March 30, 2009
DEBORAH N. RIGGS, PLAINTIFF-RESPONDENT,
ENRICO J. CIARROCCHI, JR., DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2009
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 relationship and violating the parenting time provisions of the PSA.*fn5
We begin by addressing the Family Part's denial of defendant's motion to vacate the $27,474 of child support arrears that have accumulated since November 2006. As plaintiff correctly argues, N.J.S.A. 2A:17-56.23A prohibits the retroactive vacating or modification of accumulated child support arrears. Under those circumstances, Judge Claypoole correctly denied defendant's motion to vacate the arrears. Defendant's remaining arguments on that subject lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
We turn next to the judge's refusal to eliminate defendant's child support obligation. A party seeking modification or elimination of child support obligations has the burden of demonstrating that there has been a change of circumstances that would warrant such relief. Lepis v. Lepis, 83 N.J. 139, 151-53 (1980). Here, the undisputed evidence before the Family Part demonstrated that defendant's disability insurance policy would have guaranteed him a sufficient income stream to have enabled him to pay the required child support of $1,441 per month indefinitely. The record also demonstrates that defendant unilaterally negotiated with his disability insurance carrier to cash in his policy for a large lump sum settlement, rather than continue to receive the ongoing monthly payments of $3,000 per month.
Plaintiff is correct that relieving defendant of his obligation to pay child support merely because he received his income in a lump sum payment, would, in essence, permit him to enter into a contract that defeats the right of his children to receive support. Such a result cannot be countenanced. See Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003). A contrary ruling would have rewarded defendant for collecting, and then dissipating, all of the proceeds of his disability insurance policy. Therefore, the trial judge correctly concluded that such voluntary and irresponsible conduct on defendant's part does not satisfy the Lepis requirement of changed circumstances. See Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992) (holding that a voluntary relinquishment of income does not relieve an obligor of the obligation to pay child support). Because defendant premised his right to be relieved of his life insurance obligation on the same financial arguments that he asserted in connection with his motion to terminate his child support obligation, we likewise affirm the judge's decision on the life insurance issue.
We emphasize that nothing in the record remotely suggests that defendant's decision to reduce his future disability insurance payments to a lump sum was influenced by his bi-polar disorder. Had there been such proofs, we might have been inclined to a different result. In the absence of such proofs, we conclude that Judge Claypoole properly concluded that defendant failed to demonstrate changed circumstances that would entitle him to terminate his child support obligation.
Next, we turn to a review of the portion of Judge Claypoole's May 9, 2008 order that required the parties to attend mediation to resolve their parenting time disputes. Defendant argues that the judge was required to enforce the parenting time provisions of the PSA rather than force the parties to participate in mediation. His argument ignores the provisions of Rule 5:8-1. Whenever a court finds that parenting time issues "are a genuine and substantial issue, the court shall refer the case to mediation . . . ." R. 5:8-1. That Rule also specifies that the mediation process shall last no longer than two months from the date it commences or is ordered to commence, whichever is sooner. At appellate oral argument, the parties confirmed the parenting time disputes that existed at the time of the May 9, 2008 order have not been resolved. The two-month period for the conclusion of mediation, as set forth in Rule 5:8-1, has long since passed. Thus, the parenting time dispute must now be resolved by the judge.
Consequently, although we affirm the portion of the May 9, 2008 order that required the parties to attend mediation, we now remand the matter to the Family Part for further proceedings on defendant's motion to enforce his parenting time. We express no view on whether the Family Part must conduct a plenary hearing or whether the matter is capable of resolution at a motion hearing. We entrust that matter to the judge's sound discretion.
Finally, we affirm the denial of defendant's motion for reconsideration. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (holding that a motion for reconsideration should be denied when it is filed "merely because of [the litigant's] dissatisfaction with a decision of the [c]court").
To recapitulate, we affirm all portions of the May 9, 2008 order, and remand the parenting time dispute to the Family Part for further proceedings.
Affirmed as modified, and remanded. We do not retain jurisdiction.