On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1012-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically March 25, 2009
Before Judges Parker, Yannotti and LeWinn.
In this post-judgment matrimonial matter, defendant Stanley P. Gorski appeals from the order entered in the Family Part on July 2, 2008, denying without prejudice his motion to modify his child support obligation and to reallocate the costs of the court-appointed parenting coordinator and therapist to "a 50/50 basis" between the parties. For the reasons that follow, we affirm.
The parties were married in 1992 and have one child who was born in 1994. They were divorced by judgment entered on April 26, 2000, which incorporated their property settlement agreement (PSA). The PSA noted that defendant was then earning "a base pay of approximately $105,500, and . . . an annual year-end bonus which ha[d] averaged $12,500 over the last two years." Defendant's child support obligation between the date of judgment and April 30, 2003 was set in amounts which exceeded the Child Support Guidelines (Guidelines): $3600 per month in 2000; $3300 per month in 2001; and $3000 per month in 2002. The PSA further provided that commencing May 1, 2003, defendant's child support obligation would be calculated in accordance with the Guidelines.
In January 2005 the parties reached an agreement that defendant's child support obligation would be reduced to $1500 per month. It does not appear that this amount was calculated according to the Guidelines; nor does it appear that child support had been re-calculated in May 2003, as the PSA provided.
This agreement was subsequently memorialized in an order entered on October 17, 2005, which also provided that defendant was to pay two-thirds and plaintiff to pay one-third of the cost of the parent coordinator and the child's therapist. At the time this order was entered, defendant acknowledged that his gross annual income was $180,000 per year through self-employment and plaintiff certified that she expected to earn approximately $89,000.
In April 2008, defendant filed a motion seeking a reduction of his child support obligation and reallocation of the costs of the parent coordinator and the child's therapist. Defendant alleged that his income had "dramatically" decreased and that plaintiff's income had significantly increased. Defendant asserted that in 2007, his company was forced into "involuntary Chapter 11 bankruptcy" proceedings, which culminated in the sale of the company's assets "at a considerable loss." Defendant certified that he became employed by a new company earning $138,000 per year, with the opportunity to earn an additional $62,500 per year in "incentive compensation."
Defendant further claimed that plaintiff's financial records indicated that she was earning a gross annual salary of $141,824.04. As part of his motion, defendant requested that plaintiff be ordered to file a current case information statement (CIS). Defendant also sought an award of counsel fees on the motion.
Plaintiff cross-moved for counsel fees and certified in opposition that defendant's current income was in fact higher than the "predicate income in 2000," when the parties entered into their PSA. Therefore, plaintiff argued, defendant had failed to show a change of circumstances warranting a reduction in his child support obligation.
Plaintiff also opposed defendant's request to reallocate the costs of the parent coordinator and therapist, and asserted that defendant "[wa]s clearly in a better financial position to pay for these professionals. In fact, . . . defendant consume[d] significantly more of the parent coordinator's time and energy than [she did], which in turn, cause[d] both of [them] to incur more fees."
In her order of July 2, 2008, Judge Rosemary E. Ramsay denied both of defendant's requests without prejudice; required the parties to submit within fourteen days the names of three possible replacement parent coordinators; and denied both parties' counsel fee requests. In support of her denial of defendant's request to modify child support, the judge stated:
The party seeking modification of a support obligation bears the burden of establishing the existence of substantial and permanent changed circumstances warranting such a modification. See Lepis v. Lepis, 83 N.J. 139, 158 (1980); Bonanno v. Bonanno, 4 N.J. 268 (1950). Defendant fails to provide ...