K.A.A. VS. G.S.A. (FM-02-1580-11, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0661-20
K.A.A.,1
Plaintiff-Respondent,
v.
G.S.A.,
Defendant-Appellant.
_______________________
Submitted October 14, 2021 – Decided December 16, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1580-11.
August J. Landi, attorney for appellant.
K.A.A., respondent pro se.
PER CURIAM
1
We use initials in the caption to protect the privacy of the litigants and preserve
the confidentiality of certain records because we discuss some of their financial
circumstances. See R. 1:38-3(d)(1).
In this post-judgment matrimonial appeal, defendant G.S.A. argues the
motion judge erred in denying his child-support modification motion. Because
the motion judge reasonably understood defendant was complaining about cost -
of-living adjustments (COLAs) and because he did not abuse his discretion in
finding defendant had not sufficiently supported a modification based on a
change of circumstance, we affirm.
I.
The record reveals the parties married in 2005; had a son born in 2005, a
daughter born in 2008, and a daughter born in 2011; and divorced by way of a
June 10, 2011 dual judgment, which incorporated the parties' property
settlement agreement (PSA).
The PSA provided for joint legal custody of the children and gave
residential custody to plaintiff K.A.A. The parties agreed defendant's "variable
income" made it difficult to allocate child-care expenses "to the satisfaction of
both parties." Nonetheless, as set forth in the PSA, the parties reached
agreement as to defendant's child-support obligation: $3,000 to be paid directly
to plaintiff on the fifteenth of each month until the youngest child is
emancipated. The parties agreed, "[s]aid amounts shall not be modifiable" by
either party.
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Nine years later, defendant filed a motion to "Reset Child Support per
Guidelines." He sought the following relief:
1) Finding that the Court has the jurisdictional authority
to set Child Support in accordance with the New Jersey
Child Support Guidelines . . . .
2) Requiring that the parties exchange current Case
Information Statements within ten days of the date
hereof.
3) Referring the parties to Post-mandatory economic
mediation as provided for by the Rules of Court. . . .
Mediation shall include deriving an amortization of
arrearages schedule, for arrears that have accumulated
since March 2020.[2]
4) Should the parties fail to reach agreement as to the
level of Child Support retroactive to the filing date of
this Application, on letter request the Court will
schedule a Case Management conference to set time
frames and discovery in advance of a Plenary Hearing.
5) Scheduling a Plenary Hearing on the issues raised in
movant's application to reduce Child Support.
6) For such further relief as the Court deems equitable
and just.
In a certified statement in support of the motion, defendant complained, "here's
the rub":
[t]he $3,000 monthly payment has been modified! I
now pay $3,346 per month per court order initiated by
2
The motion judge found defendant's arrears were $17,422.
A-0661-20
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the Probation Department attributable to COLA
increases even though Paragraph 6 [of the PSA] utilizes
the words "not be modifiable." The [c]ourt did it
anyway.
. . . Over the past nine years because of COLA
increases I have paid approximately $15,000 over and
above $3000 per month.
In a letter brief in support of the motion, defendant complained , "G.S.A. is now
required to pay an additional $346 / month attributable to COLA increases" and
faulted plaintiff for "never return[ing] any of the COLA increased funds."
In a written order, the motion judge denied defendant's motion, finding
"[t]he child support obligation had been increased by way of [COLAs], which
occur[] pursuant to operation of law," citing Rule 5:6B, and on notice to the
obligor, thereby distinguishing COLAs from a child-support increase sought by
a party.
In a written amplification of his decision submitted pursuant to Rule 2:5-
1(b) after defendant appealed the order, the motion judge stated, "[a]lthough it
may be implied, the notice of motion does not specifically request a modification
of child support or a retroactive modification of the child support arrears." The
motion judge stated based on defendant's submissions, "[i]t appeared that the
defendant primarily relied upon both the passage of time and the [COLAs] as
the bases of his requested relief." The judge found: (1) the "mere passage of
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time . . . [was] not a sufficient reason to request that a court review the [child -
support] order or require that the parties exchange financial information," citing
Martin v. Martin, 410 N.J. Super. 1, 4 (Ch. Div. 2009); (2) defendant's child-
support obligation had been modified by COLAs pursuant to Rule 5:6B, on
notice to and with no objection from defendant; and (3) if defendant was seeking
to modify his child-support obligations based on a change in circumstance, he
had failed to submit a 2011 Case Information Statement and, thus, had not met
his burden, pursuant to Lepis v. Lepis, 83 N.J 139, 151 (1980), to demonstrate
"specific and substantial changed circumstances" had occurred since the dual
judgment was entered. The motion judge faulted defendant for apparently
attempting to modify arrears retroactively contrary to N.J.S.A. 2A:17-56.23a.
