February 9, 2009
WILFREDO CORDERO, PLAINTIFF-APPELLANT,
WANDA MORA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1844-93.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 14, 2009
Before Judges Cuff and Fisher.
In this post-judgment matrimonial appeal, we review an order denying plaintiff Wilfredo Cordero's motion to reduce his child support obligation to the child of his first marriage. We hold that plaintiff, a former major league baseball player, has demonstrated a substantial change of circumstances that has persisted for a sufficient period of time to warrant an evidentiary hearing on the issue of the appropriate level of child support due to this child. Therefore, we reverse and remand for further proceedings.
Plaintiff was a professional baseball player. He played with the Boston Red Sox, Cleveland Indians, Pittsburgh Pirates, Montreal Expos, Florida Marlins and Washington Nationals in the major league for fourteen years. He made a substantial amount of money during his career. In some seasons he made as much as $6,000,000.
Cordero's last season as a major league baseball player was 2005, when he played for the Washington Nationals. He participated in Spring training with the New York Mets minor league camp in 2007, but was cut. He has not played baseball since that time.
Plaintiff and defendant Wanda Mora were divorced on June 1, 1994. One child was born of the marriage. Following entry of the judgment of divorce, several orders have been entered adjusting plaintiff's child support obligation. An order effective May 27, 1999, reduced plaintiff's child support obligation from $1300 to $800 weekly. A November 15, 1999 order reduced the child support from $800 to $640 weekly. However, by order dated March 29, 2000, plaintiff's child support increased from $640 to $1300 weekly.
In 2003, plaintiff sought another child support reduction based on a claim of a substantial salary decrease. This application was denied without prejudice because plaintiff had not filed tax returns for 2000 and 2002. Plaintiff appealed but eventually withdrew the appeal.
In 2004, plaintiff filed another motion to reduce his child support obligation. Plaintiff supported this motion with the previously omitted information and demonstrated that his salary decreased from $4,061,464 a year to $600,000. Therefore, by order dated February 16, 2005, a motion judge ordered a reduction of child support from $1300 to $800 weekly. The following year, plaintiff sought and obtained another reduction based on a substantial salary reduction. Plaintiff's child support was reduced from $800 to $500 weekly. On appeal, plaintiff argued he should have received a greater reduction; we affirmed. Cordero v. Mora, Docket No. A-4990-05 (App. Div. June 20, 2007).
On May 9, 2007, defendant filed a motion to enforce the February 16, 2005 order. Plaintiff filed a cross-motion for a further reduction. The judge granted the motion to enforce the existing order. In addition, the judge ordered plaintiff to pay $11,999 in arrears within thirty days and denied his motion for a further reduction. The judge noted that plaintiff provided limited and spotty financial information. Based on the information before the court, the judge concluded that plaintiff had the ability to pay the arrears. He also found that plaintiff produced extremely limited information about his efforts to obtain employment and incomplete information about assets that may generate unearned income or can be liquidated to meet his on-going child support obligation. The judge was particularly concerned that plaintiff had not provided an accounting of the millions of dollars he had earned during his professional baseball career.
In support of his motion to further reduce his child support obligation, plaintiff asserted that he is no longer playing baseball at any level, major or minor league. With the demise of his baseball playing career, his substantial earnings have also vanished. He asserted that he has been able to obtain only short term stints at camps, such as Kutsher's Sports Academy, and a position in a deli. He reported that he received $4700 from the sports camp for the period of June 21, 2007 to August 4, 2007. He receives $8.25 per hour for his work at a deli counter.*fn1
In support of his motion, plaintiff relied on a Case Information Statement filed in 2006. This document revealed no salary for 2006, monthly expenses of $20,048, and no assets other than a $100,000 Merrill Lynch account. He has never reported the value of his major league pension but advised the court that he cannot access his pension until he reaches age fifty-five. The record does not reveal whether any Qualified Domestic Relations Orders (QDRO) have issued to effect a distribution of this asset.
Plaintiff also stated that he and his third wife divorced in January 2006. He has a child from this marriage, but has not paid child support. Their marital home was sold in 2006 and the proceeds were split between the spouses. He received $345,000. He reported that he used this fund to pay living expenses, including his support obligations, but had spent it all by the time he filed the current motion in July 2007.
