On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-348-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and LeWinn.
In this post-judgment matrimonial matter, defendant appeals from the February 5, 2010 order of the Family Part denying his motion for a downward modification of his child support obligation based upon a claimed change of circumstances. We reverse and remand for further proceedings.
The parties were married in 1997 and divorced in 2004; they have two children. During the marriage, defendant worked as an insurance adjuster earning about $40,000 annually. In 2000, defendant was arrested for insurance fraud and sentenced to prison. He was incarcerated from August 2003 to February 2004. He was no longer able to work in the insurance industry as a result.
The parties' judgment of divorce states that they appeared before the judge on April 12, 2004. That judgment was filed on May 18, 2004, and incorporated the parties' property settlement agreement (PSA), which they had executed on May 12, 2004.
Despite the fact that defendant was no longer employed as an insurance adjuster, he signed the PSA aware that it stated that both parties were "working and . . . self-sufficient." Defendant also agreed to pay child support of $413 per week. At that time, defendant's share of the proceeds of sale of the marital residence was being held in escrow by plaintiff's attorney; the PSA provided that defendant would pay $165 per week and the balance of $248 would be paid from the escrow until those funds were depleted, after which defendant would pay the full weekly amount of $413. Defendant's child support payments were in arrears by 2008 and plaintiff filed a motion to collect those arrears. On September 11, 2008, the parties entered into a consent order in which plaintiff agreed to withdraw her motion because defendant had "paid in full all arrears as set forth" in that motion. The consent order further provided: "In the event defendant is more than one . . . week late on his future child support payment obligations, he will be put on a two[-]week bench warrant status. Should defendant promptly make payment of any and all outstanding child support arrears during the two[-]week period, such status shall be immediately lifted."
On July 17, 2009, pursuant to another motion by plaintiff to collect child support arrears, a judge entered an order setting defendant's arrears at $9,067 and ordering him to pay that amount by August 6, 2009, or a bench warrant would issue. Defendant, representing himself, apparently filed a motion with respect to child support on July 13, 2009; however, the judge dismissed that motion on July 17, 2009.
On December 14, 2009, plaintiff filed another motion seeking, among other things, enforcement of child support arrears. Defendant filed a cross-motion seeking to reduce his child support obligation to $64 per week.
In support of his cross-motion defendant certified that when he was before the judge at the divorce hearing in 2004, it was the judge's "position that [defendant] was capable of earning almost $175,000 per year with [his] [e]conomics
[d]egree, even considering [his] arrest record and inability to work in the insurance industry." Defendant was unable to produce the Child Support Guidelines Worksheet from the time of the divorce, but submitted a recreated version of the worksheet showing a weekly child support obligation of $413 and listing his weekly gross taxable income as $3365.
Defendant further certified that "it was impossible for [him] to obtain a job in the insurance industry given [his] arrest[,]" and that his "economics degree was virtually useless." He attached tax returns showing gross income of $24,305 in 2004, $36,784 in 2005, $13,355 in 2006, and $35,565 in 2007, from various jobs at a restaurant and with a painting company.
Defendant has a "background as a chef and restaurant manager," and he "researched jobs in ...