January 25, 2011
DEBORAH N. RIGGS, PLAINTIFF-RESPONDENT,
ENRICO J. CIARROCCHI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-61410-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010
Before Judges Payne and Koblitz.
Defendant, Enrico J. Ciarrocchi, appeals from orders of a judge of the Family Part denying his motion for reduction of his obligation to provide child support to zero and denying reconsideration.
This appeal charts familiar territory, since defendant presented the identical facts and legal arguments regarding child support to us in an appeal argued on March 11, 2008 and decided on March 30, 2009. See Riggs v. Ciarrocchi, No. A-5538-07T3 (App. Div. March 30, 2009). We again affirm.
The record discloses that defendant and plaintiff, Deborah
N. Riggs, were divorced on March 20, 2001. At the time of the divorce, the parties had three children: a daughter born in May 1987, another daughter born in October 1990, and a son born in October 1993. At the time of the present motion the older daughter was in her fifth year of college, the younger daughter was commencing her first year of college, and the son, who is learning disabled, was in high school. None of the children was emancipated.
In a Property Settlement Agreement (PSA), entered by the parties at the time of their divorce, the parties acknowledged that defendant was then disabled and was receiving net disability income of $4,441 per month, consisting of monthly private disability insurance policy payments of $3,000 and Social Security disability benefits of $1,441. Both parties were represented by counsel in connection with the divorce and negotiation of the PSA.
Thereafter, defendant negotiated with his disability insurer, Unum, for a lump-sum payment of benefits in the amount of $360,000. In connection with the settlement, the insurer received assurances from defendant's treating psychiatrist that defendant, who had been diagnosed as suffering from a bipolar disorder, had the "ability to consider a proposal relative to his disability benefits" and that he was "fully capable of understanding the concept involved and of making well-reasoned financial plans and decisions for his future."
Defendant, a certified public accountant with a master's degree in business administration, then attempted to establish his own business, which, after two years of operation from 2004 to 2006, failed financially. Defendant claims not to have worked since that time and to have subsisted on Social Security disability benefits of $1,700 per month. He ceased payment of child support in November 2006 when his business failed.
Following defendant's decision to terminate child support, plaintiff moved in Camden County for enforcement of his obligations pursuant to the PSA. Oral argument on the motion occurred on February 29, 2008, after which Judge Rand granted plaintiff's motion to enforce defendant's child support obligation. We described the judge's reasoning in our prior opinion in the following terms:
In particular, the judge concluded that the three children of the marriage should not be forced to forego their right to child support simply because their father chose to reduce his disability insurance payment to a lump sum and then spent all of the money he received from doing so. [Id. (slip op. at 3).]
The judge also declined defendant's request to vacate defendant's arrears, at that time calculated to be $23,474, noting that N.J.S.A. 2A:17-56.23a prohibited the retroactive modification of his child support obligation.
Thereafter, defendant moved in Burlington County for an order vacating his arrears and eliminating his child support obligation. The motion was heard by Judge Claypoole, who concluded in her May 9, 2008 order denying defendant's request to vacate arrears: "There has been no change in circumstances since the parties' divorce" and the reduction in defendant's finances "was of his own making." In denying defendant's request for elimination of his child support obligation, the judge found, as we described it previously, "that defendant's unilateral decision to cash in his disability insurance policy, followed by his dissipation of those proceeds, did not constitute a legally cognizable change of circumstances." Id. (slip op. at 4). A motion for reconsideration was denied.
Following defendant's appeal from Judge Claypoole's orders and oral argument before us, we issued the decision of March 30, 2009, to which we have made reference, affirming the judge's order.
Six months later, in September 2009, defendant again sought the same relief. His motion was heard on October 9, 2009 and denied. In his order, Judge Terrence Cook noted that none of the children had been emancipated, and that the eldest lived at home and commuted to college. Defendant did not contribute to his daughters' college expenses. The judge rejected defendant's argument that his support obligation should be reduced as the result of plaintiff's remarriage holding, pursuant to Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998), that remarriage does not result in the imposition on the new spouse of the obligation to support someone else's child. The judge, citing Lepis v. Lepis, 83 N.J. 139, 157-59 (1980), further found no change in circumstances since Judge Claypoole's May 9, 2008 order that would warrant the relief that plaintiff sought. A further motion for reconsideration was denied.
On appeal, defendant once more appears to mischaracterize his determination to accept a lump-sum settlement of Unum's obligation to provide disability benefits and then to return to work. Defendant states that he was forced to accept the settlement because his mental health had improved to the point at which he was no longer disabled. However, defendant gives no credible explanation why Unum would choose to offer him any money, let alone a significant sum, once the disability that triggered policy benefits ceased or why it required defendant to surrender his policy in the circumstances that defendant alleges. We thus conclude, as have all other judges considering defendant's claims, that defendant voluntarily forfeited future coverage in exchange for receipt of a lump sum payment discounted to present value. Therefore, we are satisfied that the circumstances the defendant presently faces are of his own making and that he voluntarily forfeited the income upon which his child support obligation was premised. Such a factual scenario does not satisfy the change of circumstances requirement of Lepis. Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992); Lynn v. Lynn, 165 N.J. Super. 328, 398 (App. Div.), certif. denied, 81 N.J. 52 (1979); Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982). Accordingly, we find that defendant's motions were properly denied.
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