August 13, 2013
JOANNE NEWKIRK-SANCHEZ, Plaintiff-Respondent,
CHRISTOPHER K. NEWKIRK, JR., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 16, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-0119-12.
King and Petracca attorneys for appellant (Matthew R. Petracca, on the brief).
Joanne Newkirk-Sanchez, respondent, pro se.
Before Judges Ashrafi and St. John.
In this post-divorce matter, defendant-husband appeals from the Family Part's orders denying his motion to reduce his child support obligation and also sanctioning him $2, 000 in reimbursement of plaintiff-wife's attorney's fees. We affirm.
The parties were married in 2006 and divorced in 2010. They have one child, now six years old. At the time of their divorce, neither was represented by an attorney. They entered into a settlement agreement, documented as handwritten notations that the parties signed and which were incorporated into the judgment of divorce dated December 9, 2010. Implicitly, the notations contemplated that wife would be the parent of primary residential custody, and they provided that husband would have parenting time with the child on alternate weekends. They also stated that husband would pay $275 in biweekly child support. At the time of entry of the divorce judgment, a child support worksheet was prepared, and it reflected the husband's obligation under the guidelines would have been $34 per week. The parties' agreement was a deviation from that calculation. We have not been provided a transcript of the divorce hearing and must therefore assume that husband did not object or raise any questions at that time about the child support agreement.
Soon after the divorce judgment was entered, husband began filing a series of applications to the court to alter the parenting time arrangement and the child support order. By orders dated August 19, 2011; October 21, 2011; and October 28, 2011, the Family Part granted some of husband's requests, but it denied any substantial change in the parenting arrangement or in child support. The court referred the parties to mediation to iron out some details of the parenting arrangement. On January 10, 2012, husband and wife signed an agreement to modify the parenting time by also granting husband one weekday overnight with the child every other week and by fixing a schedule for holidays and other special dates. The modified parenting plan was approved by the Family Part in a consent order dated February 2, 2012.
Five months later, on July 2, 2012, husband filed yet another motion, this time by counsel, again to modify the parenting arrangement and to reduce his child support obligation. Wife filed a cross-motion, also by counsel. The court decided the motions by two separate orders, an order of July 27, 2012, granting some items of minor relief to husbandbut also denying without prejudice the most significant aspects of his motion, another change in the parenting arrangement and a reduction of his child support obligation. By order dated August 24, 2012, the court ruled on wife's cross-motion. Pertinent to this appeal, the court sanctioned husband $2, 000, payable in installments, for filing a "frivolous and harassing" motion.
In his appeal before us, husband contends that he was entitled to a review and modification of his child support obligation because of changed circumstances pursuant to Lepis v. Lepis, 83 N.J. 139 (1980). He claims that wife had changed her employment and thus he had a right to obtain financial information from her to determine her current income. He also contends that he had additional parenting time with the child as a result of the January 2012 mediation agreement, thus altering each parent's financial responsibility for the child. Husband argues further that he was not represented by counsel at the time of the divorce and did not understand that his agreement to pay $275 in child support every two weeks was a deviation from the child support guidelines. Finally, he argues that the $2, 000 sanction is unjust because, as a pro se litigant in his prior motions, he was unable "to navigate" through the court's procedures.
Child support is for the benefit of the child, not the parent. Ordukaya v. Brown, 357 N.J.Super. 231, 241 (App. Div. 2003) (quoting Monmouth Cnty. Div. of Soc. Srvcs. for D.M. v. G.D.M., 308 N.J.Super. 83, 95 (Ch. Div. 1997)). After the court determines the parties' actual or imputed incomes, it must compute child support in accordance with those determinations under the Child Support Guidelines. See Pressler & Verniero, Current N.J. Court Rules, App'x IX to R. 5:6A (2013). However, nothing in the guidelines or the law prevents a parent from paying more child support than the guidelines require.
Child support orders are statutorily subject to periodic review by the court. N.J.S.A. 2A:17-56.9a provides in pertinent part:
At least once every three years, unless the State has developed an automated cost-of-living adjustment program for child support payments, the parties subject to a Title IV-D support order shall be provided notice of their right to request a review . . . Such reviews shall take into account any changes in the financial situation or related circumstances of both parties and whether the order of child support is in full compliance with the child support guidelines.
