December 7, 2012
LISA A. MECCIA, N/K/A LISA EDWARDS, PLAINTIFF-RESPONDENT,
JOSEPH D. MECCIA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2936-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012
Before Judges Yannotti and Espinosa.
Defendant appeals from various post-judgment orders that relate to his efforts to modify his child support obligation. We are unpersuaded by defendant's arguments and affirm.
The parties were married in 1993 and had two children, born in 1996 and 1998. They have comparable educational backgrounds. Plaintiff is a certified public accountant. Defendant has a degree in accounting and information systems as well as an M.B.A. with a concentration in finance.
At the time they married, defendant earned approximately $44,500, working as a senior electronic data processing auditor at Carteret Savings Bank. He left Carteret Savings Bank in 1993 to work for American Reinsurance Company, earning approximately $44,560 that year. After his employment was terminated in July 1994, defendant spent several years investigating self-employment opportunities. In 1996, defendant entered into a business partnership that failed three years later. The parties filed for bankruptcy in 2000.
Defendant had difficulty finding employment and enrolled in a program at Chubb Institute that resulted in his obtaining a certificate in client server applications development in 2000. He obtained a job as a software engineer, earning $50,000, but that employment was terminated after only three months. Thereafter, defendant worked for an off-shore sports betting company for approximately two years. Initially, he earned $1000 per month as a forum moderator. His income rose to $2500 per month. Defendant left this employment in 2002.
Plaintiff filed a complaint for divorce in 2003 and defendant filed a counterclaim. In May 2003, defendant obtained a job at Target, earning approximately $24,500 per year. At the trial of the divorce action, defendant contended that he was unable to obtain other employment commensurate with his education and experience.
Child support was a disputed issue in the parties' divorce trial. The court found that plaintiff's income, "in the low eighty thousands," was commensurate with her education and experience. Although the court rejected plaintiff's contention that defendant was voluntarily underemployed, the court found defendant did not earn an income appropriate to his education and experience. Specifically, the court found that defendant had the ability to earn more money by either working additional hours or getting an increase in pay. Accordingly, the court imputed income of $40,000 per year to defendant and required him to pay approximately $18 per week in child support. An amended final judgment of divorce (JOD) was entered in 2005.
Defendant filed two motions for reconsideration, each of which was denied. He then appealed. This court affirmed the trial court's decision in an unpublished opinion, Meccia v. Meccia, No. A-5740-05 (App. Div. Oct. 23, 2008). His petition for certification was denied. Meccia v. Meccia, 198 N.J. 473 (2009).
Since the parties' divorce, defendant moved out of his parents' home in 2008, where he was paying $500 per month rent, to an affordable housing unit, where he was paying monthly rent of $946, excluding utilities. His working hours at Target were reduced in January 2009 and he applied for unemployment benefits. His combined income for 2009 from Target and unemployment benefits was approximately $24,000.
In May 2010, defendant filed motions to proceed as an indigent, to enforce litigant's rights and to modify his child support obligation. As a result of two Cost of Living Adjustment (COLA) increases, defendant's obligation had increased to $22 per week.
In support of his motion to enforce litigant's rights and modify child support, defendant submitted a certification in which he stated plaintiff had "received promotions and changed jobs twice, each with increasing responsibilities and compensation." In contrast, he described his part-time employment and supplied his three most current paystubs. Defendant stated further that, pursuant to paragraph 51 of the JOD, the parties were required to exchange their income tax returns on an annual basis for the purpose of calculating child support. He stated he had provided his tax returns to plaintiff but that she refused to reciprocate. Defendant attached copies of the JOD, including the shared parenting child support guidelines; the notice that he was not eligible for extended unemployment benefits; three paystubs; his letter to plaintiff's counsel; his W-2s for 2009; and plaintiff's counsel's response to his letter. He did not submit an updated case information statement (CIS).
Plaintiff filed a cross-motion, seeking an upward modification of defendant's support obligation from $22 to $42 per week, and attorneys' fees and costs. She acknowledged that her income had risen since the last calculation of support but stated that the cost of living and the expenses for their now teen-aged children had also increased. Among the documents submitted in support of her motion was a copy of plaintiff's federal income tax return for 2009, which reflected an adjusted gross income of $85,576. Plaintiff stated that she anticipated earning a gross annual income of $96,000. Plaintiff argued that defendant should be imputed income of $52,930, the annual mean wage of a paralegal in New Jersey according to the Bureau of Labor Statistics because he completed a paralegal course. She supplied the court with a "Child Support Guidelines - Shared Parenting Worksheet" based upon these incomes, which resulted in a support obligation of $42 per week for defendant. Accordingly, plaintiff asked for an increase in support to that amount.
