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Hollander v. Porzilli

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 19, 2009

DEANN J. HOLLANDER, PLAINTIFF-RESPONDENT,
v.
LOUIS B. PORZILLI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-283-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2008

Before Judges R. B. Coleman, Sabatino and Simonelli.

This appeal involves numerous attempts by defendant Louis B. Porzilli to reduce his weekly child support obligation. Defendant appeals from the January 24, 2008 order imputing his yearly income at $20,000 and reducing his weekly child support payment to $71 instead of the requested $50. Defendant also appeals from the December 21, 2007 order denying his motion to disqualify plaintiff's attorney, and the January 4, 2008 order denying his motion to recuse the motion judge. Because defendant did not address the issues decided in those orders in his merits brief, they are deemed waived. Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2008). Thus, we limit our review to the modification of child support issues decided in the January 24, 2008 order.

It is an understatement to describe the history of this matter as long and tortured. We summarize the relevant facts from the lengthy and sometimes bizarre record.*fn1 The parties were married on October 20, 1990. One daughter was born of the marriage. The parties separated in October 1998. Plaintiff filed her complaint for divorce in January 1999. In February 1999, plaintiff obtained a final restraining order against defendant.

After a bench trial, the trial judge made findings of fact and conclusions of law. The judge entered a final judgment of divorce on July 31, 2000, requiring, among other things, that defendant pay $97 per week based on the Child Support Guidelines worksheet attached to the judgment and imputing to defendant a yearly income of $20,000. The judge calculated the total weekly child support amount at $353. Apparently recognizing the disparity between plaintiff's and defendant's incomes, the judge allocated 27.62% of the child support amount to defendant and 72.38% to plaintiff. An amended final judgment of divorce, entered on September 29, 2000, again set defendant's weekly child support obligation at $97 based upon the same factors.

Because the parties have provided no transcripts of the trial or any of the numerous post-judgment motion hearings, it is impossible for us to review the imputed income issue. However, defendant admitted at one point to a yearly income of approximately $9000.*fn2 The record also indicates that defendant possibly had income from his two patents and his various music endeavors, that he is college educated and highly trained in music and science, and that he had equitable distribution rights to $4764.82 from plaintiff's IRA, $1506.96 from Enzon stock, and $8713.16 from the sale of the marital home.

Defendant did not appeal the amended final judgment. Instead, in March 2001, he filed the first of seven post-judgment motions, not including his motions for reconsideration, to reduce his weekly child support obligation to $50. In support of his motions, defendant claimed the imputed income was too high because he was unable to work due to various medical conditions, including a chronic back injury and muscular damage (allegedly caused by a corrections officer who had handcuffed him to a chair), sigmoid diverticulitis and diverticulosis with infiltrate, and renal calculus. In support of his motions, defendant provided some medical information. However, he provided no doctor's affidavit indicating that he could not work as a result of his medical condition. As a result, all motions were denied for defendant's failure to provide competent medical evidence of an inability to work. During the course of that prior motion practice, one judge found that defendant possessed the education and means to earn the imputed income regardless of any alleged medical condition.

The judge hearing the motion that resulted in the January 24, 2008 order reduced defendant's weekly child support obligation to $71 based on the Child Support Guidelines worksheet attached to the order, and on imputing defendant's yearly income at $20,000. The judge calculated the total weekly child support amount at $325. Apparently recognizing a new disparity between plaintiff's and defendant's incomes, the judge allocated 21.76% of the child support amount to defendant and 78.24% to plaintiff. The judge rejected defendant's request to further reduce his weekly child support obligation to $50, finding his medical evidence insufficient to prove an inability to work.

On appeal, defendant contends that the judge set the amount of child support without proper evidence or a hearing; failed to properly address the merits of his request to reduce child support based on changed circumstances; improperly imputed yearly income of $20,000; and abused his discretion in setting the amount of weekly child support at $71 instead of $50.

Our review of a trial judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "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[.]" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, we should accord deference to family court fact-finding." Cesare, supra,, 154 N.J. at 413. If evidence is lacking to sustain the court's finding, it is only then that the findings must be set aside. Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we review defendant's contentions.

A parent seeking to modify a child support order must show "'changed circumstances had substantially impaired [the parent's] ability to support himself or herself.'" Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)). When considering an application to modify a support obligation, the movant must "make a prima facie showing of changed circumstances warranting relief prior to the court ordering discovery of the full financial circumstances" of the parties. Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998) (citing Lepis, supra, 83 N.J. at 157-59). "If that showing is made, and after receipt of ordered discovery, the judge then determines whether the changed circumstances justify modification. A plenary hearing may be necessary to adjudicate the matter if there are genuine issues of material fact." Ibid. (citing Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968)).

Based upon our careful review of the record, we discern no reason to disturb the judge's ruling. Defendant failed to make a prima facie showing of changed circumstances warranting discovery, a hearing or a further reduction of child support. There is no competent evidence that defendant suffers from a medical condition that prevents him from working.

Affirmed.


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