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Fitzpatrick v. Fitzpatrick


December 12, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-603-05.

Per curiam.


Argued October 7, 2008

Before Judges Wefing, Yannotti and LeWinn.

Defendant John J. Fitzpatrick appeals from those provisions of the October 5, 2007 order of the Family Part that: (1) denied his request to be granted residential custody of three of the parties' children; (2) declined to recalculate child support to reflect both "the current incomes of the parties," as well as the "current custody arrangement of the minor children of the marriage"; (3) declined to require plaintiff Annemarie Fitzpatrick to file a current Case Information Statement (CIS); and (4) declined to address certain equitable distribution issues.*fn1 We affirm substantially for the reasons set forth by Judge Alan J. Pogarsky in his order of October 5, 2007.

The parties were married in November 1987 and divorced in October 2005. Four children were born of the marriage, ranging in age at the time of the divorce from ten to almost seventeen years of age.

The parties' judgment of divorce incorporated a property settlement agreement (PSA) containing the following provisions regarding custody and child support:

3.1 Custody.... The husband and wife recognize that it is in the best interest of the children that the parties shall have joint legal custody, with the wife currently being the primary residential parent and primary caregiver of the two oldest children...; and the parties currently having shared residential custody of the two youngest children.... All major decisions concerning the children's health, safety, education, welfare and religious upbringing shall be joint and equal decisions. The parties agree that the two younger children will attend Point Pleasant Beach Schools through 8th grade and then Point Pleasant Boro High School.

3.2 Time-Sharing. The parties acknowledge that there has been and will continue to be reasonable and liberal parenting time between the children and the parties based on the children's desires and the parties' availability, which the parties agree shall continue. However, husband shall have at minimum one overnight per week with the two older children if the children so desire. If in the future there is a dispute the parties will seek mediation through the Ocean County Probation Department before proceeding to Court, in case [of] emergency.

Pursuant to paragraph 4.1 of the PSA, defendant's child support obligation was set at $400 per week; this paragraph further provided:

The parties agree that they did not utilize the child support guidelines because of the parenting time arrangements, which at the present time is that wife has the two older children almost exclusively, and according to husband he has [one child] about 60% of the time and the parties have equal time with [the youngest child]. The parties do agree that they ran a number of sets of guidelines with certain assumptions, including husband's income at $191,000 gross per year, wife having imputed income of $35,000 gross per year, permanent alimony at $40,000 per year and the cost of husband maintaining the children on his health insurance policy at $75 per week.

On June 13, 2007, plaintiff filed a motion to enforce her rights under the PSA, specifically seeking to effectuate the payment of certain capital gains taxes connected with the sale of the marital home, to hold defendant responsible for interest and penalties due on those taxes, and to compel defendant to cooperate in resolving outstanding issues of marital debt. In her certification, plaintiff alleged that the parties had been engaged in ongoing combative negotiations, and that defendant had failed to pay his share of the capital gains tax. Defendant did not oppose the motion or appear on its return date. On June 29, 2007, the trial judge entered an order granting much of the relief sought by plaintiff.

Defendant filed a motion on August 29, 2007, seeking the relief that is the subject of this appeal. Plaintiff filed a cross-motion, seeking to hold defendant in violation of litigant's rights, to fix the amount of his child support arrears, to have defendant pay certain interest and penalties on the capital gains taxes pursuant to the court's earlier order of July 29, 2007, and other related relief.

In his October 5, 2007, order, Judge Pogarsky provided a comprehensive statement of reasons denying the relief sought by defendant. The judge's findings are "adequately supported by [the] evidence[,]" and we affirm. R. 2:11-3(e)(1)(A). We add only the following comments.

On appeal, defendant argues that the trial judge erred and/or abused his discretion in deciding these issues. Having reviewed those contentions in light of the record and the applicable law, we disagree.

Our scope of review of a trial court's factfinding function is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "We grant substantial deference to a trial court's findings of fact and conclusions of law," Crespo v. Crespo, 395 N.J. Super. 190, 193 (App. Div. 2007), and "we do not disturb the factual findings and legal conclusions of the trial judge unless we are 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." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). "[T]he appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Defendant argues that the trial judge erred by denying his motion for residential custody of the parties' three children. We disagree. Judge Pogarsky found that there had been no significant change of circumstances warranting a change in the custody arrangement for the children as set forth in the PSA. The record supports the judge's finding. As the judge found, the ebb and flow of the children's living arrangements comport with the PSA's provision for substantial flexibility in those arrangements according to the children's preferences. Thus, the "circumstances claimed to be changed... are, in reality, the circumstances contemplated by" the parties' PSA. Glass v. Glass, 366 N.J. Super. 357, 376 (App. Div.), certif. denied, 180 N.J. 354 (2004). We concur with the trial judge's finding that "the quantity of parenting time each child spent with each parent was anticipated and encouraged under the parties' PSA, and that no significant change of circumstance has occurred."

Regarding defendant's claim of diminished income warranting "recalculation" of his child support obligation, we reject as without merit his argument that the trial judge erred in failing to rely upon our decision in Kuron v. Hamilton, 331 N.J. Super. 561 (App. Div. 2000). In Kuron, the support obligor was an attorney who was disbarred shortly after the divorce, resulting in a decrease in his income. Id. at 564-65. We "[a]ccept[ed] the premise that a reduction in income by reason of... loss of professional licensure is to be treated as voluntary conduct for change of circumstances purposes...." Id. at 570. In deciding whether to countenance a reduction in support "whenever a diminution of income has resulted from voluntary conduct[,]" we held that "such a situation requires a variety of factors and circumstances to be taken into account." Id. at 571. Those factors include: "the motives of the payor, the timing of the conduct that brought about the reduction in income, the payor's ability to meet the mandated support obligations even after the reduction in income, and the ability of the payee to provide for... herself." Ibid.

We conclude, however, that Kuron is inapposite to this case. The trial judge found that defendant's loss income was merely temporary because his dental license was restored after approximately one year. Although defendant's dental practice continued to be restricted after reinstatement of his license, he nonetheless failed to demonstrate an inability to supplement his income in order to compensate for any diminution of earnings. Because defendant's loss of licensure was, in essence, a temporary situation, the trial judge's failure to address the question of voluntariness as discussed in Kuron, supra, was neither an abuse of discretion nor legal error. We defer to the trial judge's findings, and note that the judge did not render those findings in a vacuum. Rather, this judge had presided over the parties' divorce in 2005, at which time they incorporated their PSA into their divorce judgment; the same judge also presided over plaintiff's earlier post-judgment motion in June 2007.

Defendant's argument that plaintiff should have been compelled to submit a current CIS, also is without merit. R. 2:11-3(e)(1)(E). Because defendant failed to meet his burden of a prima facie showing of changed circumstances, the trial judge was not obligated to require plaintiff to submit current financial information. Lepis v. Lepis, 83 N.J. 139, 157 (1980); Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997).

Finally, we conclude that defendant's challenges to Judge Pogarsky's equitable distribution rulings are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). Those issues had previously been addressed in the judge's order of June 29, 2007.


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