August 28, 2013
KRISTINE L. FUSCA, Plaintiff-Respondent,
RALPH FUSCA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. FM-18-444-08.
Fleischer & Fleischer, L.L.C., attorneys for appellant (Richard E. Fleischer, on the brief).
Diamond & Diamond, P.A., attorneys for respondent (Richard S. Diamond and Lynn M. Matits, on the brief).
Before Judges Hayden and Hoffman.
In this post-judgment matrimonial matter, defendant Ralph Fusca appeals from the May 4, 2012 Family Part order denying his application for a downward modification of alimony and child support and granting plaintiff Kristine L. Fusca's application for counsel fees. We remand to the trial court solely for the purpose of entering an order correcting the calculation of the counsel fee award. In all other aspects, we affirm.
The parties were married in March 2001 and have four children together. Plaintiff also had a child who lived with the parties and was supported by defendant.
Plaintiff filed a complaint for divorce on October 15, 2007. After a three-day trial, the trial judge issued a judgment of divorce and a lengthy written opinion on September 30, 2011. He made extensive factual findings in support of his decision to award plaintiff $336 per week in child support, $750 per week in limited duration alimony for four years, and $220 per week in child care costs.
In determining support, the trial judge imputed $30, 000 in annual income to plaintiff, who had been employed as a hairdresser but had not worked outside the home during the marriage, and $150, 000 to defendant, who was employed in banking and finance. The judge found that from 1999 to 2008, defendant had been employed as a Vice President at a subsidiary of the Bank of New York Mellon, and earned in $176, 769 in 2007, $195, 346.09 in 2008, and $205, 793 in 2009. The judge found it "troubling" that defendant had represented in pendente lite applications filed in 2008 that his income in that year would total $99, 996, when defendant ultimately earned almost double that amount.
In January 2009, defendant was terminated from his position. In a pendente lite application filed in 2009, defendant represented that his severance pay "would run out shortly, " and that he did not anticipate earning more than $92, 000 that year. In June 2009, just before his severance pay ended, defendant was "rehired" at another subsidiary of the Bank of New York. Defendant claimed, in another pendente lite application, that his new salary "would be dramatically less." His gross income in 2009 ultimately totaled $205, 000 in salary, unemployment compensation, and severance. Despite his increased income, defendant failed to meet his pendente lite support obligation of $6010 per month, and continued to accrue arrears.
During the divorce trial in March 2011, the trial judge found, defendant failed to present a "true picture of his income" because he focused on his base salary, which averaged $83, 262, and ignored his bonus compensation, which doubled that amount. Moreover, the trial judge noted that defendant had been "manipulating his tax exemptions" by reducing his exemption from twelve to zero, contributing to pre-tax deductions, and maximizing his pension deductions to "reduce his cash flow in a manner that makes it difficult or impossible for Family Support Services to collect the court ordered support."
Additionally, although defendant claimed he had been actively seeking more lucrative employment, the trial judge observed that defendant "never produced during discovery or at trial any documentation demonstrating his efforts to find a job during this time frame." With regard to defendant's efforts to find employment before June 2009, and to find higher-paying employment after June 2009, the judge found:
Other than [defendant's] bald assertions at trial as to his "good faith efforts" at finding replacement employment commensurate with his prior history of employment no evidence was presented to the Court to verify same. When this is considered along with the largely unexplained lack of paperwork as to why [defendant] was terminated from his employment and then rehired by what appears to be the same or related employer casts doubt and credibility issues upon [defendant].
As a result, the judge found it was appropriate to impute, for purposes of calculating alimony and child support, income of $150, 000 per year. Defendant did not file an appeal from the final judgment of divorce entered on September 30, 2011.
Instead, on March 16, 2012, less than six months after entry of the final judgment, defendant filed a post-judgment motion to reduce or eliminate his alimony obligation, and to reduce his child support obligations. In his motion papers, defendant maintained that his salary in 2010 was $81, 000 and in 2011 was $82, 500. He contended that, after taxes, his net disposable income in 2011 was $69, 814, from which he was required to pay $60, 738.48 in court-ordered child support, alimony, and health and life insurance. He maintained that he could not satisfy his support obligations on his current income, and despite the fact that he worked with several recruiters, has been unable to find a higher-paying position.
Defendant attached to his certification copies of emails, dated February 12 and 13, 2012, sent to twenty-nine different recruiters. He also attached an email dated February 10, 2012, from Rockwood Search Associates, stating that "[u]nfortunately, with the current state of the market, I don't have any positions for someone with your qualifications and work experience that can come close to your previous compensation."
Plaintiff filed a cross-motion in response, opposing the motion and requesting counsel fees, support arrears of $14, 195.86, and other relief.
On May 4, 2012, a different Family Part judge issued an order denying defendant's motion, and in her statement of reasons wrote:
At the time the Judgment was entered, defendant was employed in the same position, he [was then] earning the same, or less, money than he is presently making. The court considered that income, along with . . . defendant's regular non-compliance with the discovery orders . . . and his habitual misrepresentations of his actual income, in deciding to impute income to defendant . . . .
If defendant did not agree with the terms of the judgment as written, recourse would have been a motion for reconsideration or appeal. This court will not act as a sort of alternative appellate division as defendant apparently is seeking to modify the Judgment of Divorce which he did not agree with. The court does not find significant and non-temporary changed circumstances which were not considered by the trial court in making its determination at the time of the Judgment of Divorce, and that decision shall therefore not be modified at this time.
The judge granted plaintiff's cross-motion for $3050 in counsel fees, both as a "sanction" for defendant's violation of the support orders pursuant to Rule 5:3-7(b) and his failure to attach a copy of the trial court's opinion to his application as required by Rule 5:5-4,  and as a result of defendant's "bad faith, " under Rule 5:3-5(c), causing plaintiff to "unnecessarily incur counsel fees in responding to the motion." This appeal followed.
