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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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. ...