AIMEE E. DeROSA, Plaintiff-Respondent,
ALEXANDER G. DeROSA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1529-07B.
Drazin and Warshaw, P.C., attorneys for appellant (Vincent L. Stripto, on the brief).
Aimee E. DeRosa, respondent pro se.
Before Judges Grall, Koblitz and Accurso.
Defendant, Alexander G. DeRosa, appeals from the November 3, 2011 denial of a motion to reduce alimony and child support. The order was entered without oral argument, discovery, or a hearing. Because we conclude that defendant made a prima facie showing of changed circumstances, we reverse and remand for the court to follow the procedures set forth in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980).
The parties were married on September 27, 1986, and divorced on August 11, 2008. They have three children, now 26, 23, and 18 years of age, only the eldest of whom has been emancipated. The judgment of divorce incorporated the parties' property settlement agreement (PSA). The PSA required defendant to pay plaintiff $750 per week permanent alimony and $365 per week child support based upon defendant's projected gross annual income of $160, 000 and plaintiff's imputed income of $45, 000.Defendant's child support obligation was to be almost immediately reduced to $307 per week on September 1, 2008, when their two eldest children would be living away at college.
Defendant is the self-employed owner of a lawn sprinkler installation business he started the same year the parties were married. The business has been maintained as a sole-proprietorship. At the time of the divorce, the parties jointly employed a forensic accountant to value the business for purposes of equitable distribution and prepare a cash flow analysis for defendant from 2004 through 2006 and projected cash flow for 2007. The accountant calculated defendant's 2006 pretax income from the business as $169, 525, and after-tax income as $143, 430 on gross sales of $748, 255. She projected defendant's 2007 pre-tax income as $160, 700, and after-tax income as $136, 100. Defendant's alimony and child support obligation was premised on defendant's projected 2007 pre-tax income of $160, 000.
Prior to the motion at issue here, defendant had successfully moved pro se to have the couple's eldest child declared emancipated as of February 9, 2011. Despite that, however, the court declined to recalculate child support at that time because neither party had submitted the necessary case information statements, tax returns, and pay stubs.
In October 2011, defendant, now represented by counsel, filed a motion to reduce his alimony and recalculate child support retroactive to the emancipation order. Defendant contended that the revenues from his business, which had previously moved up steadily, peaked in 2006. He claimed that the bulk of his business was based on the installation of sprinkler systems for residential developers and that the slowdown in new home construction had greatly affected his sales. Defendant presented several years of recent tax returns showing that his gross sales had declined from $748, 255 in 2006 to $273, 069 in 2010, a decrease of well over fifty percent. He certified that his pre-tax income for 2011 averaged $7647 per month, and he expected to earn less than $100, 000 for the year. Defendant claimed that he owed the Internal Revenue Service approximately $75, 000 in back taxes, and that he could not continue to pay alimony and child support based on his former income.
Plaintiff, self-represented, cross-moved to increase alimony and child support and for other ancillary relief not at issue on this appeal. She acknowledged defendant's "financial situation" and tax debt and described efforts she had made to assist in collecting his outstanding receivables and refinance her home to ease his financial woes. She had even given defendant back her engagement and wedding rings to help with "the financial dilemma." She also, however, detailed her own financial hardships and the children's basic needs that were going unmet. She asserted that she had sought employment but, having not worked as a nurse for twenty years, could not become employed as an R.N. without taking refresher courses she could not afford.
Although defendant had requested oral argument, the judge denied his motion on the papers. Upon comparing defendant's case information statement (CIS) from 2007 to the one ...