On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Burlington County, Docket No. FM-03-61410-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
In this post-judgment matrimonial matter, defendant Enrico J. Ciarrocchi, Jr., appeals from a May 9, 2008 order of the Family Part that denied his motion to: vacate child support arrears; eliminate his obligation to provide life insurance; terminate the child support order; relieve him of the obligation to pay his children's college tuition; and enforce the parties' visitation agreement. We affirm.
At the time of the parties' March 20, 2001 divorce, defendant, who was formerly an accountant,*fn1 was receiving disability income of $3,000 per month from a private disability insurance policy, as well as Social Security Disability (SSD) in the amount of $1,441, for a combined total of $4,441 of monthly income. His monthly child support obligation of $1,446 was calculated based upon his income of $4,441 from those two sources.*fn2 In 2004, defendant entered into an agreement with his disability insurance carrier to reduce all future disability payments to a present lump sum value of $360,000.
In November 2006, defendant ceased paying child support, which resulted in the filing of an enforcement motion by his ex-wife, plaintiff Deborah N. Riggs. Plaintiff filed her enforcement motion in Camden County because that was the county in which the parties' divorce had been granted. After hearing oral argument on February 29, 2008, Judge Rand granted plaintiff's motion to enforce defendant's child support obligation. In particular, the judge concluded that the three children of the marriage should not be forced to forego their right to child support simply because their father chose to reduce his disability insurance payment to a lump sum and then spent all of the money he received from doing so. Consequently, the judge entered a judgment in favor of plaintiff in the amount of $23,136, which represented the child support arrears as of February 29, 2008. The judge also denied defendant's request to vacate the arrears. In so doing, Judge Rand relied on N.J.S.A. 2A:17-56.23A, which prohibits the retroactive modification of child support arrears that accumulate prior to the filing of the motion to vacate such arrears. Judge Rand also directed the parties to file any future child support motions in Burlington County, in light of defendant's recent move.
A few months later, defendant filed the motion in Burlington County that is the subject of this appeal. Notably, defendant's motion did not request a reduction of his child support obligation. Instead, he asserted that he was entitled to eliminate his child support obligation in its entirety.
In the portion of her May 9, 2008 order that denied defendant's motion to vacate his child support arrears, Judge Claypoole concluded that "[t]here has been no change in circumstances since the parties' divorce" and that any downturn in defendant's financial situation "was of his own making." The judge also declined to vacate defendant's obligation to provide life insurance, reasoning that he had presented no meritorious basis to modify the parties' property settlement agreement (PSA) which required him to maintain such insurance. The judge also denied defendant's motion to eliminate any ongoing child support for the same reasons that she denied defendant's motion to vacate the accumulated arrears. In particular, she concluded that defendant's unilateral decision to cash in his disability insurance policy, followed by his dissipation of those proceeds,*fn3 did not constitute a legally cognizable change of circumstances. She next declined to relieve him of his obligation to contribute to his children's college education because no order had been entered that required him to contribute to those costs. Finally, the judge ordered the parties to participate in mediation to resolve their ongoing visitation disputes.
Defendant filed a timely motion for reconsideration, which Judge Claypoole denied after finding that defendant failed to establish any entitlement to such relief but instead had merely "reiterate[d] the arguments made in his prior moving papers and at oral argument on May 9, 2008."
On appeal, defendant asserts that because he has received no income since 1998, is mentally disabled and collects SSD, he lacks the financial ability to pay child support and the arrearages should have been vacated.*fn4 He asserts that he has "nothing left" from his disability settlement and his remaining assets are limited to the condominium he purchased after the divorce. He also alleges that his ex-wife has been able to maintain a lavish lifestyle after the divorce and has no financial need for child support, as evidenced by her one-year delay in filing an enforcement motion in Camden County. He argues that those same factors demonstrate that the judge erred when she refused to relieve him of any further obligation to pay child support and to maintain a life insurance policy.
As to visitation, defendant recognizes that the two older children are now emancipated; however, he maintains that his ex-wife has unfairly and improperly scheduled athletic and other events at times that interfere with his parenting time with his son, thereby disrupting the father-son ...