On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-493-05Z.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2010
Before Judges Parrillo, Yannotti and Espinosa.
Plaintiff Kathleen Ungvarsky (Kathleen) appeals from three provisions in two post-judgment matrimonial orders that: denied her request to impute income to defendant John Ungvarsky (John); retroactively reduced child support based exclusively upon John's unemployment benefits; and denied her request for discovery regarding John's finances. John cross-appeals from an order denying his cross-motion for a change in custody to him. We reverse the orders regarding John's child support obligation and denying discovery and remand the matter for a plenary hearing. On the cross-appeal, we affirm the denial of John's cross-motion.
The facts relevant to this appeal can be summarized as follows. Kathleen and John were married in April 1993 and had four children. They agreed to a property settlement agreement (PSA) on May 22, 2005 and a subsequent addendum, both of which were incorporated into the Judgment of Divorce (JOD) entered on January 30, 2006.
Pursuant to the PSA and JOD, the parties share joint legal and physical custody of the children. Kathleen is the parent of primary residence. Under the PSA, John was to have one hundred twenty-two overnight visits per year with the children. The former marital residence was valued at approximately $600,000. John, who remarried in 2007, purchased Kathleen's interest for a sum of $207,477 by refinancing the mortgage solely in his name.
John's child support obligations under the PSA were scheduled to begin June 1, 2005, "in the sum of $1,000 per month for the four children of the marriage, for a maximum of four months. . . ." On May 22, 2005, the addendum to the PSA altered John's child support obligation, providing:
1. Child Support. Commencing February 1, 2006, Husband shall pay the sum of $2,000 per month to Wife as child support for the parties' four minor children. . . . Husband shall continue to pay said level of child support for a period of thirty-siX (36) months, and both parties agree that said level of child support shall not be modified during the 36-month period of time notwithstanding any increases or decreases in either of their incomes. At the end of the 36-month period, the parties shall renegotiate the amount of child support payable for the four minor children.
The parties agree that any and all support arrears owed by Husband as provided for in the present Agreement would be eliminated, and that, as set forth above, the new child support amount would commence February 1, 2006.
At the time John agreed to these terms, he was unemployed. In fact, he earned no income in 2005. During the marriage, Kathleen was not employed outside the home. After working as a real estate closing agent, she was eventually able to find employment as a teacher at an annual salary of $51,939.85.
In February 2008, Plaintiff filed a pro se motion, seeking, in part, the following relief: to require defendant to produce 2007 and 2008 income information and tax returns and to fully complete a Case Information Statement (CIS); and to impute income to defendant in order to calculate a new support amount.
In March 2009, John filed a responsive certification, asking the court to deny plaintiff's motion, and a cross-motion, seeking: a transfer of residential custody to him; referral of the custody issue to mediation; to require Kathleen to pay child support to him; and to award counsel fees and costs.
John declared that he suffered significant financial difficulties as a result of his unemployment, which forced him to liquidate many of his assets, take out a second mortgage on his home, and incur sizable credit card debt. His CIS reflects a $9,135.41 decrease in his 401(k) plan from January 1, 2009, to March 8, 2009. As of March 2009, his CIS showed $38,282.61 in his 401(k) plan and $13,609.45 in his traditional IRA. He stated that he failed to pay his mortgage payments for February and March 2009. A real estate tax deficiency of $5,435.49 as of February 2009 was satisfied. Notwithstanding these difficulties, John maintained that he met his financial obligations to Kathleen.
In support of his request for a change in custody, John asserted a change in circumstances regarding the environment provided for the children. He contended that Kathleen allowed men to spend the night at the house while the children were present; that she has displayed obsessive, controlling behavior, and has refused to seek treatment for a diagnosed obsessive-compulsive disorder and a possible eating disorder. Although John provided no evidence to support such diagnoses or ...