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Lisa Antonucci v. William M. Antonucci

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 3, 2011

LISA ANTONUCCI, PLAINTIFF-RESPONDENT,
v.
WILLIAM M. ANTONUCCI, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-11820-90.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2011

Before Judges Yannotti and Skillman.

Defendant William M. Antonucci, Jr., appeals from an order entered by the Family Part on January 27, 2010, denying without prejudice his motion to terminate or reduce his child support obligation, and granting a cross-motion by plaintiff Lisa Antonucci*fn1 to enforce litigant's rights. We affirm.

This appeal arises from the following facts. The parties were married on March 19, 1982. Three children were born of the marriage -- a girl named Stephanie and twin boys named Zachary and Spencer. The marriage was dissolved by a final judgment of divorce dated November 9, 1990, which provided, among other things, that the parties would share joint legal custody of the children. The judgment additionally provided that defendant would pay plaintiff child support for the children. A post-judgment order entered on August 20, 1993, required defendant to pay $150 per week in child support.

In September 2005, defendant filed a motion seeking an order declaring Stephanie emancipated and reducing his child support from $150 to $100 per week. The motion was supported by a case information statement in which defendant provided certain financial information, including his then-current income. In a certification filed in support of his motion, defendant stated that he and plaintiff had very little communication and he did not have any information concerning her income. Defendant also stated that plaintiff was employed as a "Human Resources Administrator," and according to statistics of the United States Bureau of Labor, persons holding similar jobs earned $26.35 per hour in the New York metropolitan area.

The trial court entered an order dated November 22, 2005, which stated that Stephanie was deemed emancipated and ordered defendant to pay child support in the amount of $189 per week, an amount determined pursuant to the Child Support Guidelines. Defendant appealed from the court's order. While the appeal was pending, defendant filed another motion in the trial court seeking a declaration that Zachary and Spencer were emancipated because they were eighteen years of age and would graduate from high school in June 2006.

The trial court entered an order dated July 17, 2006, denying the motion to emancipate Zachary and Spencer. The court ordered defendant to continue to pay child support in the amount of $189 per week, as provided in the court's November 22, 2005, order. In a statement of reasons appended to the order, the court noted that the twins would be attending college beginning in the Fall of 2006. The court also noted that plaintiff had not sought to compel plaintiff to bear a part of Zachary's and Spencer's college expenses. The court pointed out that, because the twins were not emancipated, they were entitled to continuing support from their father.

Thereafter, in an unpublished opinion, we reversed the provision of the trial court's November 22, 2005, order increasing defendant's child support obligation from $150 to $189. Piszel v. Antonucci, No. A-2150-05 (App. Div. Aug. 1, 2006) (slip op. at 5). In our opinion, we stated that the trial court erred by "failing to require plaintiff to submit a current case information statement reflecting her actual current income and failing to redetermine defendant's current child support obligation in light of that actual income figure." Id. at 4-5. We remanded the matter to the trial court for further proceedings. Id. at 5.

Defendant appealed from the trial court's July 17, 2006, order. In an unpublished opinion, we affirmed the court's order substantially for the reasons stated by the court in the statement attached to the order. Piszel v. Antonucci, No. A-6056-05 (Mar. 15, 2007) (slip op. at 2).

It appears that sometime in 2007, defendant filed another motion seeking an order declaring that Zachary was emancipated. Plaintiff opposed the motion and cross-moved to continue defendant's $189 per week child support obligation in lieu of any additional college expense contribution. The court filed an order dated April 30, 2007, denying defendant's motion and granting plaintiff's cross-motion. In a statement of reasons appended to the April 30, 2007, order, the court noted that it had entered an order on July 17, 2006, denying defendant's motion to emancipate the twins and ordering the continuation of child support in the amount of $189 per week in child support.

The court observed that plaintiff had not sought any additional contribution by defendant towards the twins' college education other than the $189 per week in child support. The court also noted that defendant had appealed the July 17, 2006, order and this court had affirmed the order. Defendant did not appeal from the trial court's April 30, 2007, order.

In January 2009, defendant filed a motion seeking to terminate or reduce his child support obligation due to changed circumstances. In a certification submitted in support of that motion, defendant stated that Zachary and Spencer were adults, were gainfully employed, owned their own vehicles, and were capable of contributing to their own support. Defendant also stated that he had been employed as an automotive technical instructor but was unemployed as of December 31, 2008, and had no "income of any sort." He said that his search for a new job had been "fruitless." The court entered an order dated February 27, 2009, denying defendant's motion.

