July 21, 2011
RONALDO L. VUKOVICH, PLAINTIFF-APPELLANT,
STEPHANIE R. VUKOVICH, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-164-07C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 3, 2011
Before Judges Grall and C.L. Miniman.
Plaintiff Ronaldo L. Vukovich appeals from final orders entered on September 14, 2009, denying in part his post-judgment motion for various forms of relief and granting in part defendant Stephanie R. Vukovich's cross-motion in aid of litigant's rights and for other relief.
The parties were married on June 30, 2001, and twin daughters were born thereafter. A final judgment of divorce (JOD) was entered on September 18, 2006, which incorporated an inter-spousal agreement dated June 27, 2006. Pursuant to that agreement, defendant had sole custody of the children and plaintiff was "entitled to fair and reasonable time sharing with the [c]hildren." The agreement provided for child support in the amount of $650 per week commencing on November 1, 2006. Neither party had a right to apply for modification thereof until January 1, 2010, at which time child support would "be subject to modification and paid in accordance with the prevailing law of the State of New Jersey." Failing such an application, support would continue at $650 per week plus any cost-of-living increases imposed at any time by the Probation Department.
Paragraph five of the agreement specifically described the basis for a modification to child support:
Husband is the sole beneficiary of a trust established September 7, 1999 entitled "Ronaldo Vukovich Trust". As of April 30, 2003 the trust res consisting of Class B Non-Voting Common Stock of Wellsprings [sic] Pharmaceutical Company was redeemed and the trust was terminated effective as of May 1, 2003. Under the terms of redemption Wellsprings [sic] Pharmaceutical Corp. made and executed a Subordinated Promissory Note dated May 1, 2003 that provides for the payment of $1,950,000.00, with simple interest, to the trust in quarter annual installments of $62,273.00 the first installment being due on July 31, 2003. The last installment is to be made on January 31, 2013. Under the terms of the trust [plaintiff], as the sole beneficiary, is entitled to each of the quarterly installment payments made under and pursuant to the Subordinated Promissory Note.
During the marriage [plaintiff] was employed for a period of time in the Sales Department of Olsten Staffing Services. In early 2005, [plaintiff] voluntarily terminated his employment and pursued one or more interim jobs of a lesser nature. There is no health or other reason that would prevent [plaintiff] from seeking quality, gainful employment on a full-time basis. [Plaintiff] is presently employed by Westwood Computer and earns $36,000.00 per year.
[Defendant] is currently on an extended maternity leaving having [recently] given birth to twins . . . . [Defendant] is committed to return to her full-time teaching position in September 2006 at which time she expects to have annual earnings of approximately $45,000.00. Absent an unforeseen event which would deny [defendant] the right to return to work, [defendant] agrees that she will return to her full-time teaching position in September 2006.
The agreement further provided that plaintiff would be responsible for all work-related child-care expenses and would maintain a $1 million term life insurance policy for the benefit of the children until his support obligations ended. Plaintiff agreed that defendant could claim the children as exemptions on her income tax returns and "waive[d] the right to request informally or upon formal application to a [c]court on [n]notice of [m]otion that he be allowed to claim one or both of the [c]hildren as exemptions on his income tax returns."
Plaintiff filed a notice of motion on July 20, 2009, with supporting certification*fn1 seeking a decrease in his child-support obligation to $263 per week, reduction in his life-insurance obligation to $500,000, allocation of the entire pre-school tuition to defendant, award of a tax exemption for one child to him, establishment of parenting time, and an award of counsel fees and costs. Apparently submitted in support of his motion was a February 5, 2009, letter to him from Robert A. Vukovich, plaintiff's uncle and the President and CEO of WellSpring Pharmaceutical Corp., transmitting a revised promissory note that reduced the quarterly payments of $62,273 to monthly payments of $5000, reduced the interest rate from 4.58% to 2.03%, and extended the maturity date to April 30, 2018. The letter sought agreement to the adjusted terms, and plaintiff affixed his consent to the revised promissory note. Plaintiff's earnings statement for the two-week period ending February 13, 2010, indicated gross pay of $1,346.16 and net pay after deduction of state and federal taxes, dental and medical insurance, and a $629.92 wage garnishment of $347.75. Plaintiff also submitted a Child Support Guidelines Sole Parenting Worksheet suggesting that his child support obligation should be $263 per week.
Defendant filed a notice of cross-motion on August 28, 2009, and two certifications*fn2 opposing plaintiff's motion in its entirety and seeking an order finding plaintiff in violation of litigant's rights, directing him to pay child support in the full amount due, ordering him to pay all child-support arrears, requiring him to pay the pre-school tuition and after-school expenses, scheduling parenting time, and for other relief.
A subsequent letter from the President of WellSpring dated August 28, 2009, addressed to plaintiff was apparently submitted in response to the cross-motion. It clarified that the revisions to the promissory note were part of the renegotiation of WellSpring's obligations to its creditors, "including individuals and financial institutions," as a result "of the global economic meltdown and its impact on WellSpring, including its cash flow position." He further noted that "had [plaintiff] not agreed to such changes, it was clear that [plaintiff] would have incurred intangible costs, including harm to familial relationships."
The motions were argued by counsel for both parties on Friday, September 11, 2009, and the judge reserved decision. On September 14, 2009, the judge entered two orders. The first order denied plaintiff's motion in all respects for "reasons on record 9-14-09." The second order granted defendant's cross-motion in all respects save four forms of relief not at issue in this appeal, again for "reasons on record 9-14-09."
