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Carl Monto v. Bridget Immersi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 20, 2012

CARL MONTO, PLAINTIFF-APPELLANT,
v.
BRIDGET IMMERSI, F/K/A BRIDGET MONTO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1465-97.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 18, 2011

Before Judges Fisher and Nugent.

Plaintiff Carl Monto appeals from a post-judgment Family Part order that denied his motion to modify child support, declared that he had violated litigant's rights by failing to pay child support, required him to pay seventy-five percent of the parties' son's college expenses, and entered a judgment resulting from his marital tort against his wholly-owned corporation. We reverse those provisions of the order that required him to pay seventy-five percent of his son's college expenses, and entered judgment against the corporation. We affirm in all other respects.

I.

Plaintiff and defendant were married in 1991, had one child, now age twenty, and were divorced on February 15, 2000. Following a two-day trial in January 2000, the court entered a dual judgment of divorce (JOD) that, among other terms, granted defendant sole legal and residential custody of the parties' child, plaintiff being incarcerated; required plaintiff to pay weekly child support of $160; directed plaintiff to notify the court and defendant of his release from prison, and appear in court within thirty days of his release so that child support could be adjusted; and ordered plaintiff to provide defendant with health coverage for her and their son, defendant to pay for the insurance during plaintiff's incarceration, plaintiff to reimburse defendant thereafter. The JOD also ordered plaintiff to pay defendant $17,500 in compensatory damages and $15,000 in punitive damages as the result of defendant's Tevis*fn1 claim for injuries she sustained during two assaults by plaintiff.

On July 8, 2009, plaintiff's weekly child support obligation was increased to $209 as the result of a cost-of-living adjustment.

On September 20, 2010, plaintiff filed a motion to reduce his child support. To establish changed circumstances warranting a reduction in his support obligation, plaintiff included a certification in which he stated that he lost his job at a Honda dealership because of his criminal record, and could no longer sell cars. He also averred that he suffered from "many different health issues," including complications from open heart surgery and the residuals of surgery to repair a torn meniscus. He claimed that he was medically unable to work and would be unable to work for the foreseeable future, and filed numerous medical records to support his claim.

Plaintiff also certified that defendant was the sole heir to her mother's estate. He asserted that he had obtained a judgment in favor of his business, Action Fuel, Inc., in the amount of $6,528.02 against the defendant's mother, and sought a credit for that judgment against his child support arrears.

Plaintiff filed with his motion a case information statement (CIS) and a 2009 income tax return for himself and his business. Those records indicated that his 2008 gross income was $23,698, and his 2009 gross income was $9797. From January 1 through September 17, 2010, his gross income was $15,200. In a subsequent certification, plaintiff submitted documents from his 2004 bankruptcy that indicated he was earning $84,288 annually.

Defendant filed a cross-motion seeking an order denying plaintiff's motion in its entirety and numerous other forms of relief, including a declaration that plaintiff had violated litigant's rights by failing to comply with numerous provisions of the JOD; an order compelling plaintiff to contribute to their son's college expenses, and to pay in full the $32,500 damage award for defendant's Tevis claim; an order compelling plaintiff to pay child support and other arrearages; and the entry of a judgment against Action Fuel, Inc. "for all child support arrears and all other monetary relief" granted pursuant to the cross-motion.

In her supporting certification, defendant disputed plaintiff's claim that he could not work because of his criminal background and medical condition. She alleged that plaintiff continued to sell cars through his business, I Buy Cars For You, LLC, whose president was plaintiff's current wife. The number listed on the company's website was plaintiff's mobile phone number, and plaintiff was pictured on the company's website "standing in front of a trailer full of cars and a trailer full of SeaDoo's." A video featured on the website indicated that the company imported cars, boats, trucks, helicopters, airplanes, and other vehicles. Plaintiff also submitted a printout dated October 27, 2010, from "LinkedIn.com" listing plaintiff as "Pres at I Buy Cars for You."

Defendant culled from plaintiff's medical records letters from one of his doctors, dated August and December 2000, stating that he could "return to work full duty" and "work at full capacity without restrictions." Defendant averred that at her place of employment, "[w]e treat people with physical therapy for meniscus repairs all the time. These patients walk into therapy and walk out of therapy. In general, meniscus repairs take a matter of weeks to heal and, literally, a couple of days out of work."

