JACQALENE NOVAK VS. KENNETH J. NOVAK(FM-10-106-06, HUNTERDON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4416-15T2
JACQALENE NOVAK,
Plaintiff-Respondent,
v.
KENNETH J. NOVAK,
Defendant-Appellant.
_____________________________
Submitted May 17, 2017 – Decided July 17, 2017
Before Judges Simonelli and Farrington.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hunterdon County, Docket No. FM-10-106-06.
Kenneth J. Novak, appellant pro se.
Jacqalene Novak, respondent pro se.
PER CURIAM
In this post-judgment matrimonial matter, defendant Kenneth
J. Novak appeals from that part of the April 29, 2016 Family Part
order which denied his motion to terminate his obligation to pay
60% of his eldest daughter's college costs based upon a change of
his financial circumstances. For the following reasons, we affirm.
The parties were married on April 17, 1993, and divorced on
October 3, 2006. Two children were born of the marriage, J.N.,
born in 1996, and G.N., born in 1999.1 Although the parties had
executed a property settlement agreement, which was incorporated
into their final judgment of divorce, it contained no provision
for contribution toward the children's college expenses. However,
in a March 11, 2011 consent order, defendant agreed to pay 60% of
the children's tuition and school expenses and plaintiff agreed
to pay 40%, effective for the 2011-2012 school year and going
forward. Thereafter, defendant embarked on a crusade to terminate
his obligation to pay J.N.'s college costs based on his changed
financial circumstances. In each instance, the court denied the
motion and enforced the consent order, finding defendant failed
to show a change in financial circumstances sufficient to amend
the order.
Judge Julie M. Marino heard another motion by defendant
concerning his obligation to pay J.N.'s college expenses. In a
February 29, 2016 order, the judge found that the records defendant
submitted in support of his motion were incomplete and
insufficient. The judge concluded that defendant failed to provide
evidence reflecting a significant, ongoing change of circumstances
1
Pursuant to Rule 1:38-3(d), we use initials to protect the
identity of the children.
2 A-4416-15T2
to warrant a modification of prior orders requiring him to pay 60%
of J.N.'s college expenses.
Defendant filed yet another motion concerning his obligation
to pay J.N.'s college expenses. In an April 29, 2016 order and
written statement of reasons, from which defendant appeals, Judge
Marino found as follows:
Defendant brings the same argument he
presented before this Court in February 2016.
Defendant provides some evidence for his
certification of events that have taken
p[l]a[]ce which he believes are a change in
circumstance. However, he misrepresents his
financial situation. Plaintiff presents the
[c]ourt with a letter from the Internal
Revenue Service dated December 14, 2015
wherein the [d]efendant requests an appeal
from a collection due process hearing,
evidencing that his tax returns from 2008
until 2013 are or were subject to audit by the
IRS. The [c]ourt cannot reasonably rely upon
any tax returns [] subject to audit as proof
of [d]efendant’s income. Therefore, as the
[d]efendant has not presented any new evidence
not already considered in previous motions or
any reliable financial information not subject
to audit, the [c]ourt cannot find a change in
circumstance that would necessitate a
modification of an order entered almost three
years ago.
On appeal, defendant contends that he made a threshold showing
of a change in his financial circumstances warranting a
modification of his obligation to pay 60% of J.N.'s college
expenses.
3 A-4416-15T2
"In our review of a Family Part judge's motion order, we
defer to factual findings 'supported by adequate, substantial,
credible evidence' in the record." Landers v. Landers, 444 N.J.
Super. 315, 319 (app. Div. 2016) (quoting Gnall v. Gnall, 222 N.J.
414, 428 (2015)). "Reversal is warranted when we conclude a
mistake must have been made because the trial court's factual
findings are 'manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice[.]'" Ibid. (quoting Rova Farms Resort,
Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
"However, when reviewing legal conclusions, our obligation is
different; '[t]o the extent that the trial court's decision
constitutes a legal determination, we review it de novo.'" Ibid.
(quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
Applying these standards, we discern no reason to disturb Judge
Marino's ruling.
A parent seeking to modify a child support order must show
"'changed circumstances had substantially impaired [the parent's]
ability to support himself or herself.'" Foust v. Glaser, 340
N.J. Super. 312, 316 (App. Div. 2001) (quoting Lepis v. Lepis, 83
N.J. 139, 157 (1980)). When considering an application to modify
a support obligation, the movant must "make a prima facie showing
of changed circumstances warranting relief prior to the court
4 A-4416-15T2
ordering discovery of the full financial circumstances" of the
parties. Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div.
1998) (citing Lepis, supra, 83 N.J. at 157-59). "If that showing
is made, and after receipt of ordered discovery, the judge then
determines whether the changed circumstances justify modification.
A plenary hearing may be necessary to adjudicate the matter if
there are genuine issues of material fact." Ibid. (citing Tancredi
v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968)).
Rule 5:5-4(a) requires that a motion for modification shall
be accompanied by a copy of the prior case information statement
or statements filed before entry of the order or judgment sought
to be modified and a copy of a current case information statement
in the form set forth in Appendix V. When seeking to modify a
support order, litigants must attach "copies of relevant documents
as required by the Case Information Statement, including [their]
most recent tax returns with W-2 forms, 1099s and [their] three
(3) most recent paystubs." Family Part Case Information Statement,
Pressler & Verniero, Current N.J. Court Rules, Appendix V to R.
5:5-4(a) at 1 (2016). "Accurate, complete and current information
is essential at every stage of a litigated matrimonial matter.
The quality of every judicial decision depends heavily on the
information presented to the court". Pressler & Verniero, Current
N.J. Court Rules, comment 1 on R. 5:5-2 (2016).
5 A-4416-15T2
We have considered defendant's contention in light of the
record and applicable legal principles and conclude it is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We affirm substantially for the reasons Judge
Marino expressed in her written statement of reasons. We are
satisfied that defendant failed to provide accurate, complete, and
current information to support his claim of a change in financial
circumstances.
Affirmed.
6 A-4416-15T2