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Durst v. Durst

October 14, 2010

JAMES M. DURST, PLAINTIFF-APPELLANT,
v.
MARY T. DURST, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-194-05-Z.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 31, 2010

Before Judges Simonelli and Waugh.

Plaintiff James Durst appeals from the November 21, 2008, Family Part order denying his motion to reduce child support based on changed financial circumstances. We affirm.

Plaintiff and defendant Mary Durst were married in April 1996, and divorced in May 2005. They have two children, born in 1997 and 2001. Since the time of their divorce, the parties have filed numerous motions and cross-motions seeking various relief. We focus on those parts of the motions and cross-motions relating to plaintiff's repeated efforts to reduce his child support payments.

Pursuant to the parties' Property Settlement Agreement, which was incorporated into the May 9, 2005 final judgment of divorce, plaintiff, a self-employed licensed private detective, agreed to pay $1,317.33 monthly for child support. This amount was calculated in accordance with the Child Support Guidelines based on plaintiff's imputed yearly income of $85,000.

In February 2007, plaintiff filed his first motion to reduce child support based on changed financial circumstances stemming from a loss of several clients, resulting in a decrease in business revenue from approximately $85,000 to approximately $65,000 in 2006, and from new housing costing plaintiff $1,500 monthly. Plaintiff also claimed that defendant's child-care expenses had decreased by approximately $848 monthly, as she no longer paid for a full day of daycare or after-school care.

Defendant countered that plaintiff failed to submit financial information and a Case Information Statement (CIS) evidencing changed financial circumstances, plaintiff's child support obligation was calculated in accordance with the Child Support Guidelines, plaintiff had expended considerable sums to purchase and renovate the property where he now resided, and plaintiff failed to show that he sought additional or alternative work. Defendant also countered that her child-care expenses were approximately $280 weekly during the summer months and on school holidays.

In a March 2, 2007 order, the trial judge denied plaintiff's motion without prejudice for failure to document a reduction in income and demonstrate what efforts he made to avoid the alleged reduction. The judge ordered both parties to exchange updated financial information, including a CIS and 2006 income tax returns, and ordered plaintiff to provide financial information for his private investigator business and a certification from his accountant.

Instead of complying with the March 2, 2007 order, plaintiff filed a second motion to retroactively reduce child support. In a November 2, 2007 order, the judge denied the motion and ordered both parties to provide a CIS as well as full and complete financial information, including 2004, 2005, and 2006 tax returns and W-2s. The judge again ordered plaintiff to provide all financial information for his business and a certification from his accountant.

On April 29, 2008, plaintiff filed a third motion, now claiming he was entitled to a reduction in child support because the $85,000 imputed income on which the monthly support was calculated exceeded his actual 2006 and 2007 income. In a June 20, 2008 order, the trial judge denied the motion because plaintiff had again failed to fully and completely disclose his financial information.

In August 2008, plaintiff filed a fourth motion to retroactively reduce child support. His attorney submitted a certification claiming that plaintiff only earned $28,015 in 2006 and $27,901 in 2007, and that defendant allegedly said that she earns more than plaintiff. Plaintiff subsequently submitted a certification attaching his updated CIS and 2006 and 2007 tax returns; however, he omitted his W-2s, recent pay stubs, and a certification from his accountant. Defendant countered that plaintiff's 2006 and 2007 income ...


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