February 9, 2012
KELLY J. FRANCHETTI, PLAINTIFF-RESPONDENT,
JOSEPH A. FRANCHETTI, SR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-464-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 10, 2011
Before Judges Cuff, Waugh and St. John.
Defendant Joseph A. Franchetti, Sr. appeals from two orders of the Family Part: (1) the September 29, 2009 order denying his Rule 4:50-1 motion to set aside the financial terms of the final judgment of divorce (JOD) between the parties and for a new trial; and (2) the June 14, 2010 order denying his motion to reduce his support obligations and for other relief. For the reasons explained below, we affirm.
The following summarizes the facts and procedural history surrounding the entry of the JOD and the post-judgment motions related to the parties' bitter and protracted dispute over alimony and child custody.
The parties were married on October 29, 1994. Two children were born of the marriage, a son born in 1995, and a daughter born in 1999. On January 8, 2007, plaintiff Kelly Franchetti filed a complaint for divorce. On August 22, 2007, the parties appeared before a matrimonial early settlement, but the parties could not reach a settlement panel.
The trial, which was originally scheduled for September 6, 2007, was subsequently rescheduled for October 2, 2007. A notice of scheduled appearance for trial, dated August 23, 2007, was sent to the parties, notifying them that trial was scheduled before Judge John Tomasello on October 2, 2007 at 9:00 a.m. Defendant, who was appearing pro se, acknowledges that plaintiff's attorney called him and left a message confirming the new trial date.
Defendant failed to appear for trial on October 2. The judge took testimony from plaintiff and entered an order awarding her a divorce, alimony of $1800 per week, child support of $443 per week, and sole custody of the parties' two children. On October 15, the judge entered an amended JOD, nunc pro tunc to October 2. The amended JOD contained the same alimony, child support, and custody arrangement.
On October 16, 2007, defendant filed a Rule 4:50-1*fn1 motion to reopen the JOD, arguing that he failed to appear at the trial because he "made an incorrect diary entry for the time of the court hearing," and believed the hearing was scheduled for 1:30 p.m. However, defendant subsequently retained counsel, who withdrew the Rule 4:50-1 motion, and moved for parenting time and joint custody. On November 16, 2007, the judge entered an order confirming defendant's withdrawal of his motion to reopen the JOD, but granted, in part, defendant's motion for parenting time with his children.
In 2008, defendant filed a second motion to reopen the JOD pursuant to Rule 4:50-1.*fn2 Defendant sought to "set aside the financial terms of the [JOD]" so that a new trial could be granted, during which he would submit evidence and testimony in support of his position that the financial terms of the JOD were excessive. Defendant maintained then, as he does now, that the judge who heard the divorce "relied solely on the testimony and inaccurate/incomplete information provided by the plaintiff." Defendant contended that the income of $5288 per week attributed to him was "far in excess of what  [he] made." He argued that, had he been present at the trial, he could have offered "material support, such as [his] pay stubs, or tax information[,]" that the amount of alimony and child custody awarded would have been lower.
On September 19, 2008, Judge Tomasello denied defendant's motion without prejudice, finding that defendant had not provided sufficient evidence to support his assertions. The judge relaxed the terms of the Final Restraining Order previously obtained by plaintiff, allowing the parties to communicate with each other about the children by e-mail and text messaging. However, the judge denied defendant's request for joint legal custody. Finally, the judge scheduled an October 23, 2008 "ability to pay" hearing with respect to defendant's arrearages.*fn3
On April 8, 2009, defendant filed another Rule 4:50-1 motion, seeking essentially the same financial relief. On September 21 and 28, 2009, the motion judge held hearings and heard arguments on defendant's motion. On September 28, 2009, Judge Richard S. Hoffman delivered an oral decision denying defendant's motion. He advised defendant that "you cannot file a Motion before one Judge, then when that Judge is reassigned bring essentially the same Motion before another Judge[.]" The motion judge then stated:
Rule 4:50-1(a) through (c), requires that the Motion be filed within one year,*fn4 which this was not. So paragraph (f) does not have a time limitation, a precise time limitation and that is, any other reason justifying relief from the operation of the Judgment or Order. That has been basically to interpret a reasonable time and what constitutes a reasonable time is dependent upon the totality of the circumstances . . . . I was just looking at Judge Tomasello's findings relative to the hearing on 10/27, which I find those findings would be relevant to the totality of the circumstances analysis I'm going to be required [to make].
The judge also noted that "this is the third such Motion filed in this matter" (the first having been withdrawn by defendant's counsel). He determined that defendant's only grounds for relief would be under subsection (f) of Rule 4:50-1, which requires a review of the totality of the circumstances.
Judge Hoffman reviewed the evidence relied on by Judge Tomasello at the divorce trial, such as "a five year average of total deposits into Mr. Franchetti's accounts,  as well as the first seven months of '07, into two separate accounts," and found nothing "unreasonable about the presentation of this information" or that there was "misrepresentation" or that "these were anything other than gross income or deposit figures." Judge Hoffman determined that the "proceedings . . . from October '08, clearly substantiated [and] documented an income capacity on the part of the [d]efendant of approximately $187,000 in gross income a year[,]" which supported Judge Tomasello's calculated alimony and child support award.
On November 4, 2009, the judge held a second "ability to pay" hearing on the issue of past arrearages, resulting in an order requiring defendant to pay plaintiff at least $500 per week. On November 12, 2009, defendant filed a motion for leave to file an interlocutory appeal of that order, which we denied.