Defendant also questioned the expenses plaintiff listed on his CIS. She pointed out that he paid $953 per month for rent, but the home where he lived was titled in the name of his current wife. Additionally, she noted that plaintiff's tax return indicated that his company, Fuel Additive Sales, grossed $25,537, but plaintiff provided no explanation as to what income he derived from the company. Lastly, defendant attached an order to show cause issued by the Family Part to plaintiff in October 2008, requiring him to appear and show cause why he should not be held in contempt for failing to prosecute or settle a workers' compensation claim. Defendant alleged that he had delayed or obstructed resolution of the workers' compensation claim to avoid paying his child support arrears.

In his reply certification, plaintiff asserted that the information about I BUY CARS FOR YOU, LLC was obtained from a third party's website, not the company's; that his current wife owned the company and the cell phone; and that all information from the internet was "extremely dated." Plaintiff also pointed out that the medical records cited by defendant were three years old. He asserted that Action Fuel, Inc. had "no assets and there [was] no activity with regard to same"; disputed that he had obstructed the settlement of his workers' compensation claim to avoid paying child support; and claimed that certain debts that defendant said plaintiff owed her had been discharged in bankruptcy.

The court heard oral argument on the cross-motions on January 7, 2011. Unable to locate any medical records stating that plaintiff was then unable to work, the court asked plaintiff's counsel if any existed. Plaintiff's counsel cited a document his client had handed to him that morning, but the document had not been submitted to the court previously, was not certified, and was not a narrative report. Plaintiff's counsel conceded there was nothing "in the paperwork" that indicated his client had attempted to find employment. Counsel reiterated plaintiff's position that plaintiff had been unable to find work due to his criminal record.

The court inquired about defendant's allegation that the cell phone number listed for I BUY CARS FOR YOU, LLC belonged to plaintiff, and plaintiff's responding certification that the cell phone was owned by his wife. Plaintiff had included with his reply papers cell phone records indicating that their son had placed personal calls to plaintiff at the "business number." Plaintiff's counsel responded that the number was also "used as the home phone number." Plaintiff also acknowledged that at one time, "in the beginning," he had been president of I BUY CARS FOR YOU. Plaintiff conceded through counsel that he had provided no information about how his current wife had become president of the company, or what plaintiff did for the company. Plaintiff also conceded that he was released from prison in 2001, and thereafter worked for I BUY CARS FOR YOU, as evidenced by the internet photograph showing him posing at the business premises.

Defendant's counsel conceded that many of the debts defendant claimed were owed by plaintiff had been discharged in plaintiff's bankruptcy. Those debts included the compensatory damages for the Tevis claim, but not the punitive damages.

The trial court denied plaintiff's motion to reduce child support. The court noted that it had "no medical documentation that says that he cannot work," and "no information as to what [plaintiff] has done to try to find a job." The court explained that plaintiff earned $84,288 when he filed for bankruptcy in 2004, but had "no information as to what has happened to his employment since that time." The court had no information about the job plaintiff held in 2004; whether he had applied for another job; or whether he had looked for a job since then. The court concluded that it had "no way of knowing whether [plaintiff] is legitimately out of work or not legitimately out of work."

The court further explained that plaintiff had been president of a company that his current wife now owned. Yet, plaintiff did not explain how the change came about, or anything else about the business. Additionally, plaintiff lived with his current wife, and expenses claimed to be his appeared to be their shared expenses.

The court granted defendant's cross-motion to have plaintiff contribute toward their son's college expenses. Based upon plaintiff's 2004 income, the court required plaintiff to pay seventy-five percent of those expenses.

The court added healthcare and daycare arrears that had been fixed in the JOD to plaintiff's child support arrears and ordered plaintiff to apply for a life insurance policy within thirty days. The court also added post-judgment interest to the arrearages. Lastly, the court entered judgment against Action Fuel, Inc. in the amount of $15,000 for the punitive damages that had been awarded to defendant on her Tevis claim.

Plaintiff appealed from the court's confirming order, and filed a motion requesting that we summarily reverse the trial court's decision. We denied the motion, but permitted plaintiff to rely upon his "motion brief as a merits brief."

II.