At oral argument, defendant stated he was seeking a reduction in child support because he had suffered prolonged unemployment and plaintiff had enjoyed a large increase in income. He contended that "running the schedules" would result in a reduction in his obligation. However, unlike plaintiff, he provided no calculation to support this contention.
At oral argument, defendant made the following representations to the court. His unemployment benefits had ceased approximately two weeks earlier. He had "zero" likelihood of obtaining full-time employment with Target or increasing the number of hours he worked for them. Defendant stated he was "actively looking" for additional employment, but provided no details regarding his job search.*fn1 He was a charity care patient at St. Clare's Hospital as a result of his income and received food assistance from the Morristown Interfaith Food Pantry. He was under care for depression at St. Clare's Behavioral Health Services and received free or discounted prescription drugs through programs run by pharmaceutical companies.
It was during the course of his colloquy with the court that defendant presented the court and plaintiff with an updated CIS. According to the CIS, defendant had $72,100 in assets. Defendant had received approximately $100,000 from plaintiff for his interest in the marital residence. He used $82,000 of the money received from plaintiff to repay loans to his father and brother, although he was not legally obligated to do so. However, he had still failed to pay plaintiff $10,000 he was ordered to contribute to her counsel fees in 2008 following his unsuccessful appeal.
Defendant graduated from a paralegal studies program in April 2010. He told the judge that of the twenty-two students in his class, it was his belief that everyone had obtained employment except for him and a 65-year-old man. Defendant said one of his fellow students was earning $40,000.
The trial court denied defendant's motion for a modification in child support or for discovery, finding he had failed to meet his burden of showing a substantial change in circumstances. The court found that the imputation of $40,000 in income to defendant continued to be reasonable. The court described defendant's motion as "a very, very frivolous motion . . . an insult to the Court and to your ex-wife that you would come in here and ask that $22 a week be reduced." The court granted plaintiff's request for counsel fees but denied her motion for an increase in child support.*fn2 The court ordered that defendant pay plaintiff $2756 in counsel fees for the motion. The court further ordered that this amount, along with the prior unpaid counsel fee award of $10,000, be paid through the Probation Department at the rate of $75 per week until the entire amount was satisfied.
Defendant filed a motion for reconsideration on October 13, 2010, as well as a motion to remove the COLA from his child support obligation on that same date. Plaintiff cross-moved for attorney's fees on November 18, 2010. The court denied plaintiff's and defendant's motions on December 3, 2010.
On appeal, defendant argues that the court erred (1) by finding that there was no change in circumstances; (2) by not removing the COLA from defendant's child support obligation; (3) by converting the previously awarded attorney's fees into child support arrears; (4) by awarding attorney's fees to plaintiff; (5) by improperly garnishing defendant's wages; and (6) by not allowing defendant to correct the record. We are unpersuaded by any of these arguments.
We turn first to defendant's argument that the trial court erred in denying his motion to modify child support as the result of a change in circumstances.*fn3 A party who moves for modification must make "a prima facie showing of changed circumstances[.]" Miller v. Miller, 160 N.J. 408, 420 (1999) (citing Lepis, supra, 83 N.J. at 157-59). "Upon such a showing, a court may order discovery and hold a hearing to determine" the appropriate amount of support. Miller, supra, 160 N.J. at 420 (citing Lepis, supra, 83 N.J. at 152).
The requisite change may be shown "in the movant's financial circumstances, or the opponent's, or a combination of both." Donnelly v. Donnelly, 405 N.J. Super. 117, 131 (App. Div. 2009). "[A] payor spouse is as much entitled to a reconsideration of alimony where there has been a significant change for the better in the circumstances of the dependent spouse as where there has been a significant change for the worse in the payor's own circumstances." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). When it is argued that the circumstances of both parties have changed, "a movant may make a prima facie showing of changed circumstances under Lepis by citing a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review." Ibid. Changed circumstances may also be shown by other facts, such as "child maturation." Miller, supra, 160 N.J. at 420; Lepis, supra, 83 N.J. at 152.
