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Arcieri v. Randazzo

Superior Court of New Jersey, Appellate Division

October 29, 2013

CARMELA ARCIERI, Plaintiff-Appellant,
v.
STEFANO RANDAZZO, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 17, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1709-07.

Marc J. Rogoff, attorney for appellant.

Respondent has not filed a brief.

Before Judges Simonelli and Fasciale.

PER CURIAM

Plaintiff appeals from a June 12, 2012 order scheduling a plenary hearing; and a July 20, 2012 order reducing defendant's alimony and child support obligations, denying plaintiff's request to interview the parties' children, ordering defendant to pay dental bills, and denying plaintiff's request for counsel fees. We affirm.

The parties were married for approximately fifteen years, had four children together, and obtained a judgment of divorce (JOD) in 2008. The JOD required defendant to pay plaintiff $1500 per month in alimony and $257 per week in child support. In April 2012, defendant filed a motion to modify his support obligations certifying that the loss of his carpet business in 2008 constituted changed circumstances. He also sought to increase his visitation time with the children. Plaintiff filed a certification opposing the motion and challenging the existence of changed circumstances. She also cross-moved seeking to compel defendant to pay outstanding dental bills, requesting that the judge interview the children, and requiring that defendant pay her legal fees.

Judge James Hely conducted a plenary hearing to address the disputed factual issues. He took testimony from the parties and then issued a written opinion. The judge believed defendant's testimony and concluded that the loss of defendant's carpet business constituted "a permanent and significant" change in circumstances. Judge Hely relied on Rule 5:6A and found that good cause existed to depart from the child support guidelines.[1]He then reduced defendant's obligation to pay child support to $100 per week and alimony to $200 per month, but the judge ordered defendant to pay $1150 per month towards his support obligation arrears. He also ordered defendant to pay the dental bills (after offsetting the value of two forklifts), denied plaintiff's request to interview the children regarding defendant's parenting time, and denied plaintiff's request for counsel fees. This appeal followed.

On appeal, plaintiff argues that (1) the judge abused his discretion by conducting a plenary hearing; (2) defendant failed to establish changed circumstances warranting a reduction in his support obligations; and (3) the judge erred by not conducting an in camera interview with the children, by issuing a credit to defendant for his obligation to pay dental bills, and by denying plaintiff's motion for counsel fees. We focus primarily on whether the judge abused his discretion by modifying defendant's support obligations.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Due to the Family Part's special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App. Div. 1963)). We do not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). As long as the judge's findings of fact "'could reasonably have been reached on sufficient credible evidence present in the record . . . [considering] the proofs as a whole'" they are binding upon us. Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). A court may modify support obligations on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 145-46 (1980). Here, the judge found that defendant's loss of his carpet business was involuntary, led to a decrease in income, and constituted changed circumstances. See Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Lepis, supra, 83 N.J. at 151 (indicating in general that a "decrease in the supporting spouse's income" constitutes changed circumstances and warrants modification of support obligations)). Looking at the proofs as a whole, we have no reason to disturb the judge's finding that changed circumstances existed.

We acknowledge that the Family Part is granted discretion in awarding financial support in a matrimonial action, including whether the amount of alimony should be modified, Innes, supra, 117 N.J. at 504; Larbig v. Larbig, 384 N.J.Super. 17, 21 (App. Div. 2006), and what amount of child support is appropriate when the child support guidelines are not applicable, Pascale v. Pascale, 140 N.J. 583, 595 (1995). "If consistent with the law, such an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J.Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J.Super. 591, 605 (App. Div. 1999)). Against this standard, we see no error.

Regarding defendant's request to modify his alimony obligation, defendant was required to demonstrate that the changed circumstances "substantially impaired" his ability to support himself. Lepis, supra, 83 N.J. at 157. At the time of the divorce, the court imputed to defendant income in the amount of $85, 000 per year. Defendant lost the carpet business around the time of the divorce. Defendant's 2010 tax return showed his annual income as a bus driver in the amount of $7560. Defendant's 2011 tax return reflected an annual income in the amount of $9283. Defendant's wages had also been garnished to satisfy his ...


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