January 27, 2010
JAMES B. JEFFERSON, PLAINTIFF-APPELLANT,
JOAN L. SULLIVAN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1204-01-X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Graves and Newman.
Plaintiff James Jefferson appeals from an order of March 6, 2009. We affirm.
The following background is necessary for an understanding of the issues raised by plaintiff. Plaintiff and defendant Joan Sullivan were married on September 7, 1991, and divorced on May 29, 2001. Three children were born of the marriage and are now eighteen, sixteen, and thirteen years of age. They are all boys.
The parties used a pro se divorce package and agreed that plaintiff would provide child support of $300 per week. He was then earning $500 per week as a self-employed personal trainer. They agreed to joint legal custody but that defendant would have primary residential custody.
Plaintiff has since engaged in a litany of litigation seeking a reduction of his child support. On February 1, 2003, he was denied custody of his children; he also sought credit of direct payments of child support, and that relief was denied.
On January 9, 2004, plaintiff's motion to reduce his child support obligation and obtain an audit of his child support account was denied by the court. In that order, the court also clarified his parenting time by memorializing his visitation to three weekends or six days per month.
Once again, on October 26, 2007, plaintiff's motion to reduce his child support obligation was denied, but the court granted his request for probation to audit his account. He has since sought further reduction in his support payments and was denied that relief on April 25, 2008.
In this most recent effort by way of a cross motion to defendant's motion for supervised parenting time because he allegedly did not furnish prescribed medication to his middle son, plaintiff sought reduction of the $1,200 per month child support which had increased because of a support arrearage payable in monthly installments as well as an increase in support due to the cost-of-living index percentage which was added to the child support amount.
He had previously been ordered to pay $780 in attorney's fees and conceded that payment had not been made. Plaintiff pointed out that he filed for bankruptcy in June 2008, that he listed defendant's attorney as an unsecured creditor, and that he has been making payments under an approved plan. He also indicated that child support arrears are also part of the bankruptcy plan and payments are made to the Trustee.
Before the trial court, he claimed that he earns $450 per week and has remarried with four step-children and a step-grandchild. At the time the final judgment of divorce was entered, the child support obligation was based on earnings of $500 per week. He further asserted that the $300 per week support obligation that he currently has is comprised of $206 per week in child support, plus $94 per week for defendant's living expenses. He also contended that his oldest son has asked to live with him and wrote a letter to that effect. Defendant denied that this is so. Plaintiff asked that the child be interviewed at a plenary hearing. Plaintiff additionally contended that his support obligation should be reduced because of the number of overnights that his three sons spend with him. Plaintiff calculated that he has had seventy-eight overnight visitations with the children. Defendant disputed his calculations.
In addressing the issues, the motion court granted defendant's motion to require that the middle son's prescribed medication be provided to him; denied that plaintiff's visitation with that son be supervised; denied a motion to incarcerate plaintiff for continued failure to pay counsel fees because the debt was now part of the bankruptcy plan and the court could not interfere with that plan; denied defendant's motion to suspend plaintiff's driver's license until he brings his child support arrears current, noting that the arrears were being paid through the bankruptcy plan's Trustee; and denied defendant's motion for counsel fees.
The court granted plaintiff's motion to enforce a prior order requiring defendant to inform plaintiff of matters involving the health, safety, and education of the children, but it denied without prejudice plaintiff's motion to be named the parent of primary residence (PPR) for the oldest son or to order a plenary hearing on this issue. Instead, the court directed that the parties participate in a Custody Neutral Assessment (CNA) on this issue, dividing the cost of the therapist between the parties at sixty-five percent for plaintiff and thirty-five percent for defendant. The court observed that the CNA process will allow the parties to "express their views on custody to a therapist, who shall also interview [the oldest son] in a therapeutic setting, which is preferable to a Courtroom." The court commented that, after the report is received by the parties, either party can move and seek a plenary hearing.
The court denied plaintiff's motion to modify child support without prejudice. The court did not find that there has been a change of circumstances requiring modification. Furthermore, the court noted there was not a substantial change in circumstances from the purported $450 plaintiff now earns from the $500 he earned when the child support was agreed to in the final judgment of divorce. The court went on to observe:
[m]oreover, as was the case in his prior motions, plaintiff still does not explain why he is not earning at a much higher level. The wage compendium for fitness trainers indicates that the average annual salary for this profession is $40,310, which is $775 per week.
With regard to the dispute as to the overnights plaintiff spends with his three children, the court thought this issue could be better addressed in the CNA.
Because the court did not find that plaintiff met the Lepis*fn1 change of circumstances standard, defendant was not obliged to submit her financial information. The court further remarked that the issue could be addressed following the completion of the CNA.
