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Sodora v. Scarpone

Superior Court of New Jersey, Appellate Division

August 7, 2013

CAROLYN SODORA, f/k/a CAROLYN SCARPONE, Plaintiff-Respondent/ Cross-Appellant,
v.
SCOTT SCARPONE, Defendant-Appellant/ Cross-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 10, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-52-09.

Michael P. De Marco argued the cause for appellant/cross-respondent (De Marco & De Marco, attorneys; Mr. De Marco, on the briefs).

Andrea Perry argued the cause for respondent/cross-appellant (Gomperts, Penza & McDermott, LLC, attorneys; Ms. Perry, of counsel and on the briefs).

Before Judges Koblitz and Accurso.

PER CURIAM.

Defendant Scott Scarpone appeals from a June 27, 2012 post-judgment order denying reconsideration of prior orders denying his requests to reduce his alimony and child support obligations and adjust the parenting schedule. His former wife, plaintiff Carolyn Sodora, cross-appeals from the denial of her cross-motion to reduce certain arrearages to judgment and to compel defendant to pay his share of their daughter's childcare costs and his support arrears through probation. We affirm.

The parties were married in 2000 and divorced in 2009. They have a ten-year-old daughter. Defendant is a union carpenter and plaintiff did not work outside the home for most of the parties' marriage. They agreed in the property settlement agreement (PSA) incorporated in their judgment of divorce that defendant would pay plaintiff limited duration alimony for five years of $365 per week and child support of $200 per week commencing upon the sale of the marital home. In the interim, the parties agreed that they would abide by an October 10, 2008 pendente lite order requiring defendant to pay all of plaintiff's schedule A and B expenses with the exception of her cellphone and internet charges, up to $200 per month for fuel and oil for plaintiff's car, and $900 per month in unallocated support.

Defendant filed his first motion to reduce or eliminate his alimony and child support six months after entry of the judgment of divorce, prompting plaintiff's cross-motion to enforce litigant's rights. The parties have engaged in at least five more rounds of motions since then, each seeking basically the same relief. A central problem was that the house did not sell for almost two years. Plaintiff claimed that defendant simply stopped paying unallocated support in January 2010, six months after the divorce, leaving her in difficult financial straits. Plaintiff was arranging to attend school to train as a medical assistant and was without wages to make up the shortfall. Defendant claimed that he could not pay all of the expenses associated with maintaining the marital residence in which plaintiff lived for two years after the divorce, as well as alimony and child support.

Following the third round of motions, the Family Part entered an order on April 27, 2011 denying without prejudice plaintiff's request for $14, 300 in support arrears and defendant's request to reduce his alimony and child support retroactive to a year before the parties' divorce and for credits against his support obligations for monies paid toward plaintiff's schedule A and B expenses. The court also denied defendant's request to reduce the alimony term from five years to two, but allowed defendant relief by modifying the start date of his alimony obligation. Defendant was ordered to continue to pay the costs associated with the house pursuant to the PSA, but those costs would be credited toward his alimony obligation beginning on March 3, 2011, the filing date of his motion.

Following the fourth round of motions, the Family Part entered an order in December 2011, again denying defendant's request for credits against his support obligations, denying without prejudice plaintiff's request for $19, 200 in support arrears but granting her request for reimbursements totaling $7, 093.44 for payments she made toward expenses relating to the house. The court also ordered both parties not to interfere in the other's parenting time or make disparaging comments about the other to their daughter. Both parties were directed to allow daily telephone contact with the child when she was with the other parent and to share transportation equally on all days but for defendant's weekend overnight, when he would be responsible for transportation.

Plaintiff moved for reconsideration of the denial of her motion for support arrears and related relief. Defendant cross-moved, again seeking credits against his support obligations for housing expenses he was previously ordered to pay. Defendant also sought alternate weekend parenting time and again sought to have plaintiff share transportation for his weekend parenting time.

The court granted plaintiff's motion for reconsideration on March 19, 2012, finding it had erred in failing to grant plaintiff's request to find defendant in arrears of his support payments. The court entered an order finding defendant in violation of litigant's rights for his failure to pay support, fixing his arrears at $20, 485 to be paid at a rate of $200 per week through wage garnishment, ordering him to make all future alimony and child support payments through Probation, and granting plaintiff her fees for the motion.

The court denied defendant's request for credits against sums he was ordered to reimburse plaintiff in the December 9, 2011 order, denied his request to change the parenting time schedule as defendant had not disputed that he was not exercising all the time to which he was already entitled, denied his request for an order enjoining plaintiff from interfering with his parenting time as not supported by the record, and denied his request for fees.

Defendant moved to reconsider that order out of time and again sought to reduce his alimony and child support obligation, claiming that he had recently become unemployed. Plaintiff cross-moved for an order reducing the $7, 093.44 defendant was ordered to pay plaintiff in December to judgment, along with the counsel fees awarded on the prior motion. She also sought to have defendant's fifty percent share of the childcare costs for January through April added to his child support arrears, that he pay fifty percent of summer camp costs, and that he provide proof of life insurance in accordance with the PSA. The court denied all relief without prejudice on June 27, 2012, except to order defendant to pay $3, 827.50 in plaintiff's counsel fees for the prior motion and to find defendant in violation of litigant's rights for his failure to pay the $7, 093.44 ordered by the court on December 9, 2011. This is the order from which the parties appeal.

