K.W. VS. G.Y. (FM-14-0985-14, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-0013-20
K.W.,
Plaintiff-Respondent,
v.
G.Y.,
Defendant-Appellant.
___________________________
Submitted May 25, 2021 – Decided July 7, 2021
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0985-14
Laufer, Dalena, Jensen, Bradley & Doran, LLC,
attorneys for appellant (Peter G. Bracuti, of counsel and
on the brief).
K.W., respondent pro se.
PER CURIAM
In this post-judgment matter, defendant appeals from a July 24, 2020 order
denying his motion for reconsideration of the denial of his request to reduce his
child support obligations. 1 He argues that his economic circumstances changed
when his application for pension benefits was delayed because of the COVID-19
pandemic. The family court found that he had not demonstrated a substantial
change of circumstances. We agree and affirm.
I.
The material facts are not in dispute. The parties were married in March
2005. They have two children, daughters born in 2005 and 2009. They were
divorced in December 2019.
Their divorce followed a seven-day trial. The dual final judgment of
divorce (JOD) directs defendant, the father, to pay $126 per week in child
support. The JOD also requires defendant to pay 46% of the children's
extracurricular expenses, up to an annual cap of $6,000. Those support awards
were based on plaintiff's annual income of just over $149,000 and defendant's
imputed annual income of just over $129,700. More specifically, the family
court imputed annual income to defendant based on $58,101.48 in pension
income, $56,086 in employment income, and $15,532 in investment income.
1
Because some of the procedural history involves allegations of domestic
violence, we use initials to protect privacy interests. R. 1:38-3(c)(12).
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2
The court then used the Child Support Guidelines to calculate defendant's
obligations.
For almost twenty-five years, and for most of the parties' marriage,
defendant had been a police officer. In March 2017, he was fired following an
internal affairs investigation and disciplinary determination that he had engaged
in misconduct related to a domestic dispute with plaintiff. He appealed his
termination, but we affirmed the decision upholding his termination. G.Y. v.
Twp. of Hanover, No. A-2600-17 (App. Div. Feb. 19, 2019) (slip op. at 21).
In February 2020, defendant applied to receive his police pension. He
explained that he waited until that time to file his application because he was
hoping to regain his former employment or find another position as a police
officer so he could get to twenty-five years of service, which would significantly
increase his pension payments.
Defendant certified that the Police and Firemen's Pension Review Board
has not acted on his pension application because the Board is not hearing cases
due to the COVID-19 pandemic. Accordingly, in April 2020, defendant filed an
application to decrease his child support payments and his contribution towards
the children's extracurricular expenses.
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Plaintiff represents that she never received that motion. Nevertheless, the
family court denied the motion in an order dated June 5, 2020. The court also
issued a short statement of reasons explaining its decision. The family court
denied the application because defendant had stopped receiving unemployment
benefits in February 2020, but those temporary benefits did not factor into the
calculation of defendant's imputed income. The family court also explained that
it did not think defendant's application warranted oral argument.
On June 25, 2020, defendant moved for reconsideration and requested a
new determination that he had made a showing of substantial and involuntary
change in his financial circumstances. He argued that because he was not
receiving a pension, his child support should be reduced to $18 per week and
his contributions towards the children's extracurricular expenses should be
reduced to 38%.
On July 24, 2020, the family court issued a statement of reasons and order
denying defendant's second application. The court explained that it did not
believe the motion for reconsideration warranted oral argument. The court also
found that defendant did not make a prima facie showing of a substantial change
in circumstances because he did not provide documents explaining how long
pension applications typically take to be considered or how the delay was
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attributable to the COVID-19 pandemic. The family court also pointed out that
defendant bore some responsibility for the delay because he had waited almost
three months after entry of the JOD to apply for his pension.
II.
Defendant now appeals from the July 24, 2020 order. He argues that the
family court erred in (1) denying his motion for reconsideration; (2) failing to
find that he had established a substantial change of his financial circumstances;
(3) failing to make a temporary adjustment to his child support obligation under
N.J.S.A. 2A:34-23; and (4) failing to hear oral arguments. We discern no abuse
of discretion or error of law warranting a reversal and, therefore, we affirm.