In March 2010, defendant filed a motion to reduce his alimony and child support obligations on the basis of changed circumstances and for other relief. Plaintiff filed a cross-motion for enforcement of litigant's rights. The motion judge heard arguments from the parties on May 3, 2010, and denied defendant's motion. He granted plaintiff's cross-motion in part.
Judge Hoffman determined that defendant had not provided sufficient evidence to support his assertion that there has been a substantial change in circumstances. Defendant argued that he was employed as a "W-2 employee at a significantly reduced income," but provided no pay stubs. He explained that he was paid in cash. He also failed to provide his personal income tax returns for any year subsequent to the divorce. The judge observed that, "given the past findings of Judge Tomasello of the [d]efendant having been found to be incredible . . . [and] evasive," there was no basis to alter defendant's support obligations. The judge further found that defendant did not provide the court with sufficient evidence that there has been a substantial change in circumstances.
On June 14, 2010, the judge heard plaintiff's motion for counsel fees with regard to defendant's prior motions to reduce his alimony and child support payments. The judge granted the motion for fees and also supplemented his earlier findings with regard to defendant's request for a reduction in his payments to plaintiff. He found that defendant had a very considerable income, in the six figure range annually, prior to his divorce. He determined that, if defendant had a reduction in income, it was a result of "decisions he has made not to work to the previous level" and "choices he has made," rather than factors beyond defendant's control. He also found, with regard to reasonableness and good faith of the positions advanced by the parties, since I've been involved in this case, I've consistently found the Plaintiff's positions to be reasonable and advanced in good faith and the Defendant's position to be basically unreasonably and demonstrating a lack of good faith.
The judge denied defendant's request to reduce his alimony and child support.
Defendant appeals from the September 28, 2009 order denying his Rule 4:50-1 motion and the June 14, 2010 order denying his motion for a reduction in his support obligations due to changed circumstances. With respect to the former, defendant's appeal is out of time. The September 28, 2009 order was a final order. An appeal from a final order must be filed within forty-five days of entry of the order. R. 2:4-1(a). The notice of appeal filed on July 29, 2010, is untimely as to this order.
Therefore, we decline to review this order.
With respect to the June 14, 2010 order, defendant argues that, since the date of the divorce, he has fallen on hard times financially and is not employed steadily, both of which prevent him from being able to make his scheduled alimony and child support payments. He has been jailed on more than one occasion for non-payment of child support, and has been significantly in arrears throughout the course of these proceedings. We therefore address defendant's belief that he is entitled to a reduction in alimony and child support payments based on changed circumstances.
Defendant has the burden of showing such "changed circumstances" as would warrant relief from the support or maintenance provisions involved. Martindell v. Martindell, 21 N.J. 341, 353 (1956). A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status. Lepis v. Lepis, 83 N.J. 139, 157 (1980). "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. This requires full disclosure of the [obligor] spouse's financial status, including tax returns." Ibid. Furthermore, "[c]courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268 (1950)). Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989) (quotation and quotation marks omitted). "[A] court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller v. Miller, 160 N.J. 408, 420 (1999).
Defendant has not met his burden by providing any credible evidence to the court that would support his application for changed circumstances. Aside from defendant's contention that his income is significantly reduced, he has failed to provide pay stubs or other documentation substantiating his financial situation. Defendant has simply failed to provide documentary evidence in support of his burden to show that his financial circumstances have indeed changed, thus warranting modification. Accordingly, we discern nothing in the record to disturb the judge's decision to deny defendant's request for a reduction of his financial obligations.
Finally, defendant argues that the motion judge erred by not awarding joint custody of the children. To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances that affects the welfare of the children such that their best interests would be better served by modifying custody. Mimkon v. Ford, 66 N.J. 426, 438 (1975). See also Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).
Judge Tomasello awarded legal custody of the children to plaintiff based on an active restraining order plaintiff secured against defendant. Because of Family Part judges' special expertise in family matters, we do not second guess their findings and exercise of their sound discretion. Hand, supra, 391 N.J. Super. at 111. If the judge's factual findings are "supported by adequate, substantial, credible evidence" and the judge's conclusions are based on a proper understanding of the relevant law, we may not disturb the order. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Defendant contends that plaintiff has since used the restraining order as a sword to prevent defendant from regularly visiting with his children. Nevertheless, "[a] judgment, whether reached by consent or adjudication, embodies a best interests determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993).
In order to determine whether the circumstances have so changed since the original judgment as to warrant a modification, a court must have some knowledge or information as to the circumstances which existed on the date of the original judgment. This is for the twofold purpose of (1) acquainting the court with the facts which existed at the time that the original judgment was entered, so that he [or she] may ascertain what motivated the original judgment and determine whether there has been any change in circumstances, and (2) aiding the court in evaluating the bona fides of the person who seeks a modification upon the grounds of change in his status of fitness. Such evidence has a vital and essential bearing upon the welfare of the child. [Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981) (quoting Sheehan, supra, 51 N.J. Super. at 287-88).]
While we acknowledge that defendant has completed his required counseling and anger management programs, he has not met his burden of showing changed circumstances such that the children would be better served through joint legal custody. We have carefully considered the record and find no evidence that defendant presented the motion judge with any credible evidence supporting even a prima facie case of changed circumstances which would support a change in custody. We find no reason to question the motion judge's exercise of discretion.