On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1465-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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
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 ...