Opinion
DOCKET NO. A-1439-11T2
03-25-2013
MARIA R. ORTIZ, Plaintiff-Respondent v. LUIS H. ORTIZ, Defendant-Appellant.
John A. Albright, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1887-97.
John A. Albright, attorney for appellant.
Respondent has not filed a brief. PER CURIAM
Defendant appeals from the trial court's order denying his motion to emancipate his two children as of their eighteenth birthdays, in 2002 and 2008; to modify the child support obligation that remained before the second emancipation; and to terminate his alimony. He also appeals from the court's denial of his motion for reconsideration. We reverse and remand.
I.
We discern the following facts from the record. Plaintiff filed her divorce complaint in February 1997, after thirteen years of marriage. The parties' daughters, Rebecca and Aliza were born, respectively, in 1984 and 1990. While the divorce complaint was pending, a domestic violence final restraining order was entered against defendant. After a trial in 2002, the court entered a final judgment of divorce (FJD) on June 24, 2002.
We use pseudonyms to protect the children's privacy interests.
The court awarded plaintiff legal and residential custody of the children. Defendant was granted two overnights of parenting time with Aliza every other week, one mid-week dinner visit, and thirty days in the summer. Rebecca and her father were to determine parenting time with Rebecca.
Defendant was ordered to pay $133 weekly child support for the two children pursuant to the Child Support Guidelines. The court also ordered the parties to contribute to the children's post secondary education "pursuant to their respective incomes at the time that the children make their education choice." The court noted if the parties' incomes were unchanged, plaintiff would be responsible for 38.74 percent and defendant would be responsible for 61.26 percent, based on the apportionment of income reflected in the child support worksheet.
Although the FJD states that the worksheet was attached, it is not included in the record.
The FJD also required defendant to pay permanent alimony in the amount of $100 a week. Defendant owed almost $20,000 in support arrears as of the FJD. The court offset his right to an equitable share of plaintiff's retirement assets against his indebtedness, resulting in a $9,655 arrears balance.
According to defendant's July 16, 1997 case information statement, his prior year's earned income was $25,452.75 and plaintiff's was $26,614.49. We presume, based on the FJD, the court found after trial that defendant actually earned significantly more than plaintiff. The sixty-one percent and thirty-nine percent allocations of income would have been calculated after accounting for alimony. See Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2309 (2002).
By 2009, presumably based on cost of living increases, the child support obligation had increased to $160 a week. Apparently upon plaintiff's initiative, the court entered an order on April 29, 2009 declaring Rebecca emancipated as of May 1, 2008. The order stated, "Obligee, Maria Ortiz, agrees to emancipate child [Rebecca] as of 5/1/2008. Per FJOD dated June 24, 2002, support is not allocated. Child support to continue at $160/week without prejudice." The emancipation order did not indicate that plaintiff had served her application upon defendant, nor does the record reflect that the order was subsequently served on him. In connection with the instant motion, defendant certified he was not timely served with a copy of the order.
In July 2011, defendant filed his motion to emancipate the children as of their eighteenth birthdays, to recalculate support, and to adjust arrears. He also sought the termination of alimony.
Defendant certified he had not seen Rebecca since 1997. At some point, he moved to California. He was working there in 2007. He served in the Marines in the 1980s. He asserted he was homeless. His CIS and attachments reflected that he had earned $21,118 in 2010 as an equipment mechanic. However, he became unemployed near the end of the year, and received unemployment insurance of $1558 in 2010. As of February 2011, he continued to receive unemployment insurance that varied between $225 and $251 a week.
The CIS was apparently prepared over an extended period of time. The "date of statement" was November 01, 2010, but the CIS included his 2010 tax return, signed February 17, 2011. Defendant signed the CIS on March 7, 2011, and filed it in July 2011.