On March 27, 2009, defendant filed another motion seeking to terminate or reduce his child support obligation and to instruct the Probation Department to eliminate all arrears that had accumulated as a result of the "erroneously calculated child support obligation." In his supporting certification, defendant noted that our August 1, 2006, opinion had vacated the increase of his child support obligation from $150 to $189 and remanded the matter to the trial court for further proceedings. Defendant stated that the trial court had never reviewed the increase in child support and, therefore, there could not be any arrears resulting from his failure to pay that increase. In addition, defendant provided further facts concerning his efforts to obtain employment, which he again said had been "fruitless."

Plaintiff opposed defendant's motion and filed a cross-motion to enforce litigant's rights. The court entered an order dated June 19, 2009, denying the motions.

In November 2009, defendant filed the motion that resulted in the order at issue in this appeal. He again sought an order terminating or reducing his child support obligation based on changed circumstances and eliminating all arrears resulting from what he said was the erroneously-calculated child support obligation. Plaintiff opposed the motion and filed a cross-motion to enforce litigant's rights.

The trial court entered an order dated January 27, 2010, denying defendant's motion and granting plaintiff's cross-motion. The court ordered the Probation Department to continue to assist plaintiff in her efforts to recover defendant's child support arrears.

In a statement of reasons appended to the order, the trial court noted that, while this court in its August 1, 2006, opinion had reversed the part of the November 22, 2005, order increasing defendant's child support obligation, the trial court had also entered an order dated July 17, 2006, which denied defendant's motion to emancipate the twins and directed defendant to continue to pay child support in the amount of $189 per week.

The court observed that, when it entered the July 17, 2006, order requiring defendant to continue paying child support in the amount of $189 per week, it had "rejected the proposition that the amount of the support was inappropriate based in part on the fact that [p]laintiff had decided to forego efforts to recover" a share of the twins' college expenses from defendant. The trial court pointed out that this court had affirmed its July 17, 2006, order.

The trial court also found no basis to terminate defendant's child support obligation on the ground that the twins were no longer attending college and were allegedly working full time. The court noted that plaintiff had provided the court with proof that the twins were continuing to attend college on a full-time basis. In addition, the court found no basis to terminate defendant's child support obligation because defendant was unemployed. The court stated that defendant had failed to show that his unemployment, while unfortunate, was "anything other than a temporary setback."

On appeal, defendant argues that the trial court erred by failing to recognize and comply with our August 1, 2006, opinion vacating the increase of child support from $150 to $189 per week. He contends that the trial court's July 17, 2006, order requiring continued payment of child support in the amount of $189 per week was based on the November 22, 2005, order, which had been reversed. Defendant also argues that the trial court erred by failing to terminate his child support obligation on the basis of his unemployment. He contends that fifteen months of unemployment cannot be viewed as a "temporary setback."

We have carefully reviewed the record before us and conclude that defendant's arguments are without merit. We accordingly affirm the trial court's order of January 27, 2010, substantially for the reasons stated by the trial court. We add the following comments.

Defendant argues that the trial court erred by refusing to reduce his child support obligation in accordance with our August 1, 2006, opinion. However, as we have explained, although our August 1, 2006, opinion vacated the increase in child support as provided in the November 22, 2005, order, we subsequently affirmed the trial court's July 17, 2006, order, which required defendant to pay child support in the amount of $189 per week. We are satisfied that the trial court correctly found that defendant was bound by the July 17, 2006, order, which required defendant to pay child support in the amount of $189 per week.

We note that the trial court's April 30, 2007, order also required defendant to continue to pay child support in the amount of $189 per week. Moreover, when the trial court entered that order, the court stated that plaintiff sought continuation of those payments in lieu of seeking any additional contribution from defendant towards the cost of sending the twins to college. Defendant never appealed from the April 30, 2007, order. Defendant is bound by that order as well.

Defendant additionally argues that the trial court erred by finding that he failed to present a prima facie case of changed circumstances which warranted plenary review of his application to terminate child support. According to defendant, he became unemployed as of December 31, 2008. Defendant filed several motions to terminate or reduce his child support obligation based on changed circumstances. The motion that resulted in the order at issue on this appeal was filed in November 2009, when defendant had been unemployed for less than a year.

As the trial court recognized, there is no bright-line rule establishing a period of time that must pass before a change is deemed permanent for purposes of reducing child support or alimony. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). We are satisfied that the trial court did not err by finding that, as of January 27, 2010, defendant had not been unemployed long enough to consider the change in his employment status permanent.

Affirmed.


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