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DeNicola v. DeNicola

July 23, 2010

SHERYL DENICOLA, N/K/A SHERYL HYER, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
DAVID DENICOLA, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-155-06C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 15, 2010

Before Judges Carchman and Parrillo.

Plaintiff Sheryl DeNicola appeals from an order of the Family Part reducing defendant David DeNicola's child support obligation, denying her request for a restraining order against defendant and for counsel fees, and in setting the date of termination of alimony. Defendant cross-appeals from a portion of that same order denying his request for a credit for prepayment of alimony. We affirm in part, reverse and remand in part.

The parties were married on September 16, 1994, separated in June 2004 and divorced on February 14, 2006 by final judgment (FJD), incorporating a marital settlement agreement (MSA). Two children were born of the marriage, on September 14, 1998, and September 12, 2001, respectively.

Defendant owns a landscaping construction business, which, he says, sells landscape designs and installs patios, pool decks, driveways, walkways and landscaping for newly constructed luxury estate homes. For settlement purposes, forensic accountants valued defendant's business in 2005. According to defendant, the forensic accountants took into account the preceding five years of income history, as well as future earnings potential, to impute defendant's business's worth and income for purposes of equitable distribution and spousal and child support. While the parties' 2005 joint tax return showed an income of only $165,333, in the MSA, the parties stipulated to an imputed "taxable income" of $275,000 for purposes of calculating defendant's support obligations. Furthermore, the MSA imputed no income to plaintiff for the first three years post-divorce and $20,000 per year for three years following the initial three-year term. Based thereon, the MSA set defendant's term alimony obligation at $90,000 per year for the first three years and $70,000 per year for two years thereafter, with an up-front non-taxable payment of $25,0000 payable within six months of the FJD. Alimony would terminate earlier upon plaintiff's remarriage. Defendant's child support obligation was fixed at $2000 per month.

Plaintiff remarried on August 22, 2008, and defendant's alimony obligation ceased as of then. By 2009, plaintiff was working twenty hours per week at Wachovia Securities, earning $20,000 annually. Defendant continued operating his landscaping business, although he claims that because of the economic downturn and the housing bust, the nature of his business has changed to more routine seasonal landscaping and maintenance services, resulting in reduced revenues and negative cash flow. Defendant also remarried and he and his current wife, a practicing pediatrician, have a new child.

When her alimony ceased, plaintiff sought an increase in child support as well as other relief. Among other things, plaintiff's January 9, 2009 motion sought to enforce litigant's rights with respect to defendant's past due alimony and lump sum equitable distribution payments; to restrain defendant from physically and/or verbally harassing her and her new husband; and for counsel fees. Defendant cross-moved on February 17, 2009, for, among other things, a reduction in child support due to decreased income and the birth of a child from his current marriage; restraints against plaintiff; termination of alimony prior to August 22, 2008; a credit for prepayment of a "sixth year of alimony"; and for counsel fees.

Following oral argument on March 16, 2009, the Family Part judge reduced defendant's child support obligation to $326 per week effective March 13, 2009. In its recalculation, the court utilized defendant's 2007 taxable income of $168,660 as reflected in his 2007 tax return and made adjustments for parenting time expenses and an "other-dependent" deduction to which defendant was entitled. The judge denied defendant's other requests to terminate alimony before August 22, 2008; for a credit for prepayment of a "sixth year" of alimony; and to prorate his August alimony payment for just twelve days from August 10 to August 22, 2008.*fn1 Moreover, defendant was held in violation of litigant's rights, Rule 1:10-3, and was ordered to pay alimony arrears and partial equitable distribution. Both parties' requests for counsel fees were denied. In its final order, the court did not address the parties' mutual requests for restraints against each other.

On appeal, plaintiff raises the following issues:

I. CONSIDERING THE COURT'S OWN FINDING THAT THE DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE SHOWING OF A CHANGE IN CIRCUMSTANCES AS TO HIS INCOME, THE TRIAL COURT ERRED WHEN RECALCULATING THE RESPONDENT'S CHILD SUPPORT OBLIGATIONS.

A. THE COURT WRONGFULLY USED THE NEW JERSEY CHILD SUPPORT GUIDELINES EVEN THOUGH THE PARTIES' COMBINED INCOME EXCEEDED THE MAXIMUM PROVIDED FOR UNDER THE GUIDELINES.

B. THE COURT FAILED TO ALLOW OR CONDUCT SUITABLE INQUIRY INTO THE [DEFENDANT'S] CURRENT SPOUSE'S INCOME WHEN CALCULATING THE OTHER DEPENDENT DEDUCTION.

II. THE TRIAL COURT ERRED IN MODIFYING CHILD SUPPORT BASED UPON A THREE YEAR AUTOMATIC REVIEW AND IMPROPERLY RELIED UPON AND MISCALCULATED STALE INCOME INFORMATION IN SUPPORT OF SUCH ERRONEOUS AWARD.

III. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S REQUEST FOR RESTRAINTS AGAINST THE RESPONDENT FROM PHYSICALLY AND/OR VERBALLY HARASSING HER AND HER CURRENT SPOUSE WHEN THE PLAINTIFF PROVIDED CLEAR AND CONVINCING EVIDENCE OF THIS HARASSMENT.

IV. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S REQUEST FOR COUNSEL FEES WHEN THE COURT MADE AN AFFIRMATIVE FINDING THAT THE DEFENDANT WAS IN VIOLATION OF LITIGANT'S RIGHTS FOR HIS FAILURE TO COMPLY WITH THE TERMS OF THE PARTIES AGREEMENT.

V. THE TRIAL COURT ERRED BY MODIFYING ITS ORDER DATED MARCH 16, 2009 BASED UPON A LETTER REQUEST, AS FACTUAL DISPUTES WERE TIMELY RAISED BY THE APPELLANT REQUIRING A FORMAL APPLICATION ON SUCH ISSUE.

On cross-appeal, defendant contends the court erred in denying him a credit for prepayment of a "sixth year" of alimony.

I.

Plaintiff challenges the decrease in defendant's child support obligation on a number of grounds, including the lack of changed circumstances, misapplication of the child support guidelines and use of stale financial information. Essentially, plaintiff argues that defendant has not demonstrated changed circumstances because his taxable income in 2007 was the same as reported in 2005, when defendant's child support obligation was fixed in the MSA. Plaintiff also contends that the parties' combined income exceeds the maximum provided by the child support guidelines, and therefore, in fixing defendant's new obligation, the court should have supplemented the guideline figure with a discretionary amount. ...


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