F.L. v. E.S.Y. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3447-22
F.L.,
Plaintiff-Respondent,
v.
E.S.Y.,
Defendant-Appellant.
_______________________
Argued June 5, 2024 – Decided July 29, 2024
Before Judges Vernoia and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-2724-14.
E.S.Y., appellant, argued the cause pro se.
F.L., respondent pro se.
PER CURIAM
In this post-judgment matrimonial case, defendant E.S.Y. appeals from a
provision of an April 12, 2023 order requiring him to make weekly child-support
payments of $374 and a June 14, 2023 order denying his motion to modify that
amount and to require plaintiff F.L.1 to disclose "any concealed income." 2 We
affirm both orders.
I.
The parties were married in 2005 and had two children, one born in 2005
and the other in 2008. The parties divorced by way of a judgment of divorce
(JOD) on March 30, 2016. Pursuant to the JOD, defendant was required to make
by wage garnishment monthly payments of $1,000 in limited duration alimony
for four-and-one-half years and weekly payments of $226 in child support. The
JOD required the parties to revisit the "percentage of child support and the child
support calculations . . . once the limited duration alimony cease[d]."
Defendant moved for reconsideration of the JOD. A Family Part judge
denied his motion on June 30, 2016. Defendant appealed from the JOD and the
denial of his motion, arguing parts of the JOD, including the judge's findings
regarding his income, had not been supported by sufficient credible evidence.
1
Plaintiff did not participate in oral argument.
2
We use initials to protect the parties' privacy given our extensive discussion
about their purported incomes as reported in part in their Family Case
Information Statements submitted to the court pursuant to Rule 5:5-2. See R.
1:38-3(d)(1) (excluding from public access "Family Case Information
Statements required by [Rule] 5:5-2").
A-3447-22
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We affirmed, holding "[t]he specific findings that the trial court made were all
supported by substantial credible evidence" and "[t]he trial court correctly noted
that defendant sought to introduce new information on his motion for
reconsideration, but that the information had been available to defendant at the
time of trial," and "correctly concluded that defendant's attempt to supplement
and expand the record was not permitted." F.L. v. E-S.Y., No. A-5115-15 (App.
Div. Jan. 18, 2018) (slip op. at 6-7). On June 22, 2018, on plaintiff's motion, a
Family Part judge entered a qualified domestic relations order enforcing the
JOD. Defendant appealed that order; we affirmed. F.L. v. E-S.Y., No. A-5632-
17 (App. Div. Nov. 26, 2019).
In 2020, asserting he had a $3,978.73 credit balance in his support
payments, defendant moved to suspend or reduce temporarily the wage
garnishment until the credit balance was depleted. A Family Part judge granted
his motion in part, finding plaintiff had a credit balance of $3,750.33 and
ordering his weekly child-support obligation be reduced to $126 and his weekly
alimony obligation be reduced to $130.77 for approximately four and a half
months, at which time the credit would be deemed satisfied. Plaintiff moved for
reconsideration. The judge denied that motion. Plaintiff appealed the order
temporarily reducing defendant's support obligations and the order denying her
A-3447-22
3
reconsideration motion. We affirmed. [F.L. v. E-S.Y.], No. A-0411-20 (App.
Div. May 25, 2022).
On July 8, 2022, defendant again moved to temporarily suspend or reduce
his child-support obligation to "reimburse" him for alimony overpayments he
allegedly had made. Plaintiff cross-moved to compel the probation department
to audit defendant's support payments and for a review of the child-support
calculations as of September 30, 2020, when defendant's alimony obligation
ended, in accordance with the JOD.
In a September 9, 2022 order, the judge denied defendant's motion to
temporarily suspend obligations without prejudice, pending a "financial review
. . . to determine the full amount of child support and alimony arrears owed by
[d]efendant"; denied defendant's motion to temporarily reduce his child-support
obligation; and granted plaintiff's cross-motion. For the review of the child-
support calculations, the judge ordered:
Both parties are to submit complete Case Information
Statements [(CISs)], 2021 State and Federal tax returns,
2021 W[-]2's, 2021 1099's, and their last [three]
paystubs to the Court and serve same upon each other
[by] October 7, 2022. In the event that either party fails
to provide the Court with the required financial
information, the other shall provide an [a]ffidavit
setting forth his or her best estimate as to the other
party's income.
A-3447-22
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In accordance with the order, plaintiff submitted her CIS, tax returns, W-
2s, and paystubs. In her CIS, plaintiff reported she had been laid off by her
employer on September 9, 2022, "due to housing market and mortgage rate
hikes." She reported a gross income of $141,482.91 for the previous calendar
year and an average gross weekly income, including commissions and bonuses ,
based on her last three pay periods, of $1,426.66. Plaintiff also listed her gross
"Year-to-Date Earned Income," between March 1, 2022, and September 18,
2022, as $53,993.90. Based on that date range, she calculated and listed her net
average income per month, $6,586,51, and per week, $1,529.01. Due to her
unemployment, plaintiff stated her annual salary was $0.