On this appeal, defendant argues in his counseled brief:
Point I:
THE TRIAL COURT'S ORDER of SEPTEMBER 25,
2020 AND DECEMBER 1, 2020 "AMPLIFICATION
OF DECISION" LACK SUFFICIENT FINDINGS OF
FACT AND CONCLUSIONS OF LAW FOR
APPELLATE REVIEW.
Point II:
THE TRIAL COURT FAILED TO RESOLVE THE
ISSUES AND REQUESTS RAISED IN
APPELLANT'S POST-JUDGMENT APPLICATION.
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[a] APPELLANT & RESPONDENT AGREED
THE COURT SHOULD RESOLVE THE CHILD
SUPPORT ISSUE ON THE MERITS, RATHER
THAN SIMPLY ENFORCE THE NON-
MODIFIABILITY PROVISION OF THEIR NINE
YEAR OLD PROPERTY SETTLEMENT
AGREEMENT:
[1] RESPONDENT's POSITION: "I'M
SURE THERE ARE GUIDELINES IN
PLACE FOR THIS, THAT CAN
PROTECT EVERYONE."
[2] RESPONDENT PROVIDED A
CURRENT CASE INFORMATION
STATEMENT, REPORTING ANNUAL
INCOME OF $147,142 IN 2019, AND
YEAR-TO-DATE INCOME OF
$65,034.35 THRU 6/30/2020 SO THE
COURT COULD ADJUST THE
AMOUNT OF CHILD SUPPORT. IF SHE
SIMPLY SOUGHT TO ENFORCE THE
PSA, THIS INFORMATION WOULD
HAVE BEEN SUPERFLUOUS.
[b] THE COURT'S FINDING APPELLANT
"DOES NOT SPECIFICALLY REQUEST A
MODIFICATION OF CHILD SUPPORT" IS
ERRONEOUS AND NOT SUPPORTED BY THE
RECORD.
Point III:
UNDER CIRCUMSTANCES WHERE APPELLANT's
MORTGAGE REMAINS IN DEFAULT SINCE
JANUARY 2020, IT WOULD BE NEITHER FAIR,
EQUITABLE NOR JUST TO ARBITRARILY
ENFORCE THE PARTIES PSA CLAUSE
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DECLARING SUPPORT TO BE NON-MODIFIABLE
TILL 2029. UNDER SUCH CIRCUMSTANCES
WHERE RESPONDENT REPORTS INCOME OF
$147,152 IN 2019, AN EXCHANGE OF
DISCOVERY, AND MANDATORY ECONOMIC
MEDIATION, IS FULLY WARRANTED;
FOLLOWED BY A PLENARY HEARING IF
SUPPORT ISSUES REMAIN UNRESOLVED.
In her response, submitted pro se, plaintiff makes clear she opposes
modification of defendant's child-support obligation, arguing defendant's claim
is "premature" given that he lives "a very comfortable lifestyle."
II.
We "review the Family Part judge's findings in accordance with a
deferential standard of review, recognizing the court's 'special jurisdiction and
expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83
(2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We reverse "only
when a mistake must have been made because the trial court's factual findings
are 'so manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence as to offend the interests of justice . . . .'"
Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015)
(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484
(1974)). However, legal decisions of family part judges are reviewed de novo.
Reese v. Weis, 430 N.J. Super. 552, 568 (2013).