In this case, defendant argues that his earnings had remained stagnant for the past five years, never rising above $27,688.63, and that it was therefore error for the court to continue to impute income of $40,000 to him. He supports his argument of decreased ability to pay by citing increases in his expenses, including the doubling of his rent as a result of his decision to move from his parents' home. He argues further that there was a change in circumstances because plaintiff's income had increased significantly. He notes that, in support of her cross-motion, plaintiff included her 2009 federal income tax return, which showed an adjusted gross income of $85,576, which included unemployment benefits of $17,052 and earned income of $71,345.*fn4 Defendant also argued that, based upon a 2010 paystub from her current employer, plaintiff earns approximately $106,000.
In determining that defendant had failed to show a change in circumstances, the trial court concluded that he remained voluntarily underemployed. At oral argument, defendant admitted he had failed to seek additional part-time employment, even when he was facing the termination of his unemployment benefits, choosing to spend weeks "researching" for his litigation. The court noted that defendant's obligation of $22 per week was "a ridiculously low amount of money" for two children, ages twelve and fourteen:
$22 per week in child support is not enough for your ex-wife to give lunch money to your kids to go to school every day.
It is not enough to buy them a pair of shoes. It's not enough to send them to a movie and allow them to have popcorn and soda. It's not enough to do anything. Maybe to buy a few boxes of cereal. It is de minimis.
The court further observed,
Even if I were to give you the benefit of the income that you provided me that you have earned this year, which is about . . . $23,000, . . . and the unemployment benefits that you have[,] I can almost guarantee you that to run those guidelines, [the support obligation] would be much higher than $22 a week.
The court therefore declined to evaluate whether plaintiff's increase in income constituted prima facie proof of a change in circumstances that could warrant a modification of child support.
In considering a motion judge's decision to deny an application to modify or terminate support obligations, this court reviews for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). The standard of review is highly deferential, given the family court's "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). Specifically, "[e]ach and every motion to modify [a child support] obligation '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.'" Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We discern no abuse of discretion in the trial court's conclusion that it continued to be appropriate to impute $40,000 in income to defendant.
Because a change in circumstances may be based upon an increase in the income of the party receiving support, see Stamberg, supra, 302 N.J. Super. at 42, once the trial court elected to decide defendant's motion on the merits, the court should have applied the Child Support Guidelines, Pressler and Verniero, Current N.J. Court Rules, Appendix 1X to R. 5:6A (2012), to the parties' incomes to determine whether the increase in plaintiff's income would result in a decrease in defendant's support obligation. There is no evidence before this court to support a conclusion that the application of the Guidelines to the parties' income, even as described by defendant, would result in a reduction of his support obligation. Accordingly, we are satisfied that the trial court did not abuse its discretion in denying defendant's motion.
The order denying defendant's motion was entered September 2, 2010. On October 13, 2010, he filed two motions and he appeals from the denial of both these motions.
Defendant acknowledged in his supporting certification that one of these motions, "for Amendment and Correction of the Record," was untimely. The purpose of his motion was to correct the information presented at oral argument regarding the employment of his former classmates in the paralegal studies program. In addition, he stated that he had been able to increase his hours at Target, although he had not obtained full-time status. Defendant argues that the trial court erred in denying this motion. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The second motion defendant filed on October 13, 2010 was "to Correct Child Support COLA." Pursuant to Rule 5:6B(a), the child support amount here was subject to adjustment every two years to reflect the cost of living. Rule 5:6B(d) provides in part:
Before a cost-of-living adjustment is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice. An obligor may contest the adjustment if the obligor's income has not increased at a rate at least equal to the rate of inflation as measured by the Consumer Price Index . . . .
Defendant received a notice of proposed adjustment in 2007. He wrote to the Probation Department, stating his wages had not risen 6%, the rate of the applicable Consumer Price Index (CPI), and submitted copies of his tax returns and paystubs to support his argument. He provided additional information requested by the Probation Department and was successful in contesting the adjustment.
The amount garnished from defendant's wages remained $18 per week until April 10, 2010. In his certification, defendant states that he received an order, dated April 12, 2010, that adjusted his support obligation to "$20/WEEK . . . effective July 6, 2007[.]" The order states that the order was entered upon an application for a COLA for a child support order and that there was "no contest to the application . . . timely filed by either party[.]" Defendant responded to this order by letter dated April 18, 2010. Given the fact that defendant had successfully contested the prior COLA application, there are several striking omissions in this letter. He does not state that he did not receive notice of the proposed adjustment*fn5 or that he had grounds to contest the proposed adjustment to $20. In response to the order, he stated:
I recently received a Civil Action Order, dated 4/12/2010, copy enclosed, notifying me that a COLA has been applied and that the new Child Support Amount will be effective 7/6/2007.
Please correct this date to reflect the current year.