Defendant raises the following contentions for our consideration:
POINT I. WHETHER THE MOTION COURT BASED ITS DECISION, TO DENY ANY REDUCTION IN THE DEFENDANT'S SUPPORT OBLIGATIONS, ON AN INCORRECT VIEW OF THE LAW RELATING TO IMPUTED INCOME AND POST-JUDGMENT CHANGES IN CIRCUMSTANCES.
POINT II. WHETHER THE MOTION COURT'S REFUSAL TO GRANT ANY REDUCTION IN THE DEFENDANT'S SUPPORT OBLIGATIONS WAS AN ABUSE OF DISCRETION, ON THE FACTS OF THIS CASE.
POINT III. WHETHER THE MOTION COURT'S AWARD OF ATTORNEYS' FEES, AS A SANCTION AGAINST THE DEFENDANT, WAS AN ABUSE OF DISCRETION.
POINT IV. WHETHER THE DECISION OF THE MOTION JUDGE REFLECTS SUCH ANIMUS AGAINST THE DEFENDANT AS TO REQUIRE ASSIGNMENT TO A DIFFERENT JUDGE IN THE EVENT OF A REMAND.
Alimony and child support orders are subject to review and modification upon a showing of "changed circumstances." N.J.S.A. 2A:34-23; Crews v. Crews, 164 N.J. 11, 24 (2000) (quoting Lepis v. Lepis, 83 N.J. 139, 146 (1980)). The party seeking to modify an existing support obligation "has the burden of showing such 'changed circumstances' as would warrant relief . . . ." Lepis, supra, 83 N.J. at 157.
A significant decrease in a supporting spouse's income is recognized as a changed circumstance, but modification is not warranted if the change is only temporary. Innes v. Innes, 117 N.J. 496, 504 (1990). There is "no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation." Larbig v. Larbig, 384 N.J.Super. 17, 23 (App. Div. 2006). "[S]uch matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented . . . ." Ibid.
Further, as in this case, for purposes of determining a support obligation, the court can impute income to a party who is voluntarily underemployed. Caplan v. Caplan, 182 N.J. 250, 266-70 (2005). Current earnings need not be viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228
N.J.Super. 346, 354 (App. Div. 1988) (citation omitted), certif. denied, 114 N.J. 505 (1989). Defendant did not appeal the divorce judgment imputing annual income of $150, 000 to him and we have no basis to disturb that finding.
We review the judge's decision on a motion to reduce child support or alimony obligations for abuse of discretion. Innes, supra, 117 N.J. at 504. Additionally, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Having carefully reviewed the record in light of these contentions and the applicable law, we conclude that the record supports the judge's holding that defendant did not make a prima facie case of changed circumstances. At the time of the motion, defendant was employed by the same company, in the same position, at a slightly increased base salary, as he had been at trial when the trial judge imputed $150, 000 in income to him. Defendant's reliance on Gonzalez-Posse v. Ricciardulli, 410
N.J.Super. 340 (App. Div. 2009), is misplaced. Gonzalez-Posse is entirely distinguishable because in that case the defendant received a reduction in his support obligations based on a post-divorce — not pre-divorce — forced departure from this country and a corresponding decrease in earnings. Id. at 347.
Defendant has also failed to show that any reduction in earnings since 2009 has become permanent, that he has been unable to find employment to match the income imputed to him, or that he has undertaken a well-documented extensive job search to secure higher paying employment. The timing of defendant's motion, filed just six months after entry of the final judgment of divorce, certainly supports that conclusion. See Larbig, supra, 384
N.J.Super. at 19 (affirming denial of request to modify support filed twenty months after entry of final judgment); Donnelly v. Donnelly, 405
N.J.Super. 117, 127-28 (App. Div. 2009) (noting that the court should focus on length of time since the last milepost in post-judgment proceedings).
Defendant also challenges the judge's award of counsel fees and costs to plaintiff. A judge in a matrimonial action may award a party reasonable attorney's fees and costs, and in making that determination "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. See R. 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court, " Addesa v. Addesa, 392 N.J.Super. 58, 78 (App. Div. 2007), and will be disturbed "only on the 'rarest occasion, ' and then only because of clear abuse of discretion." Strahan v. Strahan, 402
N.J.Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
For purposes of awarding counsel fees, bad faith relates to the party's conduct during the litigation. Mani v. Mani, 183 N.J. 70, 95 (2005). The purpose of an award of fees against a "bad faith" litigant "is to protect the innocent party from unnecessary costs . . . ." Yueh v. Yueh, 329
N.J.Super. 447, 461 (App. Div. 2000).
We are satisfied that the court properly applied the factors set forth in Rule 5:3-5(c) and did not abuse its discretion in awarding counsel fees and costs to plaintiff both because defendant acted in bad faith in this litigation and as a sanction under Rule 5:3-7(b) for defendant's violation of the support orders
However in the certification filed by plaintiff's counsel in support of her application for fees counsel included two and one-half hours for "[a]nticipated travel/attendance at court" at a rate of $350 per hour which totaled $875 The judge decided the motion "on the papers" without oral argument and thus the anticipated hours for oral argument should not have been included in the calculation of the fee award We therefore remand this matter to the trial court for the sole purpose of entering an order correcting the counsel fee award by reducing the total from $3050 to $2175
Defendant also argues that the trial judge displayed such animus that the case should be assigned to another judge We find this argument wholly unsupported by the record and without sufficient merit to warrant further discussion R 2:11-3(e)(1)(E)
Remanded to the trial court to correct the counsel fee award In all other respects the Family Part order of May 4 2012 is affirmed