On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, Docket No. FM-13-1998-03D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Parrillo and Messano.
Defendant Ian Olito appeals from the post-divorce order of the Family Part denying his motion for reduction of alimony and child support without prejudice. We affirm in part, reverse in part and remand the matter for further proceedings.
Briefly by way of background, plaintiff Lisa Olito and defendant were married on September 24, 1978, and their only child, Ryan, was born on April 1, 1990. The parties divorced on September 30, 2004. The final judgment incorporated their property settlement agreement (PSA), wherein the parties agreed to share joint legal custody of Ryan with primary residential custody entrusted to plaintiff. Defendant also agreed to pay $81 in weekly child support*fn1, a sum acknowledged not to be based on the Child Support Guidelines since the parties were unable to agree on defendant's correct income level at the time. The PSA also obligated defendant to pay $300 in weekly alimony based not on defendant's then current income, but the lifestyle the couple enjoyed while married. The PSA also provided that "Wife agrees and acknowledges that Husband's alimony obligation herein shall cease and terminate upon Wife's re-marriage or Wife's cohabitation as per New Jersey case law."
Soon after the divorce, defendant fell behind on his support payments and he was ordered on January 17, 2007 to pay $50 weekly towards arrears. Actually, a consent order of July 27, 2007, set the arrearage amount at $26,762.52. One month before, defendant had moved to decrease his support payments, citing a drastic reduction in income - $12,000 in 2006 and $25,000 as of June 2007; commencement of plaintiff's employment at $55,000 per year; and plaintiff's cohabitation with another woman. As to the latter, defendant alleged that plaintiff moved into a home in Freehold with a "female partner" in July 2006 and has lived there and shared rent with her ever since. He claimed they have "undertaken a way of life as a committed couple." In her cross-motion to enforce litigant's rights, plaintiff admitted that she currently rents a house with another woman, but denied any relationship -- intimate or otherwise -- other than a financial arrangement to split rent.
The matters were decided on the papers without benefit of oral argument. On October 16, 2007, the motion judge denied without prejudice defendant's request for support reduction but allowed him twelve weeks of child support credit for the period Ryan lived with defendant commencing February 14, 2007. In finding no change of circumstances to warrant a reduction in child support, the judge concluded:
The husband shows [$]12,000 income for 2006. Under paragraph 2 of the judgment of divorce the support was not in accordance with the guidelines, but was compromised due to inability to agree on husband's income level. There's no proof of prior income indicated -- there's no indication of the property settlement agreement as to the wife's income.
He has not made out a Lepis*fn2 change of circumstances because we don't know what his prior income was. And his $12,000 income that he shows is obviously not a realistic figure.
He shows $27,646 and then car and truck expenses which for child support guideline purposes and depreciation are not counted. So that would leave him -- those would be added back in, but the husband fails to show what how much of a change there was from his prior income to the present. And the fact that there was a problem with his, for tax purposes that indicates to this Court that his income level was somewhat nebulous back then.
As an additional reason for denying the motion to reduce alimony, the judge also found that defendant simply "ha[d] not made out a prima facie case of cohabitation under Gayet*fn3 and Garlinger*fn4 ." Defendant was subsequently ordered to pay arrearages in child support and alimony in the amount of $5,000 by December 1, 2007 and $650 in attorney fees within 10 days.
On appeal, defendant argues the court erred in not conducting a plenary hearing on plaintiff's alleged "cohabitation", and further failed to make findings of fact and conclusions of law on the issue.
Preliminarily, we note that this appeal is not from a final order inasmuch as the Family Part judge denied the requested relief without prejudice, R. 2:2-3(a)(1), inviting defendant in effect to make reapplication upon presentation of appropriate proofs. Nevertheless, for future guidance to the parties, we treat the appeal as a motion for leave to appeal, grant the motion nunc pro ...