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David P. Cannell v. Barbara J. Cannell

October 17, 2012

DAVID P. CANNELL, PLAINTIFF-APPELLANT,
v.
BARBARA J. CANNELL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-315-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2012 -

Before Judges Simonelli and Hayden.

In this post-judgment matrimonial matter, plaintiff David P. Cannell appeals from the February 4, 2011 Family Part order denying his motion to reduce his alimony payments to defendant Barbara J. Cannell and increasing his child support payments; the April 29, 2011 order denying his motion for reconsideration; and the May 6, 2011 order further increasing his child support payments for his younger child.*fn1 For reasons that follow, we affirm the denial of a decrease in alimony but remand for the trial judge to make clearly delineated and specific findings addressing the statutory factors in N.J.S.A. 2A:34-23 for his determination of discretionary child support.

The parties were married on December 22, 1984 and have two children. They were divorced on February 19, 2003 and the final judgment of divorce incorporated a Property Settlement Agreement (PSA). In the PSA, the parties "acknowledge[d] that during the last three years of their marriage . . . they lived on the plaintiff's average net income of $122,524 without consideration of their savings." Plaintiff agreed to pay defendant $3150 per month in alimony, and $338 per week in child support. Under the PSA, the child support for each child was to cease when the child was emancipated. Additionally, although defendant was not working, the parties imputed an annual income of $20,000 to her.

The parties also agreed that if defendant earned $40,000 per year or more, the alimony obligation would be subject to review based upon her increased income.

In 2008, defendant sought a modification of alimony and child support based upon changed circumstances, specifically that plaintiff's earnings totaled approximately $288,000 in 2007. Defendant had continued to work part-time as a massage therapist and often earned less than $2,000 per year. The motion judge increased plaintiff's alimony obligation to $4575 per month. The judge decreased child support to $191 per week, chiefly because the older child attended college and lived on campus. The judge also modified the parties' shares of contributions to college tuition and related expenses.

On January 8, 2010, the parties agreed in a consent order that the older child was emancipated effective May 15, 2009. The consent order acknowledged that the parties still disagreed about alimony, child support and emancipation of the younger child. The order stipulated that these issues were to be resolved by negotiation or adjudication and that defendant would refund child support payments made for the older child after her emancipation date.

In November 2010, plaintiff moved for downward modification of alimony and child support, alleging a material change in circumstances, because his annual income had dropped from $288,000 to $208,000 due to adverse business conditions beginning in late 2009. He submitted tax returns, a case information statement (CIS) and the certification of his accountant as proof of his decreased income. Plaintiff explained that his 2009 earned income of $299,919 was inflated because he had withdrawn $50,000 from his retirement account to pay his income tax. He also sought the modification of child support since his older child had been emancipated, and credit for overpayments he had made since the emancipation. Lastly, plaintiff requested that the imputed income for defendant be increased from $23,114 based on a 2002 report from an employability expert who had posited that in several years defendant's income should be $35,000 to $40,000.

By order of February 4, 2011, the trial judge denied plaintiff's motion to decrease alimony and child support. The judge determined that plaintiff had not presented satisfactory proof of decreased income, particularly because his 2009 tax return reflected a higher income than in 2008. The trial judge also found that, even if plaintiff's decreased income claim was accurate, he had not established that the decrease was more than temporary.

In addition, the judge modified child support based upon the emancipation of the older child, and calculated current child support based on the New Jersey Child Support Guidelines (Guidelines) using plaintiff's 2009 income of $299,919 and defendant's $23,113 imputed income. Using the Guideline maximum of $187,200, the judge found that plaintiff owed $387 in weekly child support for one child. Further, the judge ordered defendant to submit a budget for expenses for the younger son in order to address discretionary child support above the Guidelines maximum income.

On February 10, 2011, plaintiff moved for reconsideration of this order, reiterating that he had presented unrefuted evidence of a significant decrease in income. On March 8, 2011, plaintiff filed a supplemental certification and included, for the first time, a copy of a newly-prepared Schedule K-1 of his 2010 income tax return to support his contention that his income for 2010 was $191,668. On April 29, 2011, the trial judge denied the motion for reconsideration. The judge found that, although plaintiff had submitted his Schedule K-1, he had failed to submit his current CIS,*fn2 and, thus, had not demonstrated a prima facie showing of substantial and permanent changes. Additionally, the judge found that in asking for reconsideration plaintiff had failed to demonstrate that the court had overlooked any fact or made any error in denying his motion for a modification.

Meanwhile, on February 23, 2011, defendant submitted the younger son's budget, which totaled $2771 per month. Plaintiff had the opportunity to submit opposition to the budget but failed to do so. On May 6, 2011, the judge issued ...


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