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The Family Part has authority under N.J.S.A. 2A:34-23 to modify child-
support awards. Spangenberg, 442 N.J. Super. at 535. The statute provides
child-support orders "may be revised and altered by the court from time to time
as circumstances may require." N.J.S.A. 2A:34-23. "Our courts have
interpreted this statute to require a party who seeks modification to prove
'changed circumstances[.]'" Spangenberg, 442 N.J. Super. at 536 (alteration in
original) (quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)). A motion for
modification of child support "rests upon its own particular footing and [we]
must give due recognition to the wide discretion[,] which our law rightly affords
to the trial judges who deal with these matters." Ibid. (alteration in original)
(quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). "While an 'abuse
of discretion . . . defies precise definition,' we will not reverse the decision
absent a finding the judge's decision 'rested on an impermissible basis[,]'
considered 'irrelevant or inappropriate factors[,]'" ibid. (alterations in original)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571-72 (2002)), or
"failed to consider controlling legal principles or made findings inconsistent
with or unsupported by competent evidence," ibid. (quoting Storey v. Storey,
373 N.J. Super. 464, 479 (App. Div. 2004)).
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"[T]he changed-circumstances determination must be made by comparing
the parties' financial circumstances at the time the motion for relief is made with
the circumstances which formed the basis for the last order fixing support
obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). To
establish changed circumstances, a "party seeking modification has the burden
of showing such 'changed circumstances' as would warrant relief from the
support or maintenance provisions involved." Lepis, 83 N.J. at 157 (quoting
Martindell, 21 N.J. at 353).
We agree with the motion judge that defendant's motion was not a paragon
of clarity. Given defendant's repeated references in his motion submissions to
the COLAs, we understand why the motion judge focused on them. And he
correctly decided that issue.
Rule 5:6B(a) requires all "judgments that include child support entered . .
. on or after September 1, 1998 . . . [to] provide that the child support amount
will be adjusted every two years to reflect the cost of living." That the parties
failed to include that language in their PSA and, thus, failed to comply with that
requirement does not excuse them from it. Rule 5:6B(d) provides:
Before a [COLA] is applied, the parties shall be
provided with notice of the proposed adjustment and an
opportunity to contest the adjustment within 30 days of
the mailing of the notice. An obligor may contest the
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adjustment if the obligor's income has not increased at
a rate at least equal to the rate of inflation as measured
by the Consumer Price Index or if the order or judgment
provides for an alternative periodic [COLA]. A
[COLA] shall not impair the right of either parent to
apply (1) to the court for a modification of support
provisions of the order or judgment based on changed
circumstances, or (2) to the State IV-D agency or its
designee for a three-year review of a Title IV-D child
support order, without the need to show changed
circumstances.
Defendant does not deny receiving notice of the COLAs or that he failed to
contest them timely. Accordingly, the motion judge correctly declined to
modify defendant's child-support obligation based on the COLAs.
Asserting his "personal income is a fraction of what it was" in 2011
because he lost his job in 2019, defendant also apparently contends that a change
of circumstance since entry of the dual judgment supports his request for
modification of his child-support obligation and argues the non-modification
clause of the PSA should not defeat that request.
Defendant admittedly failed to comply with Rule 5:5-4(a)(4), which
requires a movant seeking a modification of child support to include both a prior
and a current case information statement. See Palombi v. Palombi, 414 N.J.
Super. 274, 287-88 (App. Div. 2010). Defendant contends the "typical analysis
utilize[d] by the [c]ourt to determine whether there is a threshold showing of
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'substantially changed financial circumstances' is not fully applicable in this
instance since the record . . . does not contain a financial base line from 2011 .
. . ." He faults the motion judge for not requiring parties to produce "Social
Security Wage Earning Statements for 2010 through 2019." Of course, he could
have included in his motion his statements for those years to support the motion
but didn't. Based on the motion record and admitted lack of support defendant
provided for his change-of-circumstances claim, we see no abuse of discretion
in the motion judge's denial of defendant's motion.
Defendant's remaining arguments lack sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E). We note defendant appears
to fault the motion judge for "arbitrarily enforc[ing] the parties' PSA clause
declaring support to be non-modifiable." The judge made no such ruling but
merely commented on defendant's conflicting positions: "[h]e requests that the
court retroactively vacate the COLAs because of PSA language that neither
party will seek to modify the child support obligation, while requesting that the
court modify his prospective child support obligation."
For the reasons set forth above, we affirm. Our affirmance of the denial
of this motion does not preclude defendant from filing a new, properly supported
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motion for modification pursuant to Rule 5:5-4(a)(4), clearly stating the relief
sought pursuant to Rule 1:6-2(a).
Affirmed.
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