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Simon v. Simon

November 6, 2008

JAMES K. SIMON, JR., PLAINTIFF-APPELLANT,
v.
RITA M. SIMON, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-1086-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Fuentes and Gilroy.

Plaintiff James Simon appeals from the order of the Family Part denying his motion seeking a reduction in his child support obligation. The parties had three children, now ranging in age from eighteen to fourteen years old. Plaintiff raises two basic questions in this appeal: (1) whether a prior judicial determination concerning his reasons for leaving his job should be given preclusive effect in deciding this motion for a reduction in child support; and (2) whether the motion judge erred in denying his motion for a reduction in child support without a hearing.

After reviewing the record before us, and in light of prevailing legal standards, we reverse and remand the matter for further proceedings. We are satisfied that the trial court erred in denying plaintiff's motion without a plenary hearing. These are the facts developed before the Family Part.

I.

The parties were married on April 1, 1989; they lived in Medford with their three children, two boys ages eighteen and fourteen, and a girl age seventeen. The parties executed a Property Settlement Agreement ("PSA") in May 2001, through which plaintiff agreed to pay child support in the amount of $360 per week until December 31, 2005, "at which point the [amount of] child support shall be determined based upon the Child Support Guidelines." The PSA was incorporated into a final judgment of divorce entered on June 21, 2001.*fn1

Plaintiff was employed by the Advanta Corporation in the years following the divorce.*fn2 His 2003 tax return listed wages of $187,188 and total income of $194,520, consisting of a base salary of $122,000 and a bonus of approximately $72,000. According to plaintiff, his total income for 2004 was $196,000, $122,000 base salary and a bonus of $74,000. However, his 2004 tax return lists wages of $246,911 and total income of $253,303. Bonuses were paid to "entice him to stay and liquidate [Advanta's] leasing portfolio." That process ended in February 2006, when he left Advanta.

In June 2005 plaintiff remarried; he, his new wife, and her three children initially lived in Princeton. He claimed that his 2005 salary, including a $95,000 bonus, was $217,000. This is not reflected in his joint tax return which he filed with his new wife. That document listed wages of $231,170 and total income of $235,458.

Soon after leaving Advanta plaintiff began to search for employment in the area. Unable to find a suitable job in the Princeton area, he eventually accepted the position of Vice President of commercial lending for the Suncoast Schools Federal Credit Union in Tampa, Florida. He began to work there on January 31, 2006, even though he did not leave Advanta until February 21, 2006; he accomplished this by using accumulated leave-time. Plaintiff's annual salary at Suncoast was initially $105,000. That same year plaintiff collected a final $62,500 "stay bonus" from Advanta.

Plaintiff initially lived with his father in Florida after accepting the position at Suncoast. This substantially reduced his parenting time with his three children. Eventually, his new wife Laura and her three children moved to Florida, and the family moved into a home in Apollo Beach. Laura also worked and received child support from her first husband, allowing her to contribute to her new family's living expenses.

Defendant resided with the parties' three children in a new home in Medford. She earned approximately $33,000 in 2003, and approximately $37,300 in 2005 while working two jobs. Although alimony payments had decreased, ...


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