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Terence J. Deckert v. Helen C. Deckert

February 27, 2012

TERENCE J. DECKERT, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
HELEN C. DECKERT, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-3-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 17, 2012

Before Judges Parrillo, Alvarez and Skillman.

Defendant, Helen Deckert, appeals from a post-divorce judgment order of the Family Part reducing plaintiff's, Terence Deckert's, child support obligation from $1,500 monthly to $225 per week (or $967.50 per month). Among other arguments, she contends the trial court erred in finding changed circumstances; in determining the amount of income imputed to both parties; in calculating the number of overnight visits exercised by each party; and in reducing plaintiff's child support obligation prior to completion of discovery and without plaintiff's current case information statement (CIS), without information she requested regarding plaintiff's law firm and live-in companion, and without benefit of findings of fact and conclusions of law. Plaintiff cross-appeals, contending the court erred in not holding defendant in contempt for violating prior discovery orders, failing to extend discovery and denying him attorney's fees and costs. We affirm save for a limited remand to recalculate the number of overnight visits by plaintiff and for any adjustment in his child support obligation deemed appropriate by this recalculation.

By way of background, the parties were married on June 14, 1990 and have two sons, the older of whom is presently in college. The parties divorced by way of a dual final judgment of divorce (FJD) dated January 12, 1998. The FJD provided that the parties share custody of the children and named defendant as the residential custodian. Plaintiff's child support obligation was set at $500 per week or $2,166.66 monthly until December 2000, at which time their income was to be reviewed and child support revised if appropriate. Plaintiff also was to pay two-thirds of the children's day care expenses, totaling an additional $140 per week.

Subsequently, in an unsigned court order with an effective date of August 10, 2001, plaintiff's child support obligation was fixed at $518 per week, including day care, or $2,227.40 monthly, based on plaintiff's imputed income of $150,000. This order remained in effect until the parties executed a consent order on October 28, 2009, effective June 1, 2009, reducing plaintiff's child support obligation to $1,500 monthly until July 31, 2010, "at which time the parties will either reach a consent agreement as to the . . . child support obligation or present an application to the Court for further consideration."*fn1

The order was to remain in effect until the eldest child started college*fn2 and that [b]oth parties reserve their respective rights to make any and all arguments that each feels appropriate as to what should be the ongoing child support Order from that period of time forward, it being understood that the $1,500 interim Order now being entered shall not be probative as to the ongoing Order to be effective when [the older son] matriculates in college.

The order also fixed a discovery schedule.

Thereafter, there was disagreement between the parties over the scope of discovery, focused in part on plaintiff's attempt to secure financial information involving defendant's new husband, prompting plaintiff to file a motion on August 3, 2010 to compel discovery and reduce child support. In his August 30, 2010 tentative decision, the Family Part judge denied relief stating that "there is insufficient information upon which the Court can make a determination" on modification of child support because "[p]laintiff alleges unemployment but shows expenses of nearly $6,000.00 per month or $70,000.00 per year and does not explain the source of said payments" and "there appears to be an additional $5,000.00 worth of mortgage payments per month . . . ." The judge, however, did require the parties to take depositions and answer interrogatories within sixty days of the order and limited relevant discovery to the last three years. The parties subsequently agreed to exchange discovery on October 20, 2010, although defendant would provide plaintiff only with the last five years of her W-2 income instead of her tax returns since she jointly files with her husband, who is not a party to the litigation.

On November 2, 2010, plaintiff filed another application to modify child support, enforce litigant's rights, compel discovery, extend discovery, and for attorneys fees and sanctions. By then, plaintiff had already filed for Chapter 7 Bankruptcy in May 2010 and all his debts were discharged on September 9, 2010, including $300,000 in credit card debt and legal fees and $425,000 home equity loan. According to plaintiff, the only debt he has to repay is a loan from his father in the amount of $250,000. And although plaintiff's February 16, 2010 CIS reported an annual salary of $95,000, as did an earlier CIS, his most recent CIS dated September 1, 2010 indicated annual income of only $24,960, representing unemployment benefits he was receiving every two weeks. Following defendant's opposition and argument, the trial court entered an order pursuant to the Child Support Guidelines reducing plaintiff's child support obligation to $225 per week ($967.50 monthly) based on an annual income of $100,000 imputed to plaintiff and $31,200 to defendant. The $225 amount was comprised of $175 for the younger child based on the Guidelines and 26.30% parenting time attributed to plaintiff, and an additional $50.00 per week for the older child in college, representing a prorated amount of the $175 proportionate to the amount of time that the older child spent at home. The court denied all other relief sought by plaintiff. This appeal and cross-appeal follow.

Defendant initially contends that plaintiff failed to make a threshold showing of changed circumstances to warrant consideration of his request of a reduction in child support. We disagree.

In order to modify child support there must be a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980); Chalmes v. Chalmes, 65 N.J. 186, 192 (1974). Such a showing includes "the increase or decrease in the supporting spouse's income[,]" Lepis, supra, 83 N.J. at 146; see also Martindell v. Martindell, 21 N.J. 341, 355 (1956), and a child's increase or decrease in needs, due to various events, ibid., including attending college. Colca v. Anson, 413 N.J. Super. 405, 415-16 (App. Div. 2010). Of course, the party moving for the modification has the burden of establishing that the changed circumstances are substantial enough to warrant the relief sought. Lepis, supra, 83 N.J. at 157. Further, the moving party has the initial burden of demonstrating a prima facie showing of changed circumstances before the court will order discovery of the full financial circumstances of the parties. Id. at 157-58. The modification based on changed circumstances is left to the sound discretion of the trial court and will only be reversed if there is an abuse thereof. Innes v. Innes, 117 N.J. 496, 504 (1990). And although "[c]courts have consistently rejected requests for modification based on circumstances which are only temporary[,]" Lepis, supra, 83 N.J. at 151, there is no bright line rule of measurement and such determinations reside within the broad discretion of Family Part judges, which we will not disturb absent an abuse thereof. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

Here, plaintiff has demonstrated changed circumstances in that he was unemployed at the time of his application and his oldest child had commenced boarding at college. In his notice of motion, plaintiff sought to "modify child support as a result of substantial changes in circumstances," which he specified and explained in his certification in support of his motion. Therein, he stated that "[p]aragraph 4 of the [interim] consent order [dated October 28, 2009] also provides that my new child support obligation is binding until [my oldest child] attends college. The Court should know that as of August 13, 2010, [my oldest child] has been attending Arizona State University, in Tempe[,] Arizona." Further, plaintiff's reply certification reiterated that "[t]he $1,500 represents an interim ...


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