Defendant submitted his CIS, W-2s, and paystubs. In his CIS, he reported
a gross income of $144,528 for the previous calendar year and an average gross
weekly income, including commissions and bonuses, based on his last three pay
periods, of $1,638.12. Defendant also listed his gross "Year-to-Date Earned
Income," between January 1, 2022, and September 30, 2022, as $112,000.
Based on that date range, he calculated and listed his net average income per
month, $6,376, and per week, $1,594.
In violation of the September 9, 2022 order, defendant failed to submit his
tax returns. Defendant sent the judge an email, in which he asserted he had not
A-3447-22
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submitted his tax returns because he had "filed joint 2021 tax returns with [his]
wife [who] refuse[d] to release [them] to [him]," apparently referencing his
current wife, not plaintiff. Defendant advised the judge he "suspect[ed] plaintiff
voluntarily quit [her] high paying job." He provided no support for that
assertion.
According to plaintiff, because defendant had failed to submit his tax
returns, she submitted an affidavit setting forth her best estimate of defendant's
income, pursuant to the September 9, 2022 order. That affidavit was not
included in the appellate record.
On April 12, 2023, the judge entered an order modifying defendant's
child-support obligation, increasing it to weekly payments of $374, effective
August 15, 2023.
On or about May 7, 2023, defendant moved for an adjustment of his child-
support obligation, based on his assertions his "actual weekly gross taxable
income" was $2,779.38 and annual income was $144,528 and plaintiff's
"reported weekly gross taxable income" was $2,720.83 and annual income was
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$141,482.91. He also asked the court to compel plaintiff "to disclose any
concealed income." 3
In support of that motion, defendant submitted his certification, to which
he attached copies of the April 12, 2023 order and the CISs he and plaintiff had
submitted pursuant to the September 9, 2022 order. He also attached as a
separate exhibit a document dated April 25, 2023, and entitled "Child Support
Guidelines – Sole Parenting Worksheet." On the worksheet, a weekly gross
taxable income of $833 was listed for plaintiff and $3,125 for defendant,
meaning 24% of the parties' combined income had been attributed to plaintiff
and 76% of it to defendant. The worksheet lists a weekly net child support
obligation for defendant of $374. The worksheet was not attached to the April
12, 2023 order and was dated nearly two weeks after entry of the order.
In his certification, defendant argued the judge had undervalued plaintiff's
weekly gross income by setting it at $833. In support of that assertion, defendant
3
Defendant did not include a copy of the notice of motion in the appellate
record. We based that description of the motion from the subsequent order
memorializing the judge's decision on the motion. In her appellate brief,
plaintiff characterized the motion as "a late motion . . . [for] reconsideration."
In his merits brief, defendant referred to it as a "motion to respectfully request
the Trial Court to consider using accurate income from both parties to calculate
child support." In his reply brief, he described the motion as a "regular motion
. . . not a motion for reconsideration."
A-3447-22
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calculated a weekly gross taxable income of $2,720.83 for plaintiff based on a
2021 annual income of $141,482.91 reported by plaintiff in her CIS. He also
questioned how she could afford the monthly expenses of $10,722.70 she
reported on her CIS if her weekly income was only $833. Defendant argued the
judge had overvalued his weekly gross income by setting it at $3,125. Defendant
used $144,528, the gross earned income for the previous year he had reported
on his CIS, to calculate a weekly gross income of $2,779.38. Defendant did not
include any other documents, such as copies of his tax returns, in support of his
motion for modification. According to defendant, that plaintiff on her CIS used
the period March 1, 2022, to September 18, 2022, instead of January 1, 2022, to
September 18, 2022, to report her earned income "raise[d] the question of
whether the plaintiff is attempting to conceal actual income."
In a certification submitted in opposition to the motion, plaintiff asserted
defendant had not submitted "a scintilla of proof or evidence to support his wild
unsupported accusations/allegations." Plaintiff certified she was still
unemployed.
In a reply certification, defendant accused plaintiff of "engaging in
deliberate reduction and evasion of child support payment calculation" and
faulted her for not submitting evidence of "reasonable efforts [of] trying to find
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jobs, and the vocational evaluation . . . to prove [her] inability to find a job." He
claimed the court failed to consider his purported prior period of unemployment
when it established his child-support obligation in the JOD, a judgment we
affirmed in 2018. See F.L., No. A-5115-15. He asked the court to consider
"plaintiff's vocational potential and income capacity," a request he had not made
in his initial certification. And for the first time, he provided copies of his 2021
tax returns as an attachment to the certification.