Orders for support "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. The moving party bears the burden to make a prima facie showing of changed circumstances. Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). A decrease in the obligor's income may be recognized as a changed circumstance. Lepis v. Lepis, 83 N.J. 139, 151 (1980). In Lepis, the Supreme Court addressed the changed circumstances standard. Id. at 157-59. In the context of an application to increase child support, the Court explained that when the moving party "is seeking modification of child support, the guiding principle is the 'best interests of the children.' A prima facie showing would then require a demonstration that the child's needs have increased to an extent for which the original arrangement does not provide." Id. at 157 (internal citations omitted). When the moving party seeks a decrease in a child support award, the obligor must establish a diminution in income, earned and unearned, or a substantial increase in the financial circumstances of the former spouse or a continuation of changes for both parents. Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). Implicit in this demonstration is a revelation of assets and the existence and source of unearned income. See Connell v. Connell, 313 N.J. Super. 426, 432-33 (App. Div. 1998) (inherited assets and the income produced by such assets are factors to be considered in calculation of child support award); Stamberg, supra, 302 N.J. Super. at 41 (motion to reduce alimony may be denied due to failure to provide a full statement of current income from all sources and may be renewed on production of same). Temporary setbacks are usually not considered an occasion for revision of support obligations. Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006). If the obligor satisfies this first step, the dependent spouse will be expected to fully disclose her financial status. Lepis, supra, 83 N.J. at 157. A hearing on whether the obligor has indeed suffered changed circumstances and whether the support obligation should be altered should occur when there is a genuine issue of material fact. Id. at 159.
A reduction in salary has long been recognized as a change of circumstances. See, e.g., Martindell v. Martindell, 21 N.J. 341, 355 (1956). A reduction in salary, even the loss of a large income, may not warrant a reduction in a child support obligation. If a large reduction of income or even the loss of income is temporary, no relief may be in order. Larbig, supra, 384 N.J. Super. at 22-23. If the obligor's income is reduced due to a voluntary act, such as retirement, modification may not be in order. Deegan v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992); Lissner v. Marburger, 394 N.J. Super. 393, 399 (Ch. Div. 2007). Furthermore, an obligor may have assets that produce or have the potential to produce unearned income to meet on-going support obligations.
Any consideration of a request to reduce a child support award cannot focus solely on the amount of income earned in the past. The judge must also consider the type of work performed by the obligor that produced the income. This is particularly true when the obligor is a professional athlete. At the height of a career, a professional athlete may earn vast sums of money. The ability to earn such an income is almost always transitory. Here, there is no question that plaintiff has not played professional baseball since 2005, when he was cut by the Washington Nationals. He obtained a minor league contract with the New York Mets organization but did not make the team. While a court may impute income, Caplan v. Caplan, 182 N.J. 250, 268-69 (2005), a judge cannot assume that the obligor will continue to earn income at the same level as an active professional athlete unless the athlete has other exceptional attributes. There is nothing in this record to suggest that is the case.
Admittedly, current income is not the sole focus of an analysis of a request to reduce child support. The judge must consider the moving party's ability to earn income in the future. Such an inquiry must consider the education and other abilities demonstrated by the moving party. N.J.S.A. 2A:34-23. The judge must also consider the assets of the moving party and the ability of those assets to produce income to meet the moving party's obligations.
Over the years, the judge has required plaintiff to document his living expenses and his assets and liabilities. He has also requested plaintiff to provide an accounting of the money earned over his professional baseball career. The judge has critically evaluated plaintiff's various motions for modification in the past. He had the right to expect the production of this information, Stamberg, supra, 302 N.J. Super. at 41, and a right to be skeptical. To do otherwise could be interpreted as a reward for profligate spending and a lack of foresight. Plaintiff earned a good deal of money over the years. It is hard to believe that none of that vast sum of money is available today.
In light of the dramatic change in plaintiff's earned income, as well as the documentation of assets and liabilities submitted by plaintiff, we hold that plaintiff has established that his earned income has been sharply reduced and this reduction is not transitory. Admittedly, there is no bright line rule to discern "when a changed circumstance has endured long enough to warrant a modification of a support obligation."
Larbig, supra, 384 N.J. Super. at 23. Here, however, the record demonstrates that the reduction in earned income is not transitory, that plaintiff has established a prima facie case of changed circumstances, and that the many contested issues regarding the existence and value of assets and his lifestyle warrant an evidentiary hearing.
We reiterate that plaintiff has the burden of proof to demonstrate that he is entitled to a further reduction of his child support obligation. He must fully disclose his financial condition, including the value of his major league baseball pension, the terms and conditions of this pension, the existence of any QDROs affecting his rights under this pension, and the obligations he has assumed in the course of the dissolution of his two subsequent marriages. We assume the trial judge will enter an appropriate order for the production of such information to allow defendant sufficient time to review the submissions.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.