On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0968-02-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Payne, C.L. Miniman and Waugh.
Plaintiff David R. Good appeals from the denial of his April 14, 2008, motion for an increase in child support retroactive to January 1, 2006. In that motion, he alleged that defendant Denise M. Nedza made a fraudulent representation to him and the court about her income that caused him to enter into a January 11, 2006, consent order, which in part established her child-support obligation at $125 per week for the parties' three children, retroactive to January 1, 2006. Because the time for relief from the January 2006 order expired after one year pursuant Rule 4:50-2, and because plaintiff failed to demonstrate a change in defendant's income subsequent to that date, we affirm.
On November 7, 2002, a final dual judgment of divorce was entered dissolving the parties' marriage. Three children were born to the marriage: a daughter in 1990, a son in 1991, and another daughter in 1995.
At the time of the divorce, plaintiff was employed in a lucrative position and defendant was the homemaker. In the Property Settlement Agreement (PSA) incorporated into the divorce judgment, the parties agreed they would share joint legal custody of their children and that defendant would have primary residential custody of the children. Plaintiff agreed to pay $330 per week in child support, which would be reviewed three years after execution of the PSA, if appropriate.
Subsequently, a July 20, 2004, order was entered upon joint application of the parties granting plaintiff residential custody of the parties' son, with defendant retaining residential custody of their daughters. The order further provided:
The parties agree that the current child support arrangements shall continue until such time as modified pursuant to the Final Judgment of Divorce. Husband acknowledges that until such time as the modification occurs, and the same is anticipated in August of 2005, he will not be in need of child support from the wife. He shall continue to pay the current level of child support to wife which he is now paying to her.
When it came time for the August 2005 review, plaintiff alleged defendant misrepresented her employment status by claiming that she was unemployed when she had actually been working as the manager of a recording studio in New York City since the summer of 2003. Further, plaintiff sought a transfer of custody of the parties' two daughters. In support of plaintiff's claim that defendant misrepresented her employment status, plaintiff attached an article published in New York Magazine on November 10, 2003, that identified defendant as the manager of The Studio in New York City. Additionally, plaintiff engaged a private detective service that verified defendant was then employed by The Studio and that she "ran the place" when the owner was not present.
On August 11, 2005, defendant submitted a certification in opposition to plaintiff's motion in which she stated that she was "totally reliant upon . . . alimony," and that she was "not currently employed but [was] seeking full-time employment." In an updated Case Information Statement (CIS) dated August 12, 2005, defendant certified that she was to start a new part-time job on September 12, 2005, at which she expected to earn $300 per week in addition to the $450 weekly alimony she was receiving. Defendant's 2004 federal income tax return showed her only income to be $23,400 in alimony plus $46 in taxable interest.
On September 7, 2005, a consent order was entered transferring residential custody of the parties' two daughters to plaintiff. That order terminated plaintiff's child-support obligation. It further provided that defendant's child-support obligation was to be based upon plaintiff's annual income of $150,000 and defendant's imputed annual income of $25,000, pending review at a plenary hearing. The parties thereafter engaged in discovery, including a deposition of defendant in which she was confronted with the New York Magazine article and the report of the private investigator. After discovery was completed and in anticipation of the scheduled plenary hearing, the parties consented to a January 11, 2006, order setting defendant's weekly child-support obligation at $125 per week for the three children retroactive to January 1, 2006.
On April 14, 2008, plaintiff filed an application seeking an increase in child-support payments based on an imputed income to defendant of "$85,000.00 per year direct salary plus $25,000 subsidized life style (free apartment, Jaguar, vacations)." In the application, plaintiff claimed that increased child-support payments should be made retroactive to January 1, 2006, because defendant's "income was erroneously imputed at $25,000.00 as a direct result of [d]efendant's misrepresentation as to her true income." Plaintiff also moved for [c]hild [s]upport arrears to be calculated retroactive for the period July 1, 2004 ...