On that date, the judge read paragraph five of the agreement into the record and also read certain paragraphs from plaintiff's certification explaining that his agreement to the child-support provisions of the agreement were predicated on his receipt of the quarterly payments on the promissory note, that economic circumstances had led to its revision, and a great downward modification in his income. The judge then posited that he had to decide whether the change in income "was an involuntary act visited upon the plaintiff or whether it was a voluntary act." He then analyzed the issue as follows:
And during the oral argument, and also consistent with the submissions which I have received, there does appear, keeping in mind that the grantor, the trustee, and the grantee are all related to one another by blood, that the Court could not conclude on this record, the record meaning that Mr. Ronaldo Vukovich did have the opportunity to contest this decision, that this would be looked upon as an involuntary event in his life. Rather I would look on it as a [sic] voluntary. And because it is voluntary, there clearly had to be an obligation.
And I would find that there is an obligation, was an obligation on Mr. Vukovich to not only vigorously attempt to maintain the original structure of this agreement, but also at the earliest possible time to discuss it with the defendant, his former wife, to see if some type of an accord could be reached. And by the time the case comes to me as a notice of motion, both to modify on the one hand and to enforce on the other, the conclusion I have come to is that there was no, or there has been no accord arrived at between the former husband and the former wife.
My view is that the affirmative prayers for relief which Mr. Vukovich is asking for, which would be a decrease in his support obligation, a lowering which is found in the property settlement agreement, a reduction in his life insurance obligation which is also a provision found in the property settlement agreement, and addressing the issue of the cost of sending the twins to Saint Dennis School, are not subject to modification. Again, based upon this record.
And the reason I say this is because this is an agreement that had built into it, the obligations on the one hand and the expectations -- obligations on behalf of Mr. Vukovich and the expectation on behalf of Stephanie Vukovich and the two children, of the content of that initial agreement which in part talks about a very, very substantial amount of money. And we all plan our lives, make decisions based upon reasonable expectations.
Here, although there may have been some reason behind WellSpring's decision to have to modify, I'm satisfied that there was a greater responsibility on behalf of Mr. Vukovich to argue forcefully that that ought not occur. Accordingly, his prayer for relief which seeks a modification, I'm satisfied should be denied. And I deny it because believing that it is voluntary and not involuntary, he has not made out a prima facie case.
In light of this conclusion, the judge found plaintiff in violation of litigant's rights and granted the monetary relief sought by defendant in her cross-motion.
As to parenting time, the judge found that the more reasonable proposal was that advanced by defendant and found that "it is in the best interest of the twins that that parenting schedule be implemented for the plaintiff." Accordingly, he ordered that plaintiff was to have parenting time every third weekend from 6:00 p.m. on Friday to 5:00 p.m. on Sunday with alternating holidays and the children's birthdays if during a weekday.*fn3 Plaintiff had relocated from New Jersey to New York and also sought an order providing that he was to pick up the children at defendant's home at the beginning of his parenting time and that she was to pick up the children at his home at the end of his parenting time. The judge rejected this proposal and required a midway pickup and drop-off location, as defendant proposed. This appeal followed.
Plaintiff seeks our review of the judge's decision to deny his application to modify his support obligation, deny him one tax exemption, and provide him with parenting time for only two days out of every three weeks. He cites no case law or statutes in support of his appeal. Defendant also has not done so.
Family Part judges have the equitable authority after judgment to modify child support obligations. N.J.S.A. 2A:34-23 recognizes this authority:
Pending any matrimonial action . . . brought in this State or elsewhere, or after judgment of divorce . . . , the court may make such order . . . as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . . . Orders so made may be revised and altered by the court from time to time as circumstances may require.
Child support obligations "are always subject to review and modification on a showing of changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (internal quotation marks omitted). This is so even where such obligations are established in consensual agreements, because they should be enforced "only so long as they remain fair and equitable." Id. at 149 (holding that "[t]he equitable authority of a court to modify support obligations in response to changed circumstances, regardless of their source, cannot be restricted").
Nonetheless, applications for a modification of support are governed by Rule 5:5-4(a). That rule requires that "the pleading filed in support of the motion shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement." Ibid. The opposing party is subject to the same obligation with respect to prior statements and shall file a current statement if the judge determines that a prima facie showing of a substantial change of circumstances has been made. Ibid. Where this requirement has not been satisfied by the movant, relief may be denied. Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010).
In prosecuting an appeal, the appellant must prepare an appendix that contains, among other things, the pleadings, the order from which appeal is taken, and "such other parts of the record . . . as are essential to the proper consideration of the issues." R. 2:6-1(a)(1). Where filed documents in the action are not included in the appendix, we may decline to address issues requiring review of those parts of the trial record missing from the appendix. Community Hosp. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005); Society Hill Condo. Ass'n v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). This is so because the failure to include such items impedes appellate review. Johnson v. Schragger & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001).
Here, we do not have the benefit of the case information statements nor do we have the benefit of the supporting and opposing certifications submitted by the parties on the motion and cross-motion. Furthermore, it seems that both parties have submitted facts to us in their briefs and appendices that were not part of the record before the Family Part judge when he decided these motions. Without the case information statements and the certifications, and given the confusion as to what was actually contained in the record, we cannot review the decision to deny plaintiff's application to modify his support obligation and provide him with one tax exemption. Furthermore, without even knowing what parenting time plaintiff proposed and the facts supporting that schedule as well as the facts supporting the schedule proposed by defendant, we cannot review the parenting time provided to plaintiff. We are, therefore, constrained to affirm the Family Part judge's decision substantially for the reasons expressed by him in his oral opinion delivered on September 14, 2009. R. 2:11-3(e)(1)(E).