Defendant also alleged that his health had deteriorated since the divorce, and he had been declared twenty-percent disabled as a result of his military service, effective August 20, 2009. He included a December 14, 2010 determination of the United States Department of Veterans Affairs (VA). Notably, defendant did not include in his CIS or in any other document, the amount of his disability compensation. See United States Department of Veterans Affairs, Benefit Rates (Jan. 18, 2013) (setting benefits for veterans disability compensation), http://www.benefits.va.gov/COMPENSATION/rates-index.asp.
In opposition, plaintiff certified that Rebecca had been married June 30, 2004, but attended Rutgers as a full-time student until 2008. Aliza graduated from high school in 2008 and was a full-time student at Richard Stockton College. Her unofficial transcript reflects that she attended college full-time for the 2008-2009, 2009-2010, and 2010-2011 academic years, with a cumulative GPA of 3.27. Plaintiff certified that notwithstanding the FJD, she did not seek nor obtain contributions from defendant towards the children's college costs.
Although plaintiff did not submit a CIS, she asserted she was working only sixteen hours a week, earning less than $13 an hour. She stated she also had health problems, which she detailed. She denied defendant's allegations that she received financial support from others, and that she owned her own home. She stated she continued to pay for Aliza's health insurance.
According to a Child Support Enforcement System report printed July 21, 2011, defendant owed arrears of $64,979.24. On the other hand, $10,602.03 had been disbursed to plaintiff between January 1, 2010 and July 21, 2011. By 2011, child support had been adjusted to $163 a week.
After oral argument, the court declared Rebecca emancipated as of the date of her marriage, July 30, 2004. However, the court denied without prejudice any modification of child support due for Aliza thereafter. The court also denied defendant's motion to emancipate Aliza because defendant failed to establish that Aliza had "moved beyond the ambit of parental influence."
The court denied without prejudice defendant's request to terminate alimony. The court held that defendant's application was procedurally deficient as his CIS was "dated November 1, 2010 and is not current." Also, the court held defendant had not made a prima facie case of a substantial change in circumstances or that any change was "more than temporary."
Defendant moved for reconsideration and supplemented the record. He asserted he was no longer homeless, but was living with a friend. He included his 1997 CIS. He also asserted that his disability was permanent, and that he suffered from degenerative arthritis and osteopenia. He included a September 1, 2011 determination of the VA in response to defendant's appeal from the agency's previous disability determination. The VA "[i]ncreased [c]ompensation [g]ranted to 40%" effective July 1, 2011. The monthly entitlement amount is reflected as "XXX.XX" The letter stated, "We are paying you as a single veteran with no dependents."
Defendant also certified that he "cured the procedural defects noted by the Court, as I have submitted a current and prior CIS, with all documentation available to me." It is unclear whether defendant submitted a CIS that updated the one signed in March 2011 but dated November 2010. If so, it is not in the record before us.
Defendant attached the VA letter but did not certify that it was a true and accurate copy. It is unclear whether the original document indicated the monthly entitlement amount instead of "XXX.XX."
Defendant challenged the sufficiency of plaintiff's certification that Aliza remained in need of parental support. He also noted there was no proof of Rebecca's dependent status between her eighteenth birthday and her marriage. He argued that the plaintiff failed to meet her burden to establish that the children should not have been emancipated as of their eighteenth birthdays. He noted that plaintiff had greater access to information about the children.
Plaintiff responded that defendant was able to work, notwithstanding his disability, inasmuch as he continued to collect unemployment compensation, which is dependent upon a showing that the beneficiary is willing and able to work. She objected that defendant had failed to disclose the amount of his VA disability compensation. Plaintiff certified that "[Rebecca] was a full-time student until her marriage and after her marriage." She stated Aliza had been a full-time student since high school. Plaintiff asserted she continued to provide support for her daughters after they reached eighteen.
