the payor's actions; (6) the reasonable expectations of the parties at the time of the agreement; and (7) the opportunity given to the dependent spouse to prepare to live on the reduced support. Ibid.*fn3
A court may reject requests for modification based on circumstances which are only temporary, voluntary or which are expected but have not yet occurred. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950); Lepis, supra, 83 N.J. at 151 (observing "[c]courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred."); Caplan v. Caplan, 182 N.J. 250, 268 (2005). In Larbig, supra, 384 N.J. Super. at 22, we held the trial court correctly refused to find changed circumstances when defendant failed to demonstrate that the decrease in his income from his private business was "anything other than temporary."
Here, the parties acknowledged the erratic nature of plaintiff's income in the PSA, as well as the fact that it had substantially decreased since 2001, which accounted for the "best efforts" provision as well as plaintiff's right of re-entry into the marital residence. Nonetheless, plaintiff's proofs to the court did not include competent evidence establishing changed medical circumstances or his best efforts to earn income sufficient to warrant a modification of his support obligation for those reasons.
It is undisputed that plaintiff's obligation to pay $4,500 in monthly support is tied to his "'best efforts'" and "are dependent on the [plaintiff's] receipt of sufficient income to make said payment[.]" While plaintiff presented his individual and corporate tax returns to the court that reflect the extent of his income, plaintiff did not present one document to support his claim that his decline in income was "substantially due to my personal health issues that included three operations between May 2005 and February 2006 and an extended hospital stay as defined hereinafter." Nor did he produce any evidence supporting his statement that he had "made dozens of [employment] applications[,]" or copies of documents that reflect employers' responses to his "dozens" of applications.
The January 4, 2007 letter plaintiff provided to the court from his treating physician, Dr. Barbara E. Courtney, M.D., under whose care he had been since 2000 for a number of conditions, provided a history of plaintiff's medical conditions. In the letter, Dr. Courtney made no diagnosis of any condition that placed limitations upon plaintiff's employment abilities. The letter confirms, however, that the medical conditions about which plaintiff complains, with the exception of the Achilles tendon and rotator cuff surgeries, existed years before the time the parties entered into their PSA. Dr. Courtney's letter concludes by stating, "At this point, I am not sure where these chronic and medical problems leave Mr. Cassidy . . . . I am not aware that Mr. Cassidy is going to pursue disability procedures." In addition, correspondence dated March 12, 2007, from the New Jersey Department of Labor and Workforce Development, Division of Disability Determination Services, advised plaintiff that additional evidence was needed in order "to process [his] claim for disability under the provisions of the Social Security Act."
Without competent medical evidence, plaintiff's claim that "[w]ith physical issues including pain in typing or lack of experience, I am not qualified for other white collar jobs or incapable of physical labor including time on my feet" are simply bare assertions. Likewise, in the absence of any documents demonstrating plaintiff's employment efforts, his claim that he has engaged in "best efforts" to meet the support obligations to which he agreed are unsupported by the record.
Despite the absence of changed circumstances premised upon his physical disability and reduction in income, we nonetheless conclude that a remand is necessitated for further proceedings. The trial court's decision did not reflect whether it considered defendant's full-time employment commencing in 2006 as constituting changed circumstance sufficient to warrant modification of the PSA. Without any factual findings on that issue, we are unable to engage in meaningful appellate review. See In re Civil Commitment of J.P., 393 N.J. Super. 7, 16 (App. Div. 2007).
Moreover, in its August 22, 2007 letter, the court gave plaintiff an additional sixty days in which to present proof that he was either denied access to the marital home or that the premises had been sold. The court specifically directed that the proof would have to be submitted in the form of a certification. Defendant's October 9, 2007 certification, although submitted after the October 3 hearing, was submitted within the sixty-day time period extended to plaintiff by the court's August 22 letter. The certification referenced two letters sent to defendant requesting readmission to the marital home and plaintiff's certification that defendant had not responded to either letter. We are satisfied that plaintiff complied with the court's direction and is entitled to a hearing for the purpose of determining whether a reduction in support is justified due to defendant's sale of the marital residence or refusal to permit plaintiff access to the premises in accordance with the PSA.
The March 5, 13, and May 18, 2007 orders denying a reduction in support and alimony on the basis of plaintiff's claimed medical disability and reduced income are affirmed. The matter is remanded for further proceedings related to defendant's full-time employment and the status of the marital home.
The remaining arguments advanced by plaintiff are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed, as modified. We do not retain jurisdiction.