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Guardiola v. Ellis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 28, 2010

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, Docket No. FD-05-452-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2010

Before Judges Lisa and Reisner.

Defendant, Kenneth J. Ellis, appeals from a post-judgment order of January 19, 2010 denying his motion to decrease his child support. He argues that he demonstrated a material change in circumstances because three of the parties' oldest children were emancipated by an order of April 27, 2007. He further argues that his weekly child support obligation of $100.11 must be modified because it places him below the Self-Support Reserve (SSR).

The trial court rejected defendant's motion because defendant had "presented this argument in the past," but had still "not provided sufficient information regarding his current financial situation and lack of employment to merit a change of circumstances." The record supports the judge's reasons for denying the motion. The denial was in accord with the controlling legal principles and within the judge's discretion. Defendant's arguments on appeal lack sufficient merit to warrant extended discussion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the trial judge in his written statement of reasons dated January 19, 2010. We add the following brief comments.

The parties divorced in New York in 1997. The divorce decree inputed to defendant annual income of $18,000 and ordered him to pay child support of $100.11 per week for the support of the parties' four children. The order also allocated health care and educational expenses between the parties. All but the youngest child are now emancipated.

Prior to the motion that is the subject of this appeal, defendant made two similar applications in New Jersey courts. As in this case, defendant failed on those occasions to provide his current financial information. Those applications were denied, and in two prior appeals, we affirmed the denials. See Guardiola v. Ellis, No. A-5400-06 (App. Div. December 27, 2007); Guardiola v. Ellis, No. A-1515-08 (App. Div. November 25, 2009).

In the present application, defendant provided the trial court with no income tax returns, current case information statement, or evidence of any efforts he was making to search for employment. Without that information, defendant could not make the requisite showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980); Aronson v. Aronson, 245 N.J. Super. 354, 360-61 (1991). Therefore, although the emancipation of three of the four children is relevant to a changed circumstances analysis, without the required financial information, no such analysis could be conducted in a meaningful way.

Defendant's SSR argument also lacks merit. The SSR is an amount calculated to ensure that a non-custodial parent "has sufficient income to maintain a basic subsistence level and the incentive to work so that child support can be paid." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2434 (2010). Defendant argues that the maximum annual support for which he should be liable is $2002. His calculation is based upon New York's SSR, see N.Y. Dom. Rel. Law § 240.1-b(b)(6) (Consol. 2010) (setting the SSR at 135% of federal poverty guidelines for a single person), a 7.65% FICA allowance as calculated in the divorce decree, and the $18,000 imputed income figure.

However, New Jersey's SSR formula is different, and employs a 105% above-the-poverty-line standard. Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 2434. Applying the New Jersey formula to defendant's $18,000 annual inputed income, defendant's support obligation does not exceed his SSR.

Affirmed.

20101028

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