Rule 5:6B provides for cost-of-living adjustment of child support orders every two years. Therefore, a party to a child support order does not have an automatic right to judicial review of child support every three years. But either party may seek modification by showing changed circumstances in accordance with Lepis, supra, 83 N.J. at 157. See also R. 5:6B(d) ("A cost of living adjustment shall not impair the right of either parent to apply . . . to the court for a modification of support provisions of the order or judgment based on changed circumstances.").
In general, we apply an abuse of discretion standard of review to the Family Part's decision on whether a change in circumstances under Lepis warrants modification of support payments. See Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J.Super. 17, 21 (App. Div. 2006). An order of support may "be modified upon a showing of substantial, non-temporary changes in ability to support oneself or pay support." Gordon v. Rozenwald, 380 N.J.Super. 55, 67-68 (App. Div. 2005). A change in a parent's income is recognized as a change in circumstance affecting support obligations. See Lepis, supra, 83 N.J. at 151; Ramhorst v. Ramhorst,
138 N.J.Eq. 523, 525 (E. & A. 1946); Lissner v. Marburger, 394 N.J.Super. 393, 399 (Ch. Div. 2007).
Nevertheless, the Family Part may deny a motion to modify support if an order was recently filed determining the amount. See Donnelly v. Donnelly, 405 N.J.Super. 117, 128 (App. Div. 2009) (Lepis motion was properly denied following similar motion filed nine months earlier). When deciding if a child support order should be modified, the Family Part has "the utmost leeway and flexibility in determining what is just and equitable[, ]" whether the order is a result of the court's ruling in a contested case or an agreement of the parties. Lepis, supra, 83 N.J. at 147 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).
Here, the Family Part concluded that husband had not shown a prima facie case of changed circumstances to warrant a reduction in child support, or to require wife to produce documentation establishing her income. Discovery of the other party's financial information is not automatically available for post-judgment motions. Leave of the court is required. Welch v. Welch, 401 N.J.Super. 438, 444 (Ch. Div. 2008); see R. 5:5-1(d).
In this case, husband alleged, and wife acknowledged, that she had a new employer. But husband made no showing of a difference in the type of employment wife had or a significant increase in her income. In fact, husband referred to wife's claim that she was working fewer hours as evidence that she was under-employed. Wife alleged, however, that she was forced to reduce her work time from forty to thirty-five hours per week because husband filed repetitive motions and orders to show cause, and she had to appear in court many times during her normal work schedule. Her employer accommodated her personal situation.
The Family Part declined, without prejudice, to order wife to produce financial information to verify her income less than two years after the divorce judgment had been entered with an agreement on child support. Although husband may be entitled to a hearing in the future to determine the current income of each parent, he agreed in December 2010 to pay child support in an amount greater than the guidelines required, and his prior motion to modify that agreement was premature. Having been denied that relief once, another motion only five months later was also too soon for the court to reconsider the parties' financial circumstances. We conclude the Family Part did not abuse its discretion in declining to order wife to produce financial information relevant to child support so soon after the parties' divorce and voluntary agreement. We leave it to the Family Part to determine an appropriate time for review of the parents' incomes and possible modification of child support.
Husband also appeals from the court's award of $2, 000 in attorney's fees reimbursable to wife. "[T]he award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court." Guglielmo v. Guglielmo, 253 N.J.Super. 531, 544-45 (App. Div. 1992); see also Gotlib v. Gotlib, 399 N.J.Super. 295, 314-15 (App. Div. 2008) (application of R. 5:3-5(c) and decision to award counsel fees rests within the court's sound discretion).
Because the court had recently ruled on husband's similar applications to modify parenting time and reduce child support, it viewed another motion requesting the same relief to be frivolous and harassing to wife. We find no abuse of the Family Part's discretionary authority to award attorney's fees as a sanction against husband. See Eaton v. Grau, 368 N.J.Super. 215, 225 (App. Div. 2004).