Orders for child support "may be revised and altered by the court from
time to time as circumstances may require." N.J.S.A. 2A:34-23. Appellate
courts use an abuse of discretion standard "[w]hen reviewing decisions granting
or denying applications to modify child support." J.B. v. W.B., 215 N.J. 305,
325-26 (2013) (quoting Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div.
2012)). We also use an abuse of discretion standard when reviewing an order
denying a motion for reconsideration. Brunt v. Bd. of Trs. Police & Firemen's
Ret. Sys., 455 N.J. Super. 357, 362 (App. Div. 2018). "An abuse of discretion
'arises when a decision is "made without a rational explanation, inexplicably
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depart[s] from established policies, or rest[s] on an impermissible basis."'"
Jacoby, 427 N.J. Super. at 116 (quoting Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002)).
Child support orders are subject to modification on a showing of a change
in circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citations omitted).
The party seeking modification of a prior order or judgment must establish a
prima facie showing of changed circumstances. Id. at 157. A change in
circumstances can include a decrease in income. Quinn v. Quinn, 225 N.J. 34,
49 (2016). Generally, however, the movant must show that there has been a
"substantial, non-temporary change[] in [his or her] ability to . . . pay support."
Gordon v. Rozenwald, 380 N.J. Super. 55, 67-68 (App. Div. 2005).
Consequently, even when there is a large reduction in income, a reduction in
child support should not be granted if the decrease is temporary. Donnelly v.
Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009); Larbig v. Larbig, 384
N.J. Super. 17, 22-23 (App. Div. 2006). Moreover, the needs of the children are
always a consideration. N.J.S.A. 2A:34-23(a)(1).
Defendant failed to make a prima facie showing of a substantial change in
his financial circumstances. There is nothing in the record explaining how and
when defendant will obtain his police pension. More critically, there is nothing
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in the record explaining exactly how and why the COVID-19 pandemic has
impacted the Board of Trustees of the Police and Firemen's Retirement System.
Consequently, defendant has made no showing of how long he will have to wait
to receive his pension, or whether he will be given a retroactive payment dating
back to February 2020, when he first applied for his pension.
We reject defendant's argument that he established a change of
circumstances "as a matter of law." That contention is inconsistent with well-
established law that requires the moving party to show a change of
circumstances. Lepis, 83 N.J. at 146; Jacoby, 427 N.J. Super. at 116.
We also reject defendant's contention that it is inequitable to deny his
application since he is not responsible for the COVID-19 pandemic. While
defendant is clearly not responsible for the pandemic, he has failed to present
facts establishing how long there will be a delay in his receipt of his pension and
whether that temporary delay will cause a prolonged substantial change in his
economic circumstances. Accordingly, it would not be equitable to the children
to make a change when defendant has not made the required showing. Donnelly,
405 N.J. Super. at 128 (citing Larbig, 384 N.J. Super. at 23) (explaining that the
determination of whether there has been a change of circumstances long enough
to warrant modification is committed to the family court's discretion).
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We also reject defendant's argument that the family court should have
fashioned a temporary order using its authority under N.J.S.A. 2A:34-23. The
section defendant cites, N.J.S.A. 2A:34-23(k), permits temporary reductions in
alimony payments, not child support obligations. While the family court has
authority in certain circumstances to temporarily reduce child support
obligations, see Kuron v. Hamilton, 331 N.J. Super. 561, 576 (App. Div. 2000),
that authority is committed to the sound discretion of the family court, J.B., 215
N.J. at 325-26. We discern no abuse of that discretion here.
Finally, we discern no basis to reverse the family court's order because the
court did not hear oral argument. The better practice is to hear oral argument
when requested. See R. 5:5-4(a)(1); see also Filippone v. Lee, 304 N.J. Super.
301, 306 (App. Div. 1997). Nevertheless, there are circumstances when family
courts have discretion not to hear oral argument. Palombi v. Palombi, 414 N.J.
Super. 274, 285-86 (App. Div. 2010). Defendant had a full and fair opportunity
to present his arguments in support of his application to reduce his child support .
Moreover, he has not pointed to any substantive issue not considered by the
family court. Therefore, we see no reason to remand this matter for oral
argument.
Affirmed.
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