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Anthony Scialabba v. Melissa Scialabba

July 8, 2011

ANTHONY SCIALABBA, PLAINTIFF-RESPONDENT,
v.
MELISSA SCIALABBA, N/K/A KURTZMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Docket No. FM-04-1651-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Carchman, Messano and St.John.

In this appeal, we review an order modifying the child support obligations of a parent based on substantial change of circumstances. Defendant Melissa Kurtzman appeals from an April 13, 2010 order of the Family Part modifying the parties' stipulations of settlement, which had been incorporated in the parties Judgment of Divorce (JOD). The order reduced the child support obligation of plaintiff Anthony Scialabba from $3000 per month to $750 per month. We conclude that: 1) plaintiff failed to establish that there was a substantial change of circumstances warranting relief; and 2) that even if he did, the judge failed to give sufficient weight to the existing settlement agreement between the parties in making her findings of fact and conclusions of law. Accordingly, we reverse.

These are the facts adduced from the motion papers and plenary hearing conducted in response to plaintiff's motion to modify child support.

Defendant and plaintiff were married on March 31, 1990 and lived in Voorhees. The parties had one child, who was born in 1994, and is now sixteen years old. On August 6, 2003, after a thirteen-year marriage, the parties divorced, and a JOD was entered, which incorporated "stipulations of settlement"*fn1 agreed to by the parties.

At the time of divorce, both parties were practicing attorneys; plaintiff had his own practice, and defendant was employed at a law firm in Philadelphia. Both plaintiff and defendant also have master's degrees in tax law. Specifically, defendant specializes in employee benefits law and was a partner at Wolf Block when the parties divorced. In 2003, she earned $163,000.

Plaintiff's practice focuses on the application of the Employee Retirement Income Security Act (ERISA). At the time of this application, he maintained his own firm, Scialabba and Associates, and owned a 100 percent interest in the practice. In addition to his law firm, plaintiff also held an eighty-two percent interest in Redwood Administrators, Inc. (Redwood), a third-party retirement plan administration company, which, in part, compiles demographic data about individuals using the plans. The two companies act as "one entity" and possess what plaintiff describes as a "symbiotic relationship" in that the firm develops its client base from Redwood's research, and Redwood survives through the law firm's financial support. In 2003, at the time of the divorce, his taxable income was $300,872. During this same period, plaintiff's net worth approximated $3.7 million.

The parties' son is a special needs child. He currently suffers from attention deficit problems and obsessive compulsive behavior. Consequently, he takes medication to control these medical issues, in addition to medication to monitor his weight.

He attends a special public school for his needs and treats with a psychiatrist and a psychologist.

The JOD equitably distributed the parties' property and defined their custody and child support obligations. With respect to the parties' property, the JOD enforced plaintiff's right to "retain his professional practice," equally divided the couple's various financial and retirement accounts and addressed the mortgage payments related to the parties' marital home in Voorhees. Although defendant remained in the marital home, the parties share joint custody of the child and maintain a visitation schedule that equitably divides their time with him. Although not set forth in the JOD, the parties shared parenting for approximately seven years.

The provision that prompted this appeal concerns child support. The JOD provides, in relevant part:

As [] for child support, and effective August 1, 2003, Plaintiff shall pay child support directly to Defendant at the rate of $3,000 per month. Said support shall be paid $1,500 as of the first day of each month, and $1,500 as of the 15th day of each month. Said support shall be paid directly by Plaintiff to Defendant. . . .

As security for child support, each party shall be obligated to maintain life insurance. Plaintiff shall continue to maintain a minimum of $1,000,000 upon his life, designating Defendant as trustee for the benefit of [the child]. Defendant shall similarly be obligated to maintain a life insurance having a minimum death benefit of $225,000 . . . .

In addition to child support, the JOD also provides for plaintiff's "parenting time" schedule as well as plaintiff's contribution to the child's summer camp tuition. In the JOD, both parties waived alimony and agreed to pay their own counsel fees. Plaintiff is obligated to maintain major medical coverage for the child and pay defendant a lump sum of $65,000 to satisfy the equitable distribution provisions.

Another provision reflects that a previous "[c]ounterclaim" by defendant, in which she had "s[ought] compensatory or punitive damages for personal injury allegedly incurred by [her] and caused by [p]laintiff[,]" had been "dismissed with prejudice." The JOD does not specify the nature of those claims.

The JOD does not contain any language addressing modification of any of its provisions nor does it describe how the parties arrived at the $3000 monthly child support figure. Both parties agree that the $3000 figure is "outside" of the Child Support Guidelines (the Guidelines). Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2429 (2011).

On March 24, 2004, just six months after the execution of the JOD, defendant moved, among other things, to enforce plaintiff's child support obligations because they had accrued $18,000 in arrears from September 2003. In a certification supporting her motion, defendant claimed that plaintiff had consistently "provid[ed] excuses as to why he c[ould not] pay" and had the "means [and] ability to pay" the $3000 a month given that his net worth had actually increased. According to ...


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