The court denied defendant's motion to reconsider the court's order of March 19, 2012, which reconsidered its order of December 9, 2011, including his request to adjust the parenting time schedule, because it was filed out of time. The court denied defendant's motion to reduce his alimony and child support, this one based on recent unemployment, because defendant's unemployment was so recent he had yet to qualify for unemployment benefits. Further, the court found that his arrears of $22, 695 made clear that defendant was not paying his support when he was employed.

The court noted that defendant did not dispute that he had failed to reimburse plaintiff the $7, 093.44 he was previously ordered to pay her, but instead "refutes that he owes the expenses . . . because, as stated in his motion for reconsideration, the court erroneously ordered him to pay them." Indeed, defendant was ordered to pay those sums in December 2011. He objected to them in the subsequent motion and was again ordered to pay them as part of the March 19, 2012 order. Accordingly, the court granted plaintiff's motion finding defendant in violation of litigant's rights for his failure to pay the $7, 093.44 as he had been repeatedly ordered.

The court denied plaintiff's request that defendant pay his share of the daycare costs and summer camp because the PSA provided that the parties would cooperate in defraying such expenses by allowing defendant to care for their daughter to the extent his schedule allowed. Defendant claimed that he had offered to care for the child to defray these expenses and been turned down. Accordingly, the court denied the motion without prejudice and directed the parties to cooperate to reduce the costs as they agreed to do in their PSA. The court denied counsel fees to both parties in light of their limited success on their motions and the difficult financial circumstances each was facing.

Defendant's argument that the court erred in denying his motion to reduce his alimony and child support based on his recent unemployment does not warrant extended discussion. R. 2:11-3(e)(1)(E). A modification of support obligations based on changed circumstances is committed to the trial court's sound discretion. N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 145 (1980); Storey v. Storey, 373 N.J.Super. 464, 470 (App. Div. 2004). Temporary changed circumstances, such as temporary unemployment, do not warrant modification. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). Further, we agree with the several judges that have denied defendant's many requests to reduce the support obligations he voluntarily undertook in the PSA. Matrimonial agreements relating to alimony and support, "which are fair and just, " are contracts enforceable in equity and are presumed valid. Petersen v. Petersen, 85 N.J. 638, 642 (1981). "As a general rule, courts should enforce contracts as the parties intended." Sachau v. Sachau, 206 N.J. 1, 5 (2011). Defendant has offered nothing entitling him to relief from his voluntarily assumed obligations.

We likewise do not find that the court erred in denying defendant's motion to reconsider the court's March 19, 2012 order reconsidering its order of December 9, 2011, or declining to entertain oral argument on the motion. Dissatisfaction with a judge's decision is not a basis for reconsideration. D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div. 1990). There was no new information presented to the trial court on defendant's most recent motion for reconsideration. "[M]otion practice must come to an end at some point." Ibid. Further, Rule 5:5-4 permits the court discretion in determining whether to honor a request for oral argument where the motion is repetitive, or based on unsubstantiated allegations. Filippone v. Lee, 304 N.J.Super. 301, 306 (App. Div. 1997). Because of the fashion in which these motions were made, defendant was simultaneously contending that he had become recently unemployed and was available to care for his daughter to defray childcare costs and complaining that plaintiff's move to Brick constituted changed circumstances such that a change in the parties' parenting time schedule was necessary. We do not find under these circumstances that the court's denial without prejudice of the motion to adjust the parties' parenting time was an abuse of discretion.

We likewise reject plaintiff's arguments on her cross-appeal. The PSA commits the parties to cooperating with one another to allow defendant the opportunity to assume childcare responsibilities to defray childcare costs. The parties obviously disagreed on whether plaintiff had afforded defendant those opportunities. In the absence of any proof, the court denied the motion without prejudice and directed the parties to cooperate in effecting this provision of their PSA. We assume, as did the trial court, that any future such motions would be adequately supported with proofs in the form of e-mails or other evidence of the parties' efforts in that regard.

Finally, we decline plaintiff's request that we exercise our original jurisdiction and enter judgments against defendant for the $7, 093.44 defendant was first ordered to pay in December 2011 and the $3, 827.50 counsel fee defendant was ordered to pay in the June 27, 2012 order. A trial court has considerable discretion to choose the manner by which to compel compliance with its orders. Bd. of Educ. of Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J.Super. 501, 509 (Ch. Div. 2001). A court need not enter a judgment where another adequate remedy may be available. Rego Indus., Inc. v. Am. Modern Metals Corp., 91 N.J.Super. 447, 453 (App. Div. 1966). The judge's order was entered without prejudice. We have no doubt that continued non-compliance with orders will be met with harsher sanctions as circumstances dictate in the Family Part's sound discretion.

Affirmed.


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