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Gemignani v. Gemignani

Superior Court of New Jersey, Appellate Division

September 5, 2013

MICHAELA GEMIGNANI, Plaintiff-Appellant,
v.
ROBERT GEMIGNANI, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1569-07.

John A. Patti, attorney for appellant.

Weinberger Law Group, LLC, attorneys for respondent (Sebastian Ferrantell, on the brief).

Before Judges Lihotz and Mantineo.

PER CURIAM.

In this post-matrimonial matter, plaintiff Michaela Gemignani appeals the denial of her motion for reconsideration of the court's order reducing defendant Robert Gemignani's child support obligation. Because we find that the court's decision was based on a palpably incorrect basis, we reverse and remand.

I.

The parties were married on August 28, 1998 and divorced on February 11, 2009. They are the parents of two children who are the subject of the present order. As part of their divorce, plaintiff and defendant entered into a Property Settlement Agreement (PSA) on February 11, 2009. The PSA provided defendant's child support obligation would be $26, 000 per year for the two years plaintiff received alimony. Once defendant's alimony ceased, child support would automatically increase to $50, 000 per year.

The PSA provided a procedure to be used if defendant sought modification of his child support obligation prior to the increase to $50, 000. The PSA provided:

[i]f the husband believes that his annual pretax cash flow is less than $200, 000 and he desires to negotiate a lower payment than as prescribed herein, the husband shall have the obligation to furnish all financial documents upon which he intends to rely to justify his position to the wife not later than 90 days before the two[-]year anniversary of this agreement. The husband agrees to allow the wife to have access to all corporate documents, including but not limited to profit and loss statements, balance sheets, K-1s issued to any owner that she may request in order to intelligently assess his claim of lower income. If the wife does not agree that the husband lacks the ability to pay the prescribed child support, the husband and wife shall submit the financial documents upon which the husband intends to rely and any other documents, personal, corporate or belonging to her husband's brother . . . to Laura Ditomasso [sic], CPA, for the purpose of preparing a cash flow analysis showing the husband's annual pretax cash flow from all sources. If the pretax cash flow report prepared by the accountant shows that the husband's pretax cash flow from all sources is less than $200, 000 the wife shall be obligated to pay 50% of the cost of the accountant's fee. . . .

On June 14, 2011, defendant filed a motion for parenting time and plaintiff cross-moved for an increase in child support as stipulated in the PSA. Defendant objected, arguing his pretax cash flow (PTCF) from his business was less than $200, 000 annually. Defendant sought to use the procedure set forth in the PSA to recalculate child support. On August 5, 2011, the court heard argument on the motions. The judge held that defendant's objection to the increase in child support was untimely, as the PSA provided that in order for defendant to prevent the automatic increase from taking effect, he had to object at least ninety days prior to the two-year anniversary of the PSA. This deadline would have made defendant's objection due prior to November 11, 2010. Additionally, the judge found defendant failed to provide plaintiff with the financial documentation which supported his position for downward modification as required by the PSA. The court then ordered, as per the PSA, an increase in defendant's child support to $50, 000 per year.

On August 6, 2011, nearly six months after the two-year anniversary of the parties PSA, defendant retained the services of DiTommaso, the CPA listed in the PSA, to conduct a PTCF analysis. On or about September 29, 2011, plaintiff received a copy of the PTCF report. No motions were pending at the time the analysis was submitted. Thereafter, in October of 2011, defendant's attorney contacted plaintiff's counsel for a response to the analysis. Upon failing to receive a response, defendant filed a motion on November 4, 2011, seeking to have his child support obligation reduced and for plaintiff to reimburse him fifty-percent of the $2, 500 cost of the PTCF analysis. Plaintiff objected to the requested relief, arguing defendant needed to ...


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