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Lisa J. Kennedy v. Paul N. Saxe

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 19, 2011

LISA J. KENNEDY, PLAINTIFF-RESPONDENT,
v.
PAUL N. SAXE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FD-19-263-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2011

Before Judges A.A. Rodriguez and LeWinn.

Defendant appeals from the October 8, 2010 order of the Family Part denying without prejudice his motion to reduce his child support obligation for the parties' two children.

In 2007, defendant's weekly child support obligation was set at $195; this was "predicated upon [both parties] . . . earning $40,000 a year." Defendant is self-employed as a commercial printer.

On August 16, 2010, defendant filed a motion to reduce his child support obligation based on a decrease in his earnings; he also sought counsel fees. Due to what he termed the "downturn in [his] business as a result of the recession . . . which has occurred over the past [two] years" as well as "this digital internet age," he asserted that his "business has suffered dramatically" and he has not been able to earn $40,000 "over the past couple of years." In addition, he noted that since the 2007 order was entered, the eldest child now attends college out-of-state and, therefore, does not live at home year-round.*fn1

Defendant further certified that he had sold numerous assets, including "a rowboat, gym equipment, woodshop machines and other furnishings and antiques" to pay his living expenses. Defendant appended a current Case Information Statement (CIS), which, he claimed, showed that his income "is less than [his] child support."

Defendant did not address his counsel fee request in his certification. At oral argument, he contended that he "has roughly [twenty-five] percent of the net disposable income and [plaintiff] has [seventy-five] percent. She is clearly the person in a better economic position between the parties . . . ." Plaintiff certified in opposition that, despite defendant's claim that he was in a "dying industry," she did an Internet search and found numerous employment opportunities available in the printing field; she attached nineteen examples, which, she asserted, was a "partial list" of what she found from just one search. Plaintiff also stated that she used to work at defendant's business and was aware that his accountant prepared annual profit-and-loss statements, which defendant had not appended to his motion.

In reply, defendant certified that he (1) tried "unsuccessfully, to merge with another company"; (2) looked for jobs "outside of [his] industry" from which he was "rejected"; and (3) called eleven of the entries on plaintiff's Internet list, none of which "were hiring nor do they see the need to hire in the future." He asserted that "staying in business and continuing to advertise hoping for new sales leads as well as jobs seems to be [his] best course of action." He claimed to have searched other websites on the Internet, but to no avail. He did not submit any documentation of these claims.

After hearing extensive oral argument, the judge denied defendant's motion, finding that he did not make a "sufficient demonstration . . . that there [has] been a substantial change in his income situation . . . ." In denying defendant's counsel fee request, the judge found that neither "party operated in bad faith," and no grounds for a counsel fee award existed as the judge was "granting some relief to both of the parties."

On appeal, defendant contends that: (1) he has shown a change in circumstances warranting modification of his child support; (2) the judge erred by failing to make findings of fact; (d) he demonstrated a change of circumstances "as a matter of law"; (4) a plenary hearing was required "if material disputes exist"; and (5) the judge erred in denying his counsel fee request.

Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied they are without merit. The judge properly denied defendant's child support modification without prejudice, in recognition of defendant's failure to meet his burden of proof to demonstrate changed circumstances warranting such relief.

Where, as here, a child support obligor seeks a downward modification of that obligation based on a claim of reduced earnings, that party has the burden to demonstrate that the change is permanent and involuntary. Lepis v. Lepis, 83 N.J. 139, 151, 157 (1980). Here, although defendant bemoans the downturn in his printing business, citing the "digital internet age" and the recession, he has made no documented effort to seek alternative income-producing employment. Indeed, defendant certified that he views his best course as "staying in business and continuing to advertise hoping for new sales leads as well as jobs . . . ." To the extent defendant asserted efforts to find other sources of employment, by searching the websites identified by plaintiff as well as others he discovered, he presented no proof of contact, response and/or rejection by any of those sources.

Defendant relies upon Dorfman v. Dorfman, 315 N.J. Super. 511 (App. Div. 1998), to support his position that a persistent reduction in income constitutes "changed circumstances" warranting relief. However, in Dorfman, we determined that the obligor, whose employment had been terminated, had made an adequate prima facie showing of changed circumstances warranting further proceedings because he had documented his efforts to find new employment, including "immediately send[ing] out resumes, followed through with telephone calls, and arrang[ing] for interviews." Id. at 517.

Defendant has made no such showing here. Tax returns alone are insufficient. While the returns report low earnings from defendant's business, they do not reflect the true profit and loss figures from that business. Plaintiff asserted that such figures were prepared annually. Defendant did not dispute this; however, neither did he provide those records.

Moreover, if it is defendant's choice to stay in his printing business rather than seek new employment, he must document the efforts he has made (and continues to make) to "advertise" and develop "new sales leads as well as jobs," as he certified that he "hop[ed]" to do. Otherwise, a judge may be justified in determining that defendant "by deliberate intent or disinclination to work, [seeks to] defeat or avoid his . . . obligation of support." Bonanno v. Bonanno, 4 N.J. 268, 275 (1950) (internal quotation omitted).

As noted, the judge denied defendant's motion without prejudice. Defendant may file a new motion with appropriate documentation of the matters discussed herein in order to establish changed circumstances warranting modification of his child support obligation.

Under the circumstances, we consider defendant's contention regarding counsel fees to lack "sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E).

Affirmed.


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