The court denied the motion for reconsideration, concluding defendant failed to establish that the court acted in an arbitrary, capricious or unreasonable manner. The judge concluded, "Plaintiff successfully rebutted the presumption of emancipation by providing [Aliza's] unofficial transcript as proof of enrollment in post secondary education." The court also declined to reconsider its decision regarding alimony, noting that notwithstanding defendant's disability determination, his collection of unemployment was "inconsistent with an individual's inability to maintain employment."
Defendant now raises the following points on appeal (omitting subpoints):
POINT IPlaintiff did not file opposition to the appeal.
THE MOTION COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ORDER TERMINATING OR RECALCULATING HIS CHILD SUPPORT OBLIGATION AND ARREARS, BECAUSE CHANGED CIRCUMSTANCES WERE ESTABLISHED BOTH PRIMA
FACIE AND CONCLUSIVELY.
POINT II
THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ORDER TERMINATING HIS ALIMONY OBLIGATION, WITHOUT THE BENEFIT OF A PLENARY HEARING, BECAUSE DEFENDANT'S DISABILITY DETERMINATIONS, UNEMPLOYMENT, AND
HOMELESSNESS ESTABLISHED PRIMA FACIE CHANGED CIRCUMSTANCES.
POINT III
THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S APPLICATIONS ON PROCEDURAL GROUNDS, WHEN THE CASE INFORMATION STATEMENT FILED WITH THE FIRST MOTION WAS SUBSTANTIALLY CURRENT, AND ANY PROCEDURAL DEFICIENCIES PRESENT IN THE FIRST MOTION WERE CURED IN THE SECOND.
II.
A.
We begin with the standard of review. We are required to accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). However, we may exercise a more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made"). We may vacate a trial court's findings regarding a motion to modify alimony obligations if we conclude the court "failed to consider 'all of the controlling legal principles[.]'" Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (citations omitted); see also Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (stating "if the court ignores applicable standards, we are compelled to reverse and remand for further proceedings"). We owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).
A judge may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits. Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div. 1991), modified on other grounds, 128 N.J. 318 (1992). When the evidence discloses genuine material issues of fact, a Family Court's failure to conduct a plenary hearing to resolve those issues is a basis to reverse and remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982).
B.
Defendant's application to modify support is governed by well-settled principles. A party seeking to modify spousal or child support has the burden to present a prima facie showing of changed circumstances to warrant discovery. See Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Support orders are always subject to review and modification upon such a showing. Id. at 146; see also N.J.S.A. 2A:34-23 (stating that child support orders "may be revised and altered by the court from time to time as circumstances may require").
Regarding alimony, the court must determine whether there has been a "substantial impairment of the [obligee's] ability to maintain the standard of living to which they are entitled." Lepis, supra, 83 N.J. at 160. "When support of an economically dependent spouse is at issue, the general considerations are the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 152. A trial court must closely examine "the supported spouse's ability to contribute to his or her own maintenance, both at the time of the original judgment and on applications for modification." Id. at 155.
With respect to child support, "[o]nce a prima showing of changed circumstances has been made, the standard that governs the setting of a new child support order is the same standard the applies at the time of the original judgment of divorce." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 350 (App. Div. 2009) (citing N.J.S.A. 2A:34-23(a)). The key factor is the parent's ability to pay, although "the needs and bests interests of the child are equally controlling." Ibid.
There is no mathematical formula for determining what change of circumstance is significant. See Walles v. Walles, 295 N.J. Super. 498, 510, 513 (App. Div. 1996) (affirming modification where payor's gross income dropped almost fifty percent); Beck v. Beck, 239 N.J. Super. 183, 186, 189-90 (App. Div. 1990) (finding changed circumstances where supporting spouse's income had "declined dramatically over the last several years," dropped from $155,000 to $118,000 in one year, college costs reduced available income, and the supported spouse's income had risen). Moreover, a temporary change in a former spouse's income does not warrant modification. Innes v. Innes, 117 N.J. 496, 504 (1990); Lepis, supra, 83 N.J. at 151. There is "no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation." Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006) (rejecting request to modify alimony and child support filed twenty months after entry of judgment). The trial court exercises broad discretion in this area. Id. at 21.
