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Galaris v. Kakogiannis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 8, 2009

EMMANUEL GALARIS, PLAINTIFF-RESPONDENT,
v.
OURANIA KAKOGIANNIS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-0802-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2009

Before Judges Fuentes and Chambers.

Defendant Ourania Kakogiannis appeals from the order of the Family Part reducing plaintiff Emmanuel Galaris's child support obligation to the parties' two children. We affirm.

The parties were involved in a romantic relationship that produced two children, a boy born in October 1998, and a girl born in May 2000. By order dated December 11, 2003, the court fixed plaintiff's child support obligation in the amount of $300 per week, allocating $160 for direct child support, and $140 for related child care.

According to his certification filed before the Family Court, plaintiff was convicted in the New York Eastern District Court on a charge of interstate conspiracy, and sentenced to a term of imprisonment that commenced on September 8, 2006, and was expected to continue until July 2010. As a result, plaintiff lost his business as a wholesaler, together with a number of flea market booths he also operated.

Plaintiff served a total of ten months of his custodial sentence, and was released under parole supervision in July 2007. At the time this matter came before the trial court, plaintiff was working in a restaurant in Fairview earning approximately $370 per week net. At the time the court fixed his child support obligation in 2003, plaintiff earned approximately $600 per week.*fn1

In September 2007, plaintiff filed the motion for reduction of child support under review here. Defendant filed a cross-motion seeking an increase in child support. Based on the certifications submitted, the trial court found that plaintiff had a established a prima facie case of changed circumstances, and conducted a plenary hearing in which the parties testified and presented documentary evidence in support of their respective positions.

Plaintiff testified that he lives in a residence owned by his sister. He does not pay rent, and minimally contributes (when he can) toward expenses for utilities. In addition to the child support in this case, he is also obligated to pay child support for children born in a previous marriage. At the time of this hearing, the amount of child support fixed by the trial court in the judgment of divorce dissolving his marriage was $700 per month.*fn2

After considering all of the evidence presented, including defendant's testimony questioning plaintiff's credibility, the trial court found that, based on the child support guidelines, plaintiff was entitled to a reduction in child support. The record shows that, in reaching this conclusion, the hearing judge carefully considered the public policy implications of acknowledging plaintiff's criminal conduct as a legitimate factor in determining whether he is entitled to reduce his support obligation to his children.

The trial judge was also troubled with plaintiff's residency arrangement. As the beneficiary of his sister's largess, plaintiff is living rent-free, leaving him with a larger share of his earnings. There is no doubt that this residency arrangement can be easily quantified by a realtor knowledgeable about the area's rental market. There is no legal support, however, for imputing to plaintiff the value of this living arrangement as "in-kind income."

Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6B at 2360 (2009) defines "In-kind Income" as:

The fair-market value of goods, services, or benefits received in lieu of wages and in the course of employment shall be included as gross income if they reduce personal living expenses of the recipient regardless of whether they are derived from an employer, self-employment, or the operation of a business. Examples of in-kind goods, services and benefits include vehicles, automobile insurance, free housing, meals, benefits selected under a cafeteria plan, memberships, or vacations. Expense reimbursements are not considered income. [Emphasis added.]

Here, the value of plaintiff's living arrangement is not connected to his employment, and thus not subject to recognition by the court in determining his child support obligation. The same holds true with respect to any benefits plaintiff receives from his current girlfriend.

We are satisfied that plaintiff met his burden of showing changed circumstances entitling him to a plenary hearing. Miller v. Miller, 160 N.J. 408, 420 (1999). The trial judge's determination reducing plaintiff's child support obligation to $142 per week adheres to the child support guidelines, Rule 5:6A, and is therefore entitled to a rebutable presumption of validity. Schwarz v. Schwarz, 328 N.J. Super. 275, 283 (App. Div. 2000). Here, defendant has not presented any evidence to rebut this presumption.

Affirmed.


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