March 28, 2011
RAISSA WILLIAMS, PLAINTIFF-RESPONDENT,
CHARLES C. ARTIS, III, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-0265-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2011
Before Judges Cuff and Sapp-Peterson.
In this post-judgment motion, defendant appeals from the Family Part order denying his motion for a modification of his child support obligation. We reverse and remand for further proceedings.
The parties, who are not married, are the biological parents of two children born during the course of their relationship. They previously resided in Virginia until plaintiff and the children returned to New Jersey. In July 2003, plaintiff initiated a non-dissolution action seeking a determination of paternity, child support, and a temporary custody hearing related to the two minor children. Shortly thereafter, in an undated order, the court entered an order reflecting that defendant admitted paternity of the two children, establishing a visitation schedule for defendant, and directing defendant to pay $198 in weekly child support commencing September 15. On September 29, 2006, the parties entered into a consent order in which defendant agreed to pay $500 in weekly child support, representing an increase in child support to $213 per week as well as an additional $287 per week towards arrears.
On October 14, 2009, plaintiff filed an enforcement motion seeking an order directing defendant to make a lump sum payment of child support arrears, which plaintiff claimed had reached, at that point, $9334. In addition, plaintiff sought an order authorizing the issuance of a warrant in the event defendant missed two child support payments. Defendant cross-moved for an order reducing his child support obligation based upon a reduction in his income from $60,234 in 2002 to $37,520 and the birth of his new child for whom he was the parent of primary residency.
The court denied defendant's cross-motion. In its findings, the court was satisfied, based solely upon defendant's tax return, that defendant "probably is not earning as much as he did back in 2006 when the consent order was entered[,]" but that if there were to be a modification, it would be "a rather minimal modification." The court also acknowledged that plaintiff submitted no Case Information Statement (CIS). During oral argument on the motion, however, plaintiff indicated that she was being supported by her mother and receiving a Veteran's pension of approximately $611 per month. In addition, the judge noted that plaintiff had been unemployed for seven years and that her unemployed status was, according to plaintiff, because she had been a full-time college student, for the past five years, at Hudson County Community College. The court concluded that defendant failed to "allege or raise any significant change of circumstance in his reduction of income that would result in a modification [or] reduction of child support." The court also found that based upon defendant's weekly income of approximately $600, he had no current ability to make a lump sum payment of arrears, but did impose the "two missed payments" provision defendant sought as a basis for the issuance of an arrest warrant. The court continued all prior orders.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A REDUCTION OF CHILD SUPPORT AS DEFENDANT MADE A PRIMA FACIE SHOWING OF "CHANGED CIRCUMSTANCES" THEREBY WARRANTING, NOT ONLY THE EXCHANGE OF FULL FINANCIAL DISCOVERY, BUT ALSO, A PLENARY HEARING.
THE TRIAL COURT ERRED IN FAILING TO FIND THAT PLAINTIFF WAS, WITHOUT JUST CAUSE, VOLUNTARILY UNEMPLOYED[,] WHICH REQUISITE CONCLUSION WOULD HAVE PERMITTED THE COURT TO PROPERLY IMPUTE INCOME TO HER.
THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING WITH RESPECT TO THE DISPUTED ISSUE OF VISITATION.
The scope of our review is limited. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992).
Our review of the record and consideration of defendant's written argument persuades us that the motion judge mistakenly exercised his discretion in denying defendant's application without first ordering the exchange of discovery. Although defendant failed to file a CIS along with his motion as he was required to do pursuant to Rule 5:5-4, the motion judge addressed the merits of the motion without any verifiable financial information from either party, other than defendant's tax return. Having accepted, based upon defendant's tax return, that defendant "probably is not earning as much as he did back in 2006 when the consent order was entered," and given the court's questioning as to how plaintiff "can be unemployed for six years when you're going to school for five years[,]" questioning the length of her unemployed status, as well as how she was juggling her finances, the exchange of financial information should have been ordered.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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