August 11, 2009
ELIZABETH A. GORSKI, PLAINTIFF-RESPONDENT,
STANLEY P. GORSKI, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 sufficient proof of either a substantial or permanent change of circumstances.
In 2005, defendant owned his own company. Defendant contends that in 2007, that company was "put into an involuntary Chapter 11 bankruptcy." Defendant, however, has not submitted proof of that fact or the outcome of the bankruptcy proceeding. Defendant further asserts that he is now "employed by a new company formed, in part, by the assets of [his] old company." Defendant contends that his "salary was dramatically reduced." He allegedly now earns approximately $138,000.00 annually. Although defendant acknowledges that he has the potential to earn an additional $62,500.00 per year in "incentive compensation," he contends that compensation is not guaranteed. In support of these contentions, defendant provides copies of his W-2 statements with his CIS. Defendant, however, does not provide any documentation, e.g., tax returns, filed on behalf of his company. Without that information, neither plaintiff nor this [c]court can evaluate whether defendant has received other distributions from his company that would provide a source of income independent of the income received as wages as reflected on his W-2 statements.
Moreover, even if defendant's income has decreased as a result of the change in his employment, he has not demonstrated that any such change is permanent. Temporary circumstances, e.g., temporary unemployment or other reductions in salary, are an insufficient basis for modification of support obligations. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950); Innes v. Innes, 117 N.J. 496, 504 (1990); Bergen Bd. of Services v. Steinhauer, 294 N.J. Super. 507, 507 (Ch. Div. 1996). Given defendant's potential to earn the same amount, if not more, that he earned in 2005 and his failure to establish that any reduction in his earning potential is permanent, defendant has failed to make a prima facie showing of changed circumstances warranting modification of his child support obligation. Therefore, defendant's motion is DENIED, WITHOUT PREJUDICE.
The trial judge also denied defendant's request that plaintiff submit a current CIS, stating: "[T]he increase in plaintiff's income [does not] warrant the exchange of financial information in advance of defendant establishing the requisite threshold showing of changed circumstances justifying modification of his child support obligation."
In denying defendant's request to reallocate the costs of the parenting coordinator and therapist, the judge found that, "[n]otwithstanding defendant's contentions, there is no basis to reallocate each parent's share of the costs . . . ."
On appeal, defendant argues that (1) the trial judge erred in "failing to recognize" that defendant had made a prima facie case of changed circumstances and should have scheduled a plenary hearing; (2) if the trial court "questioned" defendant's representations as to his financial situation, a plenary hearing should have been scheduled; (3) child support must be reviewed periodically and "whenever possible, child support guidelines are to be utilized"; and (4) because the parties' financial circumstances had changed, the trial judge erred in denying reallocation of the cost of the parent coordinator and therapist. Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied that they are without merit. We affirm substantially for the reasons set forth by Judge Ramsay in the statement of reasons appended to her July 2, 2008 order. We add only the following comments.
In defendant's 2008 motion, his certification demonstrated that he was earning a higher gross salary than at the time of the divorce when he had agreed to a child support obligation ranging from $3600 per month in 2000 to $3000 per month in 2002. In 2005, defendant certified that he was then earning $180,000 annually as compared to the "approximately $118,000.00 annually" he was earning at the time the parties executed their PSA. Notwithstanding that increase in defendant's earnings, the parties agreed to reduce defendant's monthly child support obligation to $1500.
In April 2008, defendant certified that he was "paid $138,000.00 per year[,]" with "the opportunity to earn up to $62,500.00 per year in incentive compensation." Thus, notwithstanding his company's Chapter 11 bankruptcy filing, defendant's earnings did not substantially decrease. We fully concur with the trial judge's determination that defendant failed to establish changed circumstances warranting modification under these circumstances.
It appears that defendant's effort to reduce his child support obligation was premised in large part upon the alleged increase in plaintiff's income. As the obligor, however, defendant had the burden to make a prima facie showing of changed circumstances in his own financial situation "prior to discovery of [plaintiff's] financial status. . . . Only after the movant has made this prima facie showing should the respondent's ability to pay become a factor for the court to consider." Lepis, supra, 83 N.J. at 157.
We do not take issue with defendant's contention that he is entitled to periodic review of his child support obligation. R. 5:6B. That entitlement, however, does not relieve defendant of the obligation to prove changed circumstance when seeking a downward modification in the course of such a review.
Defendant argues that N.J.S.A. 2A:17-56.9(a) expresses the legislative intent that "whenever possible, . . . child support [is] to be paid pursuant to the Child Support Guidelines." That statute provides for triennial review of child support orders, "unless the State has developed an automated cost-of- living adjustment program for child support payments[,]" and provides further that "[s]uch review shall take into account . . . whether the order of child support is in full compliance with the . . . [G]uidelines."
We note, as the trial judge recognized, that the New Jersey Supreme Court's adoption of Rule 5:6B "satisfies the statutory mandate of" N.J.S.A. 2A:17-56.9(a). Moreover, the statutory reference to the Guidelines does not benefit defendant. The parties agreed to child support in the amount of $1500 per month in 2005. Even assuming, as defendant contends, that this amount exceeds the Guidelines amount, defendant is not entitled to a reduction until and unless he makes a prima facie showing of a change in the circumstances that were in place when he agreed to pay child support of $1500 per month.
With respect to the allocation of the costs of the parent coordinator and therapist, we are satisfied that the trial judge did not abuse her discretion in denying defendant this relief. The October 17, 2005 order required defendant to pay two-thirds of these costs, based upon the financial information provided to the court at that time. Judge Ramsay properly determined that defendant had not established a basis to justify modification of that allocation.
Finally, we note that the judge denied defendant's requests for relief without prejudice. Therefore, defendant is free to bring another motion for such relief with supporting documentation that comports with the controlling principles.
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