On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-150-07-C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Graves and Koblitz.
In this highly-litigated, post-judgment matrimonial matter, plaintiff Michael Geaney appeals the trial court's decisions of September 16, 2010, entered without an evidentiary hearing, denying his motion to emancipate his twenty-two-year-old son and to recalculate child support for the remaining child; denying his request for defendant Lillian Geaney to file an updated case information statement (CIS); and denying his request for a credit for overpayment of child support and for a reduction in alimony and counsel fees. Given the contested factual issues before the court, and after reviewing the record in light of the contentions advanced on appeal, we reverse and remand for a plenary hearing.
This matter has a complex procedural history. The parties were married on September 7, 1979 and have two sons, one born in 1988 and the other in 1991. The parties were divorced by final judgment dated July 28, 1999. The property settlement agreement (PSA) incorporated into the final judgment of divorce provided that: (1) plaintiff was to pay permanent alimony of $575 per week; (2) plaintiff was to pay child support in the amount of $266 per week; (3) emancipation of the children was to occur upon the occurrence of graduation from a four-year undergraduate program, termination of education for reasons other than health after the age of eighteen, full-time employment while not attending school full-time, marriage or induction in the military. The agreement was based on plaintiff's gross employment income of $120,016 per year and defendant's imputed employment income of $8580 per year and her non-taxable rental income of $8996 per year.
After a brief post-divorce reconciliation, the parties executed a consent order dated October 15, 2003, which contained various forms of relief, including stipulations that the provisions related to custody and parenting time in the final judgment were to "remain unchanged" and all communication between the parties was barred except email concerning the children.
A subsequent consent order dated July 20, 2004, increased plaintiff's alimony obligation from $575 to $1000 per week and his child support obligation from $297 to $358 per week. These amounts were based on plaintiff's 2003 gross annual income of $167,000 and defendant's imputed gross annual income of $9360.
Plaintiff was terminated with severance from his position with McGraw-Hill Companies, effective January 6, 2006. On January 27, 2006, plaintiff moved to reduce his support obligations based on changed circumstances. His motion to reduce support was ultimately denied on July 18, 2006, based upon his failure to establish changed circumstances. Plaintiff appealed, and while the appeal was pending, he filed an emergent application to stay enforcement. On August 14, 2007, we summarily remanded the matter to allow the court to amplify the record and make findings as to plaintiff's indigency for the purpose of appointing counsel pursuant to Pasqua v. Council, 186 N.J. 127 (2006), and to determine his ability to pay arrears.
The court then conducted an ability-to-pay hearing on November 8, 2007. Plaintiff detailed his job search efforts and enrollment in a paralegal studies program. Defendant testified that she believed plaintiff quit his job with McGraw-Hill purposefully to avoid paying support. By written decision dated November 27, 2007, the court found that plaintiff did not have the ability to meet the terms of the July 20, 2004 consent order. The court maintained the child support obligation at $358 per week, but reduced alimony to $42 per week; the order did not address alimony arrears.
Thereafter, we decided plaintiff's appeal on May 14, 2008, determining that he had "established a prima facie case of changed circumstances" and that he was entitled to a plenary hearing to determine "whether a change in [his] financial circumstances warrants a reduction in his alimony and child support payments" and whether any modification should be retroactive to an earlier date. Geaney v. Geaney, No. A-4591-06 (App. Div. May 14, 2008).
At the hearing on October 23, 2008, plaintiff testified that he was employed "using [his] paralegal skills as a contracts type administrator" earning $40,000 per year.
Plaintiff indicated that he could afford only $50 per week in alimony. He claimed that he agreed in 2004 to essentially double his support obligations in order "to see [his] kids" and he denied going "on a mission" to decrease his income when that did not work. An extensive cross-examination explored whether plaintiff intentionally failed to disclose his 401K with McGraw-Hill*fn1 when he applied for indigency status in 2007. The questioning also probed the reasons why plaintiff filed the motion for a reduction so soon after losing his job in January 2006.
By letter dated September 29, 2009, plaintiff's counsel advised the court that plaintiff was withdrawing his request for modification of support, thereby obviating "the need to continue the pending plenary hearing."
In a letter dated October 2, 2009, defendant's counsel alerted the court that she received information about a "super secret session" between plaintiff, plaintiff's counsel and the judge. At a hearing eight months later, the court explained that this session "was limited to the question of whether or not ethically [plaintiff's counsel] could remain in the case."
By letter dated November 11, 2009, defendant's counsel asked the court to compel plaintiff to pay arrears in a lump sum, to resume paying $1000 per week in alimony and $358 in child support, and to pay counsel fees. The letter indicated that counsel was "fairly confident" that plaintiff's arrears totaled $245,715. It further claimed that defendant had incurred taxes and penalties when cashing in her IRA because of plaintiff's failure to pay support, as well as "nearly $40,000" in counsel fees.
By an administrative cost-of-living adjustment order dated December 8, 2009, plaintiff's child support was increased to $372 per week pursuant to Rule 5:6B, alimony remained at $42 per week and arrears remained payable at $50 per week for a total support obligation of $464 per week.
The court subsequently entered an order dated December 24, 2009, pursuant to plaintiff's request, withdrawing "with prejudice" his 2006 application for a modification of child support and alimony. This order further provided that the July 20, 2004 order compelling plaintiff to pay $1000 per week alimony and $358 per week in child support was to "remain in full force" and probation was to calculate arrears by January 6, 2010.*fn2 The order also detailed an additional $630 payment plaintiff was to make and stated that a bench warrant would be issued if the payment was not made timely.
On March 9, 2010, plaintiff filed a new motion to:
(1) emancipate his older son as of December 1, 2008;
(2) recalculate child support for his younger son as of the same date; (3) compel defendant to provide an updated CIS; (4) compel probation to credit plaintiff for any overpayment since the emancipation date; (5) eliminate or modify plaintiff's alimony obligation ...