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Gonzalez-Posse v. Ricciardulli

November 9, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2196-05.

The opinion of the court was delivered by: Parrillo, J.A.D.



Submitted October 6, 2009

Before Judges Carchman, Parrillo and Ashrafi.

In this post-divorce action, defendant Jose Ricciardulli moved for a decrease in his child support obligation, termination of alimony, and counsel fees. Plaintiff Celina Gonzalez-Posse opposed the application on grounds that defendant's claimed change in circumstances was completely voluntary and sought other relief including counsel fees, sole ownership of their apartment in Argentina, and a freeze on defendant's pension accounts. Following a thirteen-day hearing, the trial judge reduced defendant's child support obligation from $446 to $144 weekly, modified spousal support from $500 weekly for five years to $100 weekly for seventeen years, denied counsel fees to both parties as well as plaintiff's remaining requests for relief, save to compel defendant to reimburse plaintiff certain expenses related to their children. Defendant appeals from those portions of the order of June 29, 2007, denying his requests to terminate alimony and for counsel fees and directing reimbursement to plaintiff for certain expenses. Plaintiff cross-appeals from those portions of the order reducing defendant's child support obligation, modifying spousal support, and denying her other claims for relief. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

By way of background, the parties are Argentinean citizens who married in 1995 in Argentina and had three children, all born in Argentina. About a year after the birth of their youngest child, in August 1998, the parties moved to the United States and settled in New Jersey, upon defendant obtaining an H-1B visa.*fn1 Defendant, a lawyer who earned his law degree in Argentina and an L.L.M. at New York University Law School, worked as an associate at the New York law firm Dewey Ballantine, LLP, following which, in 2002, he began working for Hewlett-Packard Financial Services, and then in 2004 for DirecTV Latin America (DirecTV).

In February 2005, the parties separated and in April, plaintiff filed for divorce. On January 23, 2006, the parties executed a Property Settlement Agreement (PSA), wherein defendant agreed to, among other things, pay limited duration alimony for five years after entry of divorce, specifically $500 per week for the first three years and $442.30 per week for the final two years. Defendant also agreed to pay child support of $446 per week, in addition to health insurance premiums for the three children, and 26% of certain of their living, medical and extracurricular expenses. The alimony and child support amounts were determined on the basis of defendant's 2005 salary of $150,000 and plaintiff's 2005 salary of $21,000. The PSA was incorporated into the final judgment of divorce (FJD) of January 25, 2006.

At around this same time, defendant was entering the seventh year of his H-1B visa, having qualified for an extension on January 31, 2005 when DirecTV filed a Labor Certification on his behalf. Unfortunately, however, on January 13, 2006, defendant received a lay-off notice from DirecTV, advising him of his termination effective January 27, 2006. Consequently, DirecTV withdrew its petition for a Labor Certification, resulting in the immediate invalidation of defendant's seventh year as an H-1B resident. Because defendant had exhausted the six-year limitation on extensions as of right in the H-1B program, he was disqualified from obtaining sponsorship from another company. By law, he was required to leave the United States either voluntarily or subject himself to deportation.*fn2

Defendant returned to Argentina around March 15, 2006, after obtaining a temporary tourist visa in order to wind up his affairs.*fn3 In accordance with the PSA, defendant prepaid plaintiff $22,000 in alimony and child support obligations prior to leaving. Upon his return to Argentina, defendant obtained part-time employment as in-house counsel in various Argentinean companies, as well as from private clients, resulting in income for the year 2006, calculated on an exchange rate of 3.11, of US$9,378 gross (US$8,628 net). Thereafter, on December 13, 2006, defendant obtained full-time employment at an Argentinean law firm, Estudio O'Farrell, and his compensation increased to roughly US$26,000 per year, or 7,000 Argentinean pesos per month.*fn4

On October 18, 2006, defendant moved in the Family Part to terminate alimony and reduce his child support obligation based on his forced departure from the United States and his decreased income and earning capacity in Argentina. Plaintiff opposed the motion, alleging defendant orchestrated his return to his homeland to avoid his support obligations, and cross-moved for, among other things, reimbursement of certain of their children's expenses. The court ordered a plenary hearing to determine both the reason for defendant's decreased income and his actual earning capacity.

The ensuing hearing endured for thirteen days. At the close of evidence, the Family Part judge found that "there was no evidence to support [plaintiff's] contention that [d]efendant's termination from DirecTV was voluntary, or that he had deliberately orchestrated his return to Argentina in order to evade his financial responsibilities as set forth in the parties' Property Settlement Agreement." The judge also determined that defendant's income was 7,000 Argentinean pesos per month, which, calculated at the exchange rate of 3.05 at the time of the plenary hearing, equaled approximately US$2,295 per month, or $534 per week.

Accordingly, having found an involuntary and substantial change in circumstances, and based on the Child Support Guidelines using defendant's income of 7,000 pesos per month and plaintiff's claimed weekly income of $530, the judge reduced defendant's child support obligation to $144 per week (from $446). While he rejected defendant's further request to terminate alimony, and left the balance of the original PSA aggregate amount of $88,615 intact, the judge reduced weekly alimony to $100 per week, or $5,200 annually, effectively extending a limited, five year spousal support obligation to seventeen years. In modifying the length of the alimony term, the court found "unusual circumstances," N.J.S.A. 2A:34-23, due to defendant's "departure from the United States immediately following the parties' Divorce and due to Defendant's difficulty in obtaining proper immigration status to be able to return to the United States." The court also expressly allowed future application by plaintiff for upward modification in the weekly alimony amount should defendant either return to the United States, or remain in Argentina, and obtain employment at substantially higher income than his current earnings.

In its June 29, 2007 order, the court also directed defendant to (1) report his income to plaintiff annually, or within 30 days of gaining employment in the United States; (2) pay his support arrears within 60 days of judgment; (3) provide health insurance for the parties' three children; and (4) pay 26 percent of the children's living, medical and extracurricular expenses that are not included, pursuant to the PSA, in basic child support.*fn5 The judge denied both parties' requests for attorneys' fees, and denied plaintiff's ...

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