The trial judge further elaborated on his order of March 6, 2009 in an April 30, 2009 letter submitted pursuant to Rule 2:5-1(b). The court observed that defendant's Case Information Statement (CIS) was not fully documented and that the same federal tax return that was submitted prior to the court's order of April 25, 2008 was resubmitted. The trial court noted that the 2008 income information needed to be submitted before child support can be set, referring to Appendix IX-B to the Court Rules. As pointed out by the court, plaintiff had the burden to comply with the Court Rules in order to establish a prima facie case of changed circumstances and did not do so. See R. 5:5-4. The court commented on the CNA that the parties were ordered to participate in therapy with a skilled therapist. The court addressed plaintiff's contention that child support was only $206 and that $94 was "towards living expenses and back bills and was in effect an alimony component." This issue had been raised in previous motions and was denied. The parties always treated the $300 as child support. Even if plaintiff could raise this issue, he could not provide any documentary evidence to support his position after using the $300 figure as child support for almost eight years.
On appeal, plaintiff raises the following issues for our consideration.
STANDARD OF REVIEW [IS DE NOVO].
THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S CROSS-MOTION TO RECALCULATE HIS CHILD SUPPORT OBLIGATION BECAUSE THE PLAINTIFF DOES NOT RECEIVE CREDIT FOR OVERNIGHT PARENTING TIME UNDER THE CHILD SUPPORT GUIDELINES.
THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S CROSS-MOTION TO RECALCULATE HIS CHILD SUPPORT OBLIGATION BECAUSE THERE IS A $94 PER WEEK COMPONENT THAT SHOULD NOT BE INCLUDED AS CHILD SUPPORT AS IT WAS INTENDED TO BE PAYMENT FOR BACK BILLS AND FOR HOUSEHOLD EXPENSES.
THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S CROSS-MOTION TO RECALCULATE HIS CHILD SUPPORT OBLIGATION BECAUSE THE DEFENDANT HAS INCREASED INCOME FROM THE TIME THE CHILD SUPPORT GUIDELINES WERE ORIGINALLY CALCULATED WHICH HAS NOT BEEN FACTORED INTO THE CHILD SUPPORT GUIDELINES.
THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S CROSS-MOTION TO RECALCULATE HIS CHILD SUPPORT OBLIGATION BECAUSE PLAINTIFF HAD AN INVOLUNTARY REDUCTION IN INCOME FROM THE TIME THE CHILD SUPPORT GUIDELINES WERE ORIGINALLY CALCULATED.
THE TRIAL COURT ERRED IN NOT CREDITING THE PLAINTIFF'S CHILD SUPPORT ACCOUNT FOR PAYMENTS MADE DIRECTLY TO THE DEFENDANT.
We need not address each point individually because we are satisfied that the trial court properly denied any reduction in child support. We further are persuaded that the implementation of the CNA process was an appropriate method to evaluate the wishes of the oldest child as to where he prefers to live although that single factor is not determinative of the issue. The court also indicated that the parties could flush out the number of overnights that the children spend with plaintiff through the CNA. Because of these variables, the trial court's denial of a reduction in child support was without prejudice.
With regard to the component of whether $94 should be included as child support or as alimony, this issue had been previously addressed by the trial court and determined adverse to plaintiff's position. Plaintiff raised this issue in connection with the October 26, 2007 post-judgment order and did not supply documentation to support the claim. He did not appeal that decision. He brought it up again on March 6, 2009. The April 30, 2009 letter noted that plaintiff unsuccessfully raised this issue and it was decided against him. The issue cannot be timely reviewed now when it was previously decided and not appealed. R. 2:4-1.
The same scenario applies to the contention that the trial court did not credit plaintiff's child support account with payments made directly to defendant. This issue was previously denied in the January 9, 2004 order. Any credit for payments made in the past have already been litigated and no appeal was taken. It is much too late for plaintiff to raise the same adjudicated issue again which was not timely appealed. Ibid.
Lastly, plaintiff's contention that the child support should be recalculated because defendant's income has decreased is rejected. Plaintiff had to demonstrate a change of circumstances which he failed to do. Meanwhile, defendant's financial needs for the children has grown as they have aged. Defendant was not obliged to submit her financial information where plaintiff has not shouldered his burden to meet the change of circumstances standard required under Lepis, supra. Implementation of the CNA provides a vehicle for input and an opportunity to calculate the oldest child's future living arrangements and the number of overnights the children actually spend with plaintiff in this highly-contested matter. With the results of the CNA compiled in the therapist's report to the court, plaintiff may also submit a fully-documented CIS reflecting his income as a self-employed personal trainer with the most current federal and state income tax returns in support of an application to reduce his child support payment. We can only echo the trial court by encouraging the parties to participate in the CNA if they have not already done so.