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Cassidy v. Cassidy

September 5, 2008

TIMOTHY B. CASSIDY, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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