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Guardiola v. Ellis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 25, 2009

MARIA L. GUARDIOLA, PLAINTIFF-RESPONDENT,
v.
KENNETH J. ELLIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FD-05-452-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 16, 2009

Before Judges Rodríguez and Reisner.

Defendant Kenneth J. Ellis appeals from an October 3, 2008 order denying his motion to modify child support. We affirm.

We detailed the pertinent history of this case in Ellis's prior appeal, Guardiola v. Ellis, No. A-5400-06 (App. Div. Dec. 27, 2007). Briefly, the parties were divorced in New York in 1997. The divorce judgment imputed income to Ellis, and required him to pay $100.11 per week in child support for the couple's four children. The support order was later registered in New Jersey, and by order dated April 27, 2007, a New Jersey trial court emancipated the three oldest children, and ordered defendant to contribute to the college expenses of the youngest child, then age eighteen. By order dated May 10, 2007, the court denied defendant's motion to reduce his child support obligation with respect to the youngest child, based on defendant's failure to support the motion with a case information statement and other necessary proof of changed financial circumstances. We affirmed. Guardiola, supra, slip op. at 5.

On August 26, 2008, defendant once again filed a motion seeking to modify his child support obligation and adjust the arrears.*fn1 However, the trial court denied the motion. In a written statement of reasons dated October 3, 2008, Judge Rauh found no proof of changed circumstances. In particular, the judge considered that although defendant claimed to be unemployed he "does not provide any information as to whether he is currently looking for employment." The judge also denied the application to adjust the arrears, because defendant's child support obligation "was previously calculated with only [the younger child] as a listed child. Defendant is no longer providing child support for the three emancipated children." The court's October 3, 2008 order required defendant to continue to pay $100.11 per week for the youngest child only.

On this appeal, defendant raises the following point for our consideration:

THREE YEARS IN COURT WITHOUT ANY DECISION THAT RESEMBLES THE LAW FROM WHICH THIS CASE EMERGES. THE CHILDREN ARE NOT FOUR, THEY ARE ONE, THE LAW SAYS THEY WERE EMANCIPATED.

THE ARREARS ARE BASED ON FRAUDULENT INFORMATION KNOWINGLY PROVIDED BY THE RESPONDENT, CLAIMING FOUR. THE CAPE MAY COURT HAS FAILED TO READ THE LAW, JUSTIFY ITS DECISION, SEEK THE FACTS OR ACKNOWLEDGE THE FACTS IT WAS GIVEN. CHOOSING TO IMPEDE[] THE APPELLANT'S EMPLOYMENT AND WITH THE RESPONDENT'S HELP, DELAY SATISFACTION OF A DEBT.

To the extent that defendant's arguments concern a motion he filed in June 2009, those contentions are not properly before us because that motion was filed after the October 3, 2008 order which is the subject of this appeal. We conclude that defendant's remaining appellate contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated by the trial judge. We add the following comments.

In reviewing this appeal, we note that many of the facts cited in defendant's brief are not supported by citations to any record evidence. However, having considered the record presented to us, we find no error in the trial court's decision. From the entry of the divorce judgment onward, defendant's persistent failure to pay child support based on his alleged inability to find employment has been a theme in this protracted litigation. The original child support award was premised on the imputation of income to defendant, and since then the court has repeatedly ordered defendant to diligently seek employment.

Defendant's most recent claim of changed circumstances was based on the purported difference between his income and that of plaintiff. However, given the history of this case, it was his burden to present proof of his current financial situation, and to establish that his alleged lack of income was not due to his voluntary unemployment. See Lepis v. Lepis, 83 N.J. 139, 157 (1980); Aronson v. Aronson, 245 N.J. Super. 354, 360-61 (App. Div. 1991). Without that evidence, the court could not fairly judge defendant's motion to reduce child support, including his contentions that $100 per week was excessive in light of defendant's income and that it was unreasonably duplicative of defendant's separate obligation to contribute to the son's college expenses. We affirm the order on appeal without prejudice to defendant's right to file a future motion, properly supported by evidence.

Affirm.


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