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Lucante v. Lucante

November 15, 2010

TRACY LUCANTE, PLAINTIFF-APPELLANT,
v.
VINCENT LUCANTE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-644-05-F.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 24, 2010

Decided: July 29, 2010 Motion for reconsideration granted.

Resubmitted: August 26, 2010

Before Judges Payne and C.L. Miniman.

Plaintiff Tracy Lucante appeals from a final order entered on December 18, 2008, reducing defendant Vincent Lucante's child support and alimony obligations. This order was not served on counsel in the matter until February 2, 2009, at which time a January 14, 2009, written opinion was also served on counsel, although an oral decision had been placed on the record on December 18, 2008.*fn1 When the matter was first before us, we dismissed the appeal as untimely measured from the December 18, 2008, order. Plaintiff moved for reconsideration based on the judge's failure to serve the December 18, 2008, order, which we granted and now address the merits of the appeal.

As a preliminary matter, we specifically disapprove of this practice.*fn2 Rule 4:42-1(e) requires a judge signing an order to file the original in accordance with Rule 1:5-6(b) and return a copy to the attorney who submitted the order or judgment. This rule applies to Family Part actions by virtue of Rule 5:1-1. The time for appeal runs from the entry of a final judgment or order, not its service on counsel. See R. 2:4-1(a) ("Appeals from final judgments . . . shall be taken within 45 days of their entry."). Service of an order must be made on the day of its entry in order to maintain the certainty that Rule 2:4-1(a) seeks to establish with respect to the timeliness of an appeal and to the finality of judgments. We have, nonetheless, determined to decide the issues before us on the merits and now affirm.

This is an appeal from a post-judgment reduction in child support based on changed circumstances. The parties were mar- ried on June 11, 1994; they subsequently divorced on July 19, 2005. There were two children born of the marriage, one in 1997 and another in 1999. Plaintiff has residential custody of both children.

The parties entered into a Property Settlement Agreement (PSA) that was incorporated into their July 19, 2005, Judgment of Divorce (JOD). The PSA established child support as follows:

Husband shall pay to the Wife as and for support for the unemancipated children of the marriage the sum of $215.00 every week, payable on Friday of every week. The child support amount is based on the annual gross income of $75,000.00 for the Husband, who is employed as a licensed Captain for Port Imperial Ferry Corporation as well as Cornucoppia [sic] Cruise Lines, Inc.[,] and imputed income of $18,200 for the [W]ife. For purposes of child support calculations, the gross annual income of the Wife shall be used, or Wife's [two words unreadable] annual income of $18,200 shall be [line missing]. Child support is deviation from C[hild] S[upport] Guidelines.

The PSA also required defendant to pay limited duration alimony for seven years. He was to pay $350 per week during the first year, $300 per week during the next three years, and $250 per week for the last three years.

At the time of the divorce, defendant was employed by New York Waterway as a Captain. In that position, he worked over- time and was also employed part time by Cornucopia Cruise Lines. In January 2007, defendant was promoted by New York Waterway to the position of Port Captain. In this position, defendant was not paid for overtime work and was not permitted to be employed elsewhere. With the loss of overtime and secondary employment, defendant's income was reduced to his $56,000 salary.

Although defendant's income was effectively reduced, the position of Port Captain presented opportunities for future advancement within New York Waterway, which could benefit his former wife and children in the long run. Defendant sought a reduction in his spousal and child support obligations on Octo- ber 9, 2007. That relief was granted on April 23, 2008, after a full plenary hearing, and on May 12, 2008, the judge entered an order reducing spousal support for years two through four from $300 per week to $218, and for years five through seven from $250 to $168. Child support was reduced from $215 to $188. Plaintiff did not appeal this final order.

However, while the decision was pending, defendant accepted a position on March 31, 2008, with the Delaware River and Bay Authority (Delaware Authority) as an "Able Bodied Seaman, 2nd Class." His former employer held his Port Captain position open. On June 6, 2008, plaintiff moved to vacate the May 12, 2008, order. Defendant did not oppose this relief. He did, however, send a letter to the judge on August 12, 2008, in which he explained his concerns about continued employment with New York Waterway in light of declining economic circumstances.

