NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 24, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2578-04.
Joseph Croghan, appellant, argued the cause pro se.
Judith L. Rosenthal argued the cause for respondent.
Before Judges Axelrad, Sapp-Peterson and Haas.
In this opinion we address several post-judgment matrimonial orders in two appeals by defendant Joseph Croghan that were calendared back-to-back. The first appeal (A-2389-11T4) involves portions of an October 21, 2011 order that denied defendant's motion to modify his alimony and child support obligations based on changed circumstances, terminated his support obligation for his daughter retroactive to the June 27, 2011 filing date of his cross-motion instead of the August 31, 2010 court-ordered emancipation date, directed him to withdraw funds from his retirement account to pay outstanding financial obligations, awarded plaintiff Kathleen Croghan a $2500 counsel fee, and a December 20, 2011 order that denied reconsideration and awarded another $2500 counsel fee to plaintiff.
The second appeal (A-5590-11T4) involves a May 15, 2012 order allocating a $14, 000 payment to alimony and child support arrears rather than just to child support arrears and future child support payments as requested by defendant, awarding plaintiff a $1402.20 counsel fee to plaintiff, and denying his cross-motion involving issues pertaining to the parties' son.
We affirm both appeals.
The parties have a litigious history. We recite only those facts and procedural history relevant to these appeals. We further note that as detailed in plaintiff's brief, defendant included in his brief and appendix significant facts and documentation that were not provided to the trial court and are thus inappropriate for consideration on appeal. R. 2:5-4. Accordingly, much of our recitation of defendant's submissions to and the facts and evidence before the trial court in connection with the challenged orders has been gleaned from the July 14, 2011 transcript, the court's opinions, and plaintiff's certifications in opposition to defendant's motions.
The parties were married in l982 and divorced in 2005. Their daughter was born in l988 and their son was born in l995. Pursuant to the final judgment of divorce (FJD), defendant was obligated to pay plaintiff $2500 per month in permanent alimony. The parties were granted joint legal custody of both children, with plaintiff being the parent of primary residence. Defendant was obligated to pay her $1150 per month in child support, with periodic cost of living increases through each child's emancipation.
On June 14, 2010, defendant filed a motion that sought, in part, to have their daughter declared emancipated effective May 14, 2010, the date of her college graduation, and to "recalculate" child support to reflect only their son. On September 2, 2010, Judge James Troiano entered an order that declared the parties' daughter emancipated as of August 31, 2010. He denied defendant's request to reduce alimony without prejudice based on a failure of proof. The order further required the parties to "exchange income information, including, but not limited to an updated case information statement [CIS], 2009 W-2s, 1099s, tax returns and the parties' three most recent pay stubs within 30 days of the date of this Order for the purposes of recalculating child support for [their son], the remaining unemancipated child."
On May 26, 2011, plaintiff filed a motion to enforce litigant's rights regarding a September 2, 2010 order, in part compelling defendant to pay alimony and child support arrearages of about $5000, reimburse her for insurance premiums and unreimbursed medical expenses, provide a current CIS, and for counsel fees. On June 27, 2011, defendant, again represented by counsel, filed opposition and a cross-motion seeking, in part, to reduce child support due to the emancipation of the parties' daughter, to modify alimony, and to require plaintiff to file an updated CIS.
On July 14, 2011, Judge Troiano took testimony from the parties, heard oral argument, ruled on several issues, and reserved decision on others. He directed the parties to submit supplemental financial information to him. By letter of July 22, 2011, plaintiff's counsel complied, submitting plaintiff's July 2011 CIS, 2009 and 2010 federal income tax returns, July 2005 CIS with page one of her federal income tax return; documentation regarding medical treatment and expenses relating to their son; and defendant's March 2005 CIS. There is nothing in the record reflecting that defendant submitted his financial information to the court or provided anything other than one tax return to plaintiff.