Please contact me should you have any questions or require additional information.
Defendant stated in his certification that he next received a Notice of Cost of Living Adjustment dated April 16, 2010. The Notice stated, in part:
Your COLA is based upon the current child support portion of your order in the amount of $20 WEEKLY. The CPI rate applicable to your case is 3.75. Effective 07/10/2009[,] your child support order will be adjusted to 22 WEEKLY. Before the date your COLA takes effect, you have the right to object to the application of the COLA and to request an administrative review of whether the COLA should apply in your case.
The Notice provided additional instructions on how to object to the application of the COLA, which included the requirement that an administrative review be requested in writing "within 30 days of the date of this notice[.]"
Defendant submitted a letter, dated May 16, 2010, to the Probation Department. He objected to the imposition of a COLA, effective July 6, 2007, on the ground that he had successfully contested the COLA in 2007. He also objected to a COLA being applied as of July 10, 2009 because his earnings had not increased at the CPI rate, but only at the rate of 1.8% since 2004. He asked that the child support payments be returned to the amount in the original order.
In his certification in support of his motion, defendant stated that when he contacted the Probation Department to follow up on his review request, he was told that there was no record of any correspondence from him. He does not state when he received this information. Although his motions to enforce litigant's rights and modify his child support obligation were dated May 29, 2010, he did not include any argument that the COLA increases had been applied erroneously. As a result, his motion to modify child support was viewed as a motion to modify a support obligation of $22 per week because of a change in circumstances. Indeed, he voiced no objection when the court reviewed the COLA increases and identified his present obligation as $22 per week:
THE COURT: When I first reviewed this my initial question to myself . . . is scratching my head somewhat, trying to figure out why someone who's paying $22 a week in child support would want to upset that apple cart.
Why are you trying to have child support reduced from $22 a week for a 13 year old and a 12 year old, if I could ask . . . that question of you?
MR. MECCIA: Yes, Your Honor. Basically it's due to prolonged unemployment on my part. Plaintiff's large increase in income. That running the schedules there would be a reduction.
Defendant's notice of motion to correct the COLA waived oral argument. The order denying his motion states, in pertinent part:
Defendant's motion to correct the child support COLA is denied. COLA increases are mandated by Court rule, as is the obligor's right to dispute the increase. The Defendant's motion lacks merit.
Defendant argues that the trial court erred in not correcting an "obvious" error. We disagree.
Defendant is granted the opportunity to contest a proposed COLA increase, but only if he does so within thirty days of receipt of the notice of proposed adjustment. Further, the grounds for contesting the adjustment are limited.
Pursuant to Rule 5:6B, such contests are limited to situations (1) where an obligor's income has not increased at a rate at least equal to the rate of inflation or (2) where the order itself provides for an alternative periodic cost-of-living adjustment. Otherwise, parties may contest a cost-of-living adjustment or seek a modification of a prior child support order only by showing that such a modification is warranted based upon changed circumstances. [Martin v. Martin, 410 N.J. Super. 1, 4 (Ch. Div. 2009).]
Thus, the only ground available to defendant here was to show his income had not increased at the CPI rate. However, his response to the first proposed adjustment was merely that the date - and not the amount - should be corrected. His April 18 letter did not request a review based upon his income information, even though he knew from prior experience that this was the way to contest a proposed COLA increase.
Defendant's May 16 letter stated that it was "in response to the recent COLA notices dated April 16, 2010 . . . and April 12, 2010 . . . ." The letter was dated exactly thirty days after the April 16 notice of proposed adjustment but more than thirty days after the April 12 order. Since defendant's April 16 letter - written after his garnishment was increased due to the COLA - failed to object to the amount of the adjustment, he did not file a timely objection to the COLA adjustment that increased his obligation to $20 per week.
As noted, the May 16 letter contested the April 16 notice of proposed adjustment on a timely basis. Despite receiving no response, defendant did not ask the court to address the COLA increase in his motion to modify child support that was filed on May 29, 2010 and did not raise this issue at oral argument on August 27, 2010. It was not until October 13, 2010, approximately six weeks after the denial of his motion to modify support and six months after the COLAs affected his garnishment, that defendant first raised the issue of the COLA increase with the court. In our view, defendant's delay in challenging this COLA increase was unreasonable. Moreover, the trial court plainly considered the amount of the obligation, including the COLA, to be barely adequate under the circumstances. We discern no reason to disturb the court's conclusion on this record.
We are further satisfied that the remaining arguments raised by defendant lack sufficient merit to warrant discussion in a written opinion.