On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1091-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and St. John.
Defendant Salvatore Simonetti appeals from the January 7, 2011 order of the Family Part denying his motion for modification of his support obligations, as well as other relief.
Having considered the limited record before us, and in light of the applicable legal principles, we conclude that the motion judge should have conducted a plenary hearing. Consequently, we reverse and remand for such a hearing.
The parties were married in 1987, and had two children born in 1988 and 1991. On January 3, 2006, plaintiff Maria Simonetti filed a complaint for divorce. The parties subsequently entered into a property settlement agreement (PSA), which resolved all issues between them, including defendant's support obligations to plaintiff. On May 17, 2007, a Family Part judge entered a Final Judgment of Divorce.
In 2008, defendant filed a motion for a reduction of his support obligations. On October 31, the motion judge denied defendant's application for modification, determining defendant had not demonstrated a prima facie showing of changed circumstances. Defendant appealed the order in December. In July 2009, the parties entered into a consent order, agreeing to certain payments, including a reduction of defendant's unallocated support payments, and a dismissal of the appeal.
In May 2010, defendant filed a second motion for reduction of support, and for other relief. Plaintiff sought to enforce the 2009 consent order. Attached to defendant's certification was his case information statement (CIS). The court set defendant's income "based upon [d]efendant's average income from 2006 through 2009" in the amount of $129,000 per year. On August 27, the motion judge denied defendant's application for modification, again determining defendant had not demonstrated a prima facie showing of changed circumstances.
In October 2010, defendant filed a third motion for reduction of support, and for other relief. Defendant asserted he was laid off in 2008 due to a downturn in the home building industry, and that he had aggressively sought employment but had only obtained employment in a family restaurant business, earning $45,000 per year. He claimed the exhaustion of all assets, including having no equity in his home. Defendant also sought emancipation of his daughter, contending she was not actually pursuing her education.
The motion judge, without a plenary hearing, found defendant had not adequately shown changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980), which was required to obtain relief. In denying defendant's application, the court found "that [d]efendant has not demonstrated a substantial change in circumstances warranting a modification of his child support and spousal support obligations." Because this conclusion is contrary to the recent employment and income history asserted by defendant as well as the produced evidence suggesting defendant has other sources of income, his motion could not be resolved without a plenary hearing.
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, supra, 83 N.J. at 157. "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, 275 (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) (internal citation omitted), certif. denied, 114 N.J. 505 (1989). "[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).
It is well-established that trial courts have "broad equitable powers . . . to review and modify alimony and support orders at any time." Weitzman, supra, 228 N.J. Super. at 353. See also N.J.S.A. 2A:34-23. In making such assessments, we are guided by the Supreme Court's holding in Lepis. First, the moving party must make a threshold prima facie showing that "changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157. In considering a proffer of changed circumstances, it is often necessary for the court to delve into the financial status of both parties. Id. at 157-58. When such a showing is made, the court must next determine if a plenary hearing is warranted. Id. at 159. To obtain such a hearing, the moving party must ...