On October 21, 2011, Judge Troiano issued a letter opinion and order that is the subject of the first appeal. He denied defendant's cross-motion except to the extent he provided that if defendant's child support for the parties' son were reduced, he only would be entitled to a credit as of June 27, 2011. He further provided that:
Unless the parties can reach an agreement as to the amount of child support for their son, then for purposes of determining income for defendant, it shall be a result of annualizing the income he received until such time as he left his employment with Brinks. Plaintiff's income shall be as set forth in her latest [CIS] which the court has found to be consistent with her past earnings. The parties shall utilize the Child Support Guidelines and defendant shall not receive any credit for overnight parenting time unless he is presenting exercising same with [his son].
The judge granted plaintiff's motion to enforce litigant's rights and directed defendant to withdraw funds from his retirement account to pay plaintiff $25, 097.79, comprising $20, 712 for alimony and child support arrearages, $1, 357.79 for their son's unreimbursed medical expenses, $1482 for other expenses not at issue in this appeal, and $2500 toward plaintiff's counsel fees on the motions, and to create "a temporary fund to insure future payments for six months[.]"
Defense counsel moved for reconsideration. By order of December 20, 2011, Judge Troiano denied the motion and granted plaintiff's request for counsel fees for defending the motion, awarding her another $2500. This appeal ensued.
On April 1, 1993, defendant and three friends formed an equal partnership, the Retirement & Recreational Club (RRC), "to conduct the business of buying, selling and leasing real property[, ]" plus "contracting work" for hire. The partnership agreement was the "umbrella agreement to govern" other entities that its members had formed or would form to conduct such activities. RRC delegated the management of all properties in which it or related entities held an interest to ERA Statewide Realty (ERA).
As of April 20, 2004, defendant requested an immediate buyout of his interest in the RRC, and RRC estimated his buy-out payment at $35, 000. The buyout did not affect the status of properties held in the name of defendant, Viking Property Development (Viking), or Kroner Contracting (Kroner); as per the agreement, those properties would be kept in their respective names until the remaining partners chose to sell those assets. In his July 26, 2004 case information statement, defendant listed the following separate business partnerships: Kroner, Viking, Superior Properties (Superior), and "Rental Properties, " noting that as of April 20, 2004, he "[s]old interest in operation to partners based on previous [buyout] agreement to raise cash to live when forced out of marital home[.]"
At the August 15, 2005 hearing during which the parties agreed to the terms of the divorce judgment, defendant testified that he was a licensed C.P.A., but he was unsure whether he had maintained the license. He further stated that he was presently unemployed, but his typical annual income was approximately $120, 000, which excluded certain unusual job bonuses and other items that he had received in 2004. Nowhere in the record, however, did defendant represent that the alimony and support payments were conditioned on resumption of this income level.
Pertinent to this appeal, the FJD provided that defendant retained whatever right, title, and interest he held in the partnerships contained within the RRC (Kroner, Superior, and Viking). It further granted plaintiff full ownership of defendant's accounting practice.
Defendant married Donalyn Croghan on November 19, 2005. They were divorced on October 27, 2011. Defendant was granted sole "interest in his various retirement accounts and pensions" as well as RRC, and was not obligated to pay her alimony.
By order of January 31, 2008, defendant's accounting license was suspended for failing to provide proof of completion of continuing professional education and documentation of employment through December 31, 2005. In response, defendant provided his work history through his current position, and advised that he did not use his CPA certificate as a source of income.
As set forth in Judge Troiano's letter opinion of October 21, 2011, defendant certified in his August 2006 CIS that he was employed by Driscoll Foods and earning about $125, 000 annually. "Apparently, he was still a principal in Kroner." His social security statements reflected Medicare wages in 2007 of about $123, 700. In 2009, defendant and his wife Donalyn reported wages of about $175, 000, "business income through Kroner, " and rental income. When the court emancipated the parties' daughter in September 2010, defendant was not employed. The court, however, denied defendant's motion to reduce alimony then noting, in part, defendant's reported ownership of ...