Turning to the issue of emancipation, the essential inquiry is "whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). Whether a child should be emancipated is a fact-sensitive determination. Ibid. "Emancipation can occur upon the child's marriage, induction into military service, by court order based on the child's best interests, or by attainment of an appropriate age." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982) (citations omitted).
Reaching the age of majority, eighteen, creates a prima facie case for emancipation. "Generally parents are not under a duty to support children after the age of majority." Ibid. Thus, upon a showing the child has reached the age of majority, the opponent of emancipation must show there is basis to continue support. Filippone, supra, 304 N.J. Super. at 308 (stating "although there is a presumption of emancipation at age eighteen, that presumption is rebuttable").
We have held that a child's full-time attendance in post-secondary education may be a basis to delay emancipation. "[W]hile parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support." Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (citations omitted); see also Filippone, supra, 304 N.J. Super. at 311-12. The Supreme Court has identified several factors governing contribution toward college costs. Newburgh, supra, 88 N.J. at 545. However, these need not be applied if the proportionate shares have already been established by agreement or judgment.
In assessing the child's academic performance, participation, and commitment, the court will often require access to the child's academic records. A custodial parent receiving support for the child is obliged to provide confirmation to the supporting parent of the number of academic credits a child is taking. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006); see also Van Brunt v. Van Brunt, 419 N.J. Super. 327, 333 (Ch. Div. 2010) (holding that a child may not invoke federal statutory right to privacy over her college records, blocking her father's ability to verify her education status, while "simultaneously asserting that she is unemancipated and entitled to mandatory child support and college contribution" from him). The courts will also enforce parents' agreement to support a child past majority, "if fair and equitable." Dolce v. Dolce, 383 N.J. Super. 11, 16, 18 (App. Div. 2006) (parties agreed in property settlement agreement that emancipation would occur at age twenty-three, unless the child earlier married, graduated from college, died, or entered the military).
C.
We turn first to the issue of emancipation and modification of child support. Defendant argues plaintiff's proofs that Rebecca and Aliza remained dependent on their parents after reaching eighteen were insufficient. We agree. Plaintiff bears the burden to overcome the presumption of emancipation.
As for Rebecca, plaintiff presented no documentary proof of her attendance at Rutgers. Nor did plaintiff present any documentation, such as tax returns or student aid applications, to establish Rebecca's financial dependence. Rebecca apparently married without her mother's knowledge or approval, which may be viewed as a significant fact that she had already moved beyond her mother's sphere of influence. Plaintiff was obliged to present more than her own conclusory allegation that Rebecca remained unemancipated until her marriage.
Plaintiff presented proof of Aliza's college attendance. However, her assertion of financial dependence for tuition, automobile costs, and health insurance is also unsupported by conclusive proof. As with Rebecca, financial documentation should have been required.
Defendant established a prima facie case for emancipation based on the children's age. That should have entitled defendant to reasonable discovery. Cf. Lepis, supra, 83 N.J. at 157. Moreover, in this case, plaintiff and the children have greater access to relevant information about whether the children remained within plaintiff's sphere of influence. See J.E. ex rel. G.E. v. State, 131 N.J. 552, 569-70 (1992) ("We generally have imposed the burdens of persuasion and production on the party best able to satisfy those burdens. . . . Our decisions have recognized that the party with greater expertise and access to relevant information should bear those evidentiary burdens.") The scope of appropriate discovery, once plaintiff has satisfactorily rebutted the presumption of emancipation, is left to the sound discretion of the trial court. See Piniero v. N.J. Div. of State Police, 404 N.J. Super. 194, 204 (App. Div. 2008) (stating trial court has broad discretion to determine scope of discovery).