[I]f NY Waterway were to either close or significantly downsize[,] the flood of marine personnel would greatly impact the New York Harbor area. Re-employing myself would be difficult. Since there is the opportunity to advance in the Delaware . . . Authority[,] . . . I acted on the best interest of my children to not only financially support my obligations but to fully insure my children with medical, dental and optical coverage. . . . Also, this organization offers college scholarships and funds to assist in part or wholly on children's education.

Defendant then submitted his most recent pay stubs and discussed other financial information respecting his pay and work sched- ule. Defendant also attached a letter from the Delaware Authority stating that it was offering him a "permanent full-time" position. The judge ultimately granted plaintiff's motion on October 14, 2008, reinstating defendant's alimony and child- support obligations under the PSA, effective March 31, 2008. Employment with the Delaware Authority allowed defendant to upgrade his seamen's license, which had been limited to vessels of up to 1600 gross tons. After defendant completed the requisite number of hours to upgrade his license, defendant returned to his position as Port Captain for New York Waterway on October 5, 2008, apparently shedding his concerns about the security of that employment. Thus, even before the judge entered the order on plaintiff's motion for reconsideration, defendant had returned to his former employment as Port Captain, where he received a $4000 raise, making his gross salary $60,000. Defendant again sought a reduction in his spousal and child support obligations on or about November 11, 2008.

Plaintiff opposed the motion and filed a cross-motion, the resolution of which is not before us. Plaintiff disputed defendant's claim that his employment with the Delaware Authority was only temporary in nature, citing his letter of August 12, 2008, and the attached letter from the Delaware Authority describing his employment as permanent full-time work.

The judge heard oral argument on December 18, 2008, and decided the motions without taking any testimony. He stated that he was inclined to grant defendant's application and denied plaintiff's request for a stay. After the judge made these rulings, plaintiff requested that the term of her alimony be increased as a result of the downward modification in the amount of alimony. The judge refused to order such relief "without having both parties have a chance to fully explore and address that."

In his January 14, 2009, opinion, as modified on March 27, 2009, the judge discussed the evidence at the earlier plenary hearing and the findings he made in 2007:

On January 13, 2007, [d]efendant was promoted to Port Captain, a promotion which, however, resulted in a reduction in defendant's annual salary from $75,000.00 to $56,000.00. The promotion restricted the defendant's ability to work overtime and engage in outside employment. Defendant testified that as Port Captain, he is ineligible for overtime and outside employment. It is a salaried position where he is on-call 24 hours a day, 7 days a week, to respond to emergencies and other incidents. The defendant testified that while the position of Port Captain provides a lower salary, it is a stepping stone to higher positions in the company, including Senior Port Captain and/or Vice President of Operations. There are 40 Captains employed by New York Waterways, but only two Port Captains. Company representatives, on behalf of the defendant, testified that outside employment is not possible when employed as a Port Captain. At the time of the hearing, the [c]court found that the defendant's acceptance of a promotion was reasonable and made in good faith for the purpose of advancing his career. . . .

At the time of the hearing, the [c]court raised the issue of the defendant delaying the promotion of Port Captain until his spousal support was terminated. The expiration of the spousal support term, pursuant to the Property Settlement Agreement, is July 19, 2012. The defendant argues, however, that the purpose of the promotion, while decreasing his pay, is to acquire later long-term benefits within the company, including future promotions and salary increases. Yet, because those promotions and salary increases are uncertain, said benefits may not be available to the defendant until the end of [the] spousal support term. At that point, the plaintiff could no longer receive the benefit of the defendant's temporarily lowered income. Still, once the defendant's higher position, with its accompanying lower salary, ends, there is no guarantee that he would receive further promotions or a higher salary.

The [c]court found, following the hearing, that the defendant's situation is a "changed circumstance" within the meaning of the statute, thereby warranting a reduction in his spousal support obligation based on his decreased pay. The [c]court acknowledged that it may appear inequitable for the defendant to obtain a promotion with a salary decrease and secure a reduction in spousal support during the agreed upon term, only for the defendant to receive another position with increased income after his term ...


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