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Pisciotti v. Pisciotti

November 22, 2010

PATRICIA PISCIOTTI,*FN1 PLAINTIFF-RESPONDENT,
v.
NICHOLAS PISCIOTTI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-759-06C.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 01, 2010

Before Judges Reisner and Sabatino.

Defendant Nicholas Pisciotti ("the ex-husband") appeals from an order of the Family Part dated September 14, 2009 denying his motion to reduce his alimony and child support obligations, and from a November 13, 2009 order enforcing the alimony obligations, ordering him to pay arrears, and ordering wage garnishment to ensure payment of the support amounts to plaintiff, Patricia Pisciotti ("the ex-wife"). We affirm the September 14, 2009 order denying relief for lack of sufficient and competent documentation to establish a prima facie basis for a support modification. However, with respect to the November 13, 2009 enforcement order, we remand for an ability-to-pay hearing.

The parties were married in 1999 and divorced in 2006. At the time of their divorce, they entered into a Property Settlement Agreement ("PSA") obligating the ex-husband to pay the ex-wife $3000 monthly in alimony for seven years, $4207.34 monthly in child support, plus medical insurance for their three children. Since their divorce, the parties have had disputes over custody and parenting time issues, but those issues are not the subject of this appeal.

In August 2009, the ex-husband filed a motion to reduce alimony and child support, contending that his income had substantially declined since the time of the divorce judgment and that his assets, which included several heavily-mortgaged properties, had decreased significantly in value. The ex-husband also asserted that the fitness center business, in which he is a co-investor and an employee, had suffered during the economic downturn, thereby diminishing his compensation from that business. The ex-husband supplied various materials in support of his motion, including his certification, an updated Case Information Statement ("CIS"), and personal income tax returns. The ex-wife opposed the requested modification, contending that the motion was inadequately supported, that the ex-husband's financial situation had not substantially worsened, and that he failed to establish a prima facie case of changed circumstances to warrant a plenary hearing and financial discovery under Lepis v. Lepis, 83 N.J. 139 (1980).

Upon considering the motion submissions and hearing oral argument, the Family Part denied the ex-husband's application in an order dated September 14, 2009, finding that he had not established a prima facie case of changed circumstances. The Family Part judge amplified his reasons on the record on September 16, 2009.

The ex-wife moved for enforcement relief pursuant to Rule 1:10-3, citing the fact that the ex-husband was in arrears on his support obligations. The ex-husband filed a cross-motion, seeking to vacate and reconsider the September 14, 2009 order denying modification, or, in the alternative, to have the court conduct an ability-to-pay hearing to evaluate his present financial circumstances and his capacity to pay his support obligations with his reduced income and his encumbered assets. In his cross-motion, the ex-husband furnished the court with additional financial documents that had not been included in his original motion papers in August 2009, including real estate listings and comparable sales information, mortgage billing statements, copies of monthly rent checks received, and three months of uncertified profit-and-loss statements from the fitness center business. The ex-wife opposed the cross-motion, continuing to assert that the ex-husband was exaggerating his financial distress, and that he had not substantiated a basis for relief from the monthly support he had agreed to in the PSA.

After reviewing the motion submissions and hearing oral argument, the Family Part judge denied reconsideration and declined to conduct an ability-to-pay hearing. The judge also granted enforcement relief to the ex-wife, finding the ex-husband in violation of litigant's rights because of his failure to pay support.

In his oral opinion of November 13, 2009, the motion judge noted that the ex-husband's CIS and its attachments were incomplete and failed to substantiate the financial hardship that he claimed. Among other things, the judge observed that the ex-husband had not provided a "detailed forensic overview of the operation of [his fitness center business] to indicate a downward income[-]generating position that would correlate directly to his ability to receive a salary or income from that entity." As to the ex-husband's property holdings, the judge recognized that "the commercial real estate market is stagnant[,]" but that the ex-husband had failed to buttress his contentions by demonstrating that he had made a good faith attempt to sell those properties, or by providing adequate proof that the properties "are so encumbered that the sale of them would result in a deficit closing." Consequently, the judge ordered the ex-husband to pay the ex-wife $14,972.09 in arrears, or otherwise face sanctions. The judge denied, however, the exwife's application for counsel fees.

Although it is not the subject of the present appeal, the trial court conducted an additional hearing on December 11, 2009, following which the ex-husband was required to submit a certification attesting to his efforts to comply with the court's support order. Thereafter, on April 21, 2010, another order was entered by the trial court. Although that order largely addressed custody issues, it also granted the ex-wife's request for wage garnishment and noted that arrears were to be determined at a later date. Counsel fees of $1262.50 were awarded to the ex-wife. The court explained that the ex-husband "appear[ed] to have the ability to pay [counsel fees] because he did produce $10,000 [in] cash at the December 11, 2009 bench warrant hearing."

In the meantime, the ex-husband filed the present appeal. During the pendency of the appeal, we note that various other orders in this case have been issued by the Family Part. Although a portion of the alimony was temporarily suspended pending the appeal, none of the ensuing orders entered by the trial court have effected a modification of the ex-husband's support ...


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