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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...