PETER DALEDDA VS. LORETTA GUARDINO(FM-02-1937-10, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3215-15T3
PETER DALEDDA,
Plaintiff-Appellant,
v.
LORETTA GUARDINO,
Defendant-Respondent.
______________________________
Argued August 1, 2017 – Decided August 17, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1937-10.
Jenny Berse argued the cause for appellant.
Francesca S. Blanco argued the cause for
respondent.
PER CURIAM
Plaintiff appeals from a March 22, 2016 Family Part order
denying his motion for reconsideration. We affirm for the reasons
that follow.
Plaintiff and defendant were married on June 21, 1987, and
had one child. The couple divorced March 8, 2011, entering into
a property settlement and support agreement (the agreement). The
agreement obligates plaintiff to pay defendant $42,500 per year
in permanent alimony in equal installments of $817.31 per week.
The agreement states plaintiff was fifty-two years of age at the
time of the divorce and worked as an executive chef in New York
City, making a salary of $180,400 per year. He also had a 401K
savings plan through his employer and an Individual Retirement
Agreement (IRA). Defendant had worked as a secretary, earning
$20,800 annually, but was unemployed at the time of the divorce.
She also had an IRA. The parties agreed to an equal equitable
division of the marital portions of the various retirement and
other accounts.
In March 2015, plaintiff lost his job. In June 2015, he
stopped paying his alimony obligation. Defendant moved to enforce
litigant's rights in July 2015. Plaintiff cross-moved seeking to
terminate his alimony obligation, revisit his alimony obligation
upon obtaining employment, and emancipate the parties' child.
On September 30, 2015, the Family Part judge found plaintiff's
unemployment to be temporary in nature, denied modification, and
issued an order requiring plaintiff to pay defendant $11,442.34
in alimony arrears and $2100 in child support arrears within
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fourteen days and to resume regular payments. The Family Part
judge also denied emancipation of the parties' child.
On October 9, 2015, plaintiff moved for reconsideration of
the September 30, 2015 order. In October 2015, plaintiff secured
a new position earning $114,000 per year. On December 2, 2015,
the Family Part judge entered an order granting plaintiff's motion
for reconsideration in part, granting plaintiff's request for
emancipation of the parties' child, denying plaintiff's request
for modification of alimony, and denying both parties' requests
for counsel fees. The Family Part judge discredited the
discrepancy in income between plaintiff's former position and his
new position, noting the cost of living in Florida, where plaintiff
resides, is lower than in New Jersey/New York, and plaintiff's
$114,000 per year salary was not in and of itself prima facie
evidence he was unable to earn what he previously earned to
establish changed circumstances.
Defendant received no alimony payments from plaintiff and
filed another motion on December 8, 2015, seeking wage garnishment
and probation monitoring. Plaintiff again moved for modification
of alimony. On March 22, 2016, the Family Part judge granted
defendant's request for wage garnishment and probation monitoring
and ordered plaintiff to make a lump sum payment of $11,442.34
within thirty days. Plaintiff appealed from the March 22, 2016
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order. On appeal, plaintiff argues the court erred by denying
modification of alimony and requests the matter be remanded to a
different judge; plaintiff also contends he should be awarded
counsel fees. We disagree and affirm.
Appellate review is particularly deferential to family
courts' findings of fact because of their unique expertise. Cesare
v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference."
Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995) (citing State v. Brown, 118 N.J. 595, 604 (1990); Dolson
v. Anastasia, 55 N.J. 2, 7 (1969); Pearl Assurance Co. Ltd. v.
Watts, 69 N.J. Super. 198, 205 (App. Div. 1961)).
Plaintiff asserts the record does not support the judge's
determination and factual findings because the judge took no
testimony and overlooked the parties' agreement, the applicable
statutory factors, case law, and the substantial change in
plaintiff's circumstances. He asserts he is entitled to a plenary
hearing.
As noted above, plaintiff appeals only the motion for
reconsideration and not the original order. See Fusco v. Bd. of
Educ., 349 N.J. Super. 455, 461-62 (App. Div.) (citing Pressler,
Current N.J. Court Rules, cmt. 6 on R. 2:5-1(f)(3)(i) (2002))
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(explaining this court only considers judgments and orders listed
in a notice of appeal), certif. denied, 174 N.J. 544 (2002).
Accordingly, we review for an abuse of discretion. Ibid. We also
note "[m]otions for reconsideration are granted under very narrow
circumstances." Ibid.Reconsideration should be used only for those
cases which fall into that narrow corridor in
which either (1) the Court has expressed its
decision based upon a palpably incorrect or
irrational basis, or (2) it is obvious that
the Court either did not consider, or failed
to appreciate the significance of probative,
competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990); R. 4:49-2).]
We discern no abuse of discretion on the part of the Family
Part judge. As the judge correctly explained, when a party seeks
to modify any support obligation under an agreement, the party
must demonstrate "changed circumstances" supporting such a
modification. See J.B. v. W.B., 215 N.J. 305, 327 (citing Lepis
v. Lepis, 83 N.J. 139, 146-48 (1980)). A reduced income may
qualify as "changed circumstances." Ibid. Family Part judges,
however, have considerable discretion in determining whether a
changed circumstance warrants an alimony modification. Larbig v.
Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). This discretion
turns on a Family Part judge's "experience as applied to all the
relevant circumstances presented." Ibid. We further note the
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party seeking modification has the burden of demonstrating such
changed circumstances as would warrant relief from his or her
obligation. Lepis, supra, 83 N.J. at 157. When a supporting
spouse brings an application for a downward modification, the
central focus is on "the supporting spouse's ability to pay."
Miller v. Miller, 160 N.J. 408, 420 (1999).
Although the judge noted plaintiff's reduced income, he also
noted the reduced reported income did not appear to be a permanent
circumstance. In order to prove changed circumstances, the change
must be permanent. Lepis, supra, 83 N.J. at 151. Accordingly,
we conclude the Family Part judge's decision was not based on a
palpably incorrect basis.
Plaintiff's income at the time of the agreement was $180,000.
Plaintiff asserts his current income from his new job is thirty-
seven percent lower, but plaintiff has not demonstrated he cannot
earn more. "Courts have consistently rejected requests for
modification based on circumstances which are only temporary."
Ibid. The issue is whether changed circumstances are enduring
enough to warrant a modification. In other words, plaintiff must
demonstrate his decline in income and his ability to earn are
permanent. The motion judge correctly concluded plaintiff's
evidence did not evince a showing of permanent changed
circumstances. Accordingly, there was no basis upon which the
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Family Part was required to conduct a plenary hearing. See id.
at 157 (explaining a court should hold a plenary hearing if "a
party clearly demonstrate[s] the existence of a genuine issue as
to a material fact").
We also conclude the court appropriately considered all of
the relevant probative and competent evidence. See D'Atria, supra,242 N.J. Super. at 401. The trial court reviewed plaintiff's
submissions and found plaintiff did not demonstrate his earning
capacity had substantially changed since the time the parties'
executed agreement. We find no error on the judge's part in this
regard.
Plaintiff's argument the Family Part judge disregarded the
provision in the agreement permitting an application to modify it
is unpersuasive. Plaintiff was permitted to, and did, make such
an application, but he fell short of the proofs required to
establish changed circumstances. Moreover, we reject the argument
plaintiff is entitled to a modification merely based on defendant's
employment status.
In light of our decision, we need not address plaintiff's
argument for a new judge to hear this matter. Plaintiff's
remaining arguments lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(11)(E).
Affirmed.
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