On June 14, 2023, the judge placed a decision on the record and entered
an order denying defendant's motion. The judge stated in his decision that "[t]he
calculations in child support w[ere] based on income of $[8]33 per week for the
plaintiff, $3,125 per week for the defendant[.] . . . [T]hose amounts were
provided by the respective parties. And those are the amounts that we used in
child support."
On July 24, 2023, defendant filed his notice of appeal, indicating he was
appealing from "[p]oint 23" of the April 12, 2023 order, in which the judge held
defendant's child-support obligation was $374 per week, and the entire June 14,
2023 order.
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II.
Our review of a Family Part judge's findings is limited. We "afford
substantial deference to the Family Part's findings of fact because of that court's
special expertise in family matters." W.M. v. D.G., 467 N.J. Super. 216, 229
(App. Div. 2021) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We review
a Family Part judge's imputation of income and child-support determination for
an abuse of discretion. Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div.
2015). "Reversal is warranted only if the findings were 'so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.'" Amzler v. Amzler, 463
N.J. Super. 187, 197 (App. Div. 2020) (quoting Rova Farms Resort, Inc. v. Invs.
Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We also review orders denying
reconsideration motions under an abuse-of-discretion standard. Branch v.
Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We review questions of law
de novo. Amzler, 463 N.J. Super. at 197.
The Family Part has authority under N.J.S.A. 2A:34-23 to modify child-
support awards. Spangenberg, v. Kolakowski, 442 N.J. Super. 529, 535 (App.
Div. 2015). 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.
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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)).
"[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 v. Martindell, 21 N.J. 341, 353 (1956)).
According to defendant, the motion he filed in May 2023 for an
adjustment of his child-support obligation that resulted in the June 14, 2023
order was a "regular motion . . . not a motion for reconsideration." As a "regular
motion," unlike a reconsideration motion, it did not toll the running of the time
to appeal the April 12, 2023 order. See R. 2:4-3(e). Accordingly, his attempt
to appeal from the April 12, 2023 order in his July 24, 2023 notice of appeal
fails because it was untimely. See R. 2:4-1(a).
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Viewed as a motion to modify his child-support obligation, the judge
correctly denied the motion. Defendant did not allege, much less demonstrate,
that a change of circumstances warranting relief occurred between the April 12,
2023 order and when he filed his motion the following month. See Lepis, 83
N.J. at 157. And defendant 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 in his motion. See Palombi v. Palombi,
414 N.J. Super. 274, 287-88 (App. Div. 2010).
Even if viewed, as plaintiff contends, as a motion for reconsideration,
defendant's appeal is without merit. In violation of the September 9, 2022 order,
defendant did not submit his tax returns. Because of that failure, defendant was
allowed, pursuant to the order, to submit an affidavit setting forth her best
estimate of his income. Defendant did not include a copy of that affidavit in the
appellate record. The Family Part judge rendered a decision, as memorialized
in the April 12, 2023 order, based on the information provided by the parties.
We have no basis, considering the record before us, to conclude his "findings
were 'so manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence as to offend the interests of justice.'" Amzler,
463 N.J. Super. at 197 (quoting Rova Farms, 65 N.J. at 484).
A-3447-22
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We also have no basis to reverse the June 14, 2023 order. In his moving
papers, defendant did not demonstrate "either 1) the [c]ourt ha[d] expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it [wa]s
obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Triffin v. SHS Group, LLC,
466 N.J. Super. 460, 466 (App. Div. 2021) (quoting Cummings v. Bahr, 295 N.J.
Super. 374, 384 (App. Div. 1996)). To support his claims about his income,
defendant finally submitted his tax returns as an exhibit to his reply certification.
But a party cannot use a reconsideration motion as a vehicle for presenting
evidence or arguments that could have been provided in the original motion.
Cummings, 295 N.J. Super. at 384.
And "[r]aising an issue for the first time in a reply brief is improper."
Berardo v. City of Jersey City, 476 N.J. Super. 341, 354 (App. Div. 2023)
(quoting Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super.
590, 596 (App. Div. 2001)). In addition to waiting until his reply certification
to submit his tax returns, defendant improperly raised other issues for the first
time in his reply brief, such as his unsupported allegation plaintiff was failing
to make reasonable efforts to find employment. The judge did not abuse his
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discretion in not considering defendant's belatedly-submitted returns and
belatedly-raised issues.
To the extent we have not otherwise commented on them, we have duly
considered defendant's other arguments and conclude they lack sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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