Plaintiff argues: (1) he clearly established changed circumstances that entitled him to a review of his child support obligation; (2) the trial court erred by basing plaintiff's obligation to contribute to his son's college expenses on his 2004 income; (3) the court erred by declining to consider defendant's inheritance; (4) the court abused its discretion by entering a judgment against Action Fuel, Inc. for anything other than child support arrears; and (5) a different judge should decide the matter on remand.

Courts are authorized by statute to "revise[] and alter[]" child support orders "from time to time as circumstances may require." N.J.S.A. 2A:34-23. "The party moving for the modification bears the burden of making a prima facie showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 420 (1999) (citing Lepis v. Lepis, 83 N.J. 139, 157 (1980)). To make a prima facie showing of changed circumstances, "it is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances." Donnelly v. Donnelly, 405 N.J. Super. 117, 130 n.5 (App. Div. 2009). If the party seeking the modification of a support order makes the prima facie showing of changed circumstances, "a court may order discovery and hold a hearing to determine the supporting spouse's ability to pay." Miller, supra, 160 N.J. at 420.

Whether a child support obligation should be modified based on changed circumstances is a decision that rests within a Family Part judge's sound discretion. See Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Each case "'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).

Here, the trial court did not abuse its discretion when it determined that plaintiff had not made a prima facie showing of changed circumstances. Plaintiff provided virtually no information about how he had "attempted to improve [his] diminishing circumstances." Donnelly, supra, 405 N.J. Super. at 130 n.5. As the trial court noted, plaintiff earned $84,288 in 2004, three years after he was released from prison. At that time, plaintiff was also the president of I BUY CARS FOR YOU, LLC. When plaintiff filed his motion, his current wife was president of the company. The trial court appropriately pointed out that plaintiff had offered no evidence either as to how the change came about or the status of the company. Although plaintiff claimed that he was disabled from various medical conditions, and though he had filed numerous medical records concerning surgical procedures that he had undergone, he offered neither a certification nor a narrative report from any doctor attesting to his medical condition or ability to work at the time of his application.

The trial court justifiably viewed plaintiff's omissions as fatal to his prima facie case. Although plaintiff asserted that he paid significant monthly rent, he did not explain the circumstances under which his current wife charged him rent for the home that they shared. And though plaintiff denied that the phone number listed for I BUY CARS FOR YOU belonged to him, his reply papers established that his son telephoned him at that number. The trial court considered all of those circumstances, and acted well within its discretion when it denied plaintiff's motion to reduce child support.

Plaintiff argues that the trial court erred by failing to consider defendant's inheritance. Defendant has included with her appeal brief a copy of an affidavit in which she lists the value of her late mother's assets as $96.80. Defendant did not provide the trial court with the affidavit. Nevertheless, plaintiff's mere assertion in his motion papers that "defendant is now the sole heir to her mother['s] . . . estate" is, without more, insufficient to overcome the deficiencies in plaintiff's proofs of a prima facie case of changed circumstances.

Plaintiff next contends that the court erred by requiring plaintiff to pay seventy-five percent of the parties' son's college expenses. The Supreme Court has enumerated twelve factors that a trial court should consider when determining a spouse's contribution toward the cost of higher education. See Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). The trial court apparently failed to consider those factors; it made no findings of fact or conclusions of law. Such findings are required. See R. 1:7-4. "Naked conclusions do not satisfy the purpose of R[ule] 1:7-4[,] [r]ather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980) (citations omitted). Accordingly, we reverse that part of the trial court's order requiring plaintiff to pay seventy-five percent of the parties' son's college tuition, and remand that issue for the court to make findings of fact and conclusions of law; and to conduct a hearing if necessary.

We reach the same result concerning the trial court's entry of judgment against Action Fuel, Inc. The trial court provided no factual or legal basis for entering a judgment against a corporate entity based on the intentional torts of a sole shareholder.

Lastly, plaintiff argues that on remand the matter should be scheduled before a different judge. Based on our review of the record, we conclude that argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In summary, we reverse paragraph six of the Family Part's January 7, 2011 order compelling plaintiff to pay seventy-five percent of the parties' son's college expenses, and paragraph fourteen entering judgment against Action Fuel, Inc. for the punitive damage award in the sum of $15,000. We remand those issues to the trial court for further findings of fact and conclusions of law, and, if necessary, a hearing. The order is affirmed in all other respects.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


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