Once the eldest child was emancipated, defendant was entitled to a recalculation of child support for the remaining child. Clearly, the emancipation of one of two children is a significant change of circumstances warranting a modification of child support that was calculated based on the support of both. Although the 2009 order noted that the child support was "not allocated" between the two children, the support was based on the guidelines calculation in the FJD. Pursuant to the guidelines, the support amount for two children is roughly fifty percent higher than the support for one. Pressler, Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2333 (2002).
Upon Rebecca's emancipation, if Aliza were older than eighteen and remained unemancipated, child support would need to be calculated by applying the statutory factors, N.J.S.A. 2A:34-23a, and not the child support guidelines, unless she lived at home and commuted to college. Pressler, Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2559 (2013) ("These child support guidelines are intended to apply to children who are less than 18 years of age[.] . . . The child support guidelines may be applied in the court's discretion to support for students over 18 years of age who commute to college."). The prohibition against retroactive modification of child support, N.J.S.A. 2A:17-56.23a, does not bar the recalculation of support to account for Rebecca's emancipation. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) (stating that N.J.S.A. 2A:17-56.23a does not "bar termination of child support retroactively to the time a child became emancipated").
Although retroactive reduction of child support is not prohibited by N.J.S.A. 2A:17-56.23a, the trial judge retains equitable power to fashion orders to avoid injustice. In particular, the court may consider whether principles of laches apply, given defendant's delay in seeking Rebecca's emancipation until nine years after her eighteenth birthday, and given plaintiff's potential reliance on defendant's inaction. See, e.g., L.V. v. R.S., 347 N.J. Super. 33, 39-40 (App. Div. 2002) (discussing principles of laches). Although we do not have the record of the divorce trial or the court's May 28, 2002 written decision, principles of res judicata or issue preclusion may apply, if the issue of emancipation were considered at the trial. We note the FJD was entered in June 2002, shortly before Rebecca's eighteenth birthday. Rather than address Rebecca's emancipation, the court ordered both parties to contribute to her college costs, as well as Aliza's. We also express no opinion on whether plaintiff may now seek from defendant his proportionate share of the children's higher education expenses, consistent with the terms of the FJD, to the extent the children remained unemancipated while in college.
D.
With respect to defendant's request to terminate alimony based on a change of circumstances, we conclude the court mistakenly exercised its discretion in determining that defendant had failed to present a prima facie case of a significant and permanent change in circumstances. Rather, we conclude there was a sufficient showing to trigger a requirement that plaintiff file a CIS, and the parties engage in appropriate discovery. Defendant cured the procedural deficiency in his initial filing by submitting his 1997 CIS, and clarifying that the CIS he filed with his motion, although bearing a November 2010 "Date of Statement," reflected a sufficiently current picture of his finances. It included his 2010 tax return, and 2011 pay stubs.
Defendant presented the court with evidence that the VA had determined he was forty percent disabled. The VA initially determined he was twenty percent disabled. Based on the diagnosis — degenerative arthritis — defendant has made a prima facie showing that the disability is not a temporary one. We recognize defendant continued to work in 2010, although his twenty percent disability was effective in 2009; and he has represented a continuing ability to work in order to obtain unemployment compensation. Nonetheless, a forty percent disability may impact the nature of defendant's employment, the amount of work he is capable of performing, particularly given his vocation as an equipment mechanic, and his future earning capability.
Defendant's 2010 tax return indicated an income of $22,541 — almost $3000 below his $25,453 annual income, unadjusted for inflation, earned in 1996. We also suspect that the trial court in its divorce decision imputed an income to defendant that was significantly higher than $25,453, given the court ordered defendant to pay a total of $233 a week in support, or over $12,000 a year. We do not have the court's opinion nor the child support worksheet to be able to ascertain the income the court attributed to defendant. Moreover, given inflation, the impact of defendant's reduction in earnings is even more significant.
The Consumer Price Index for New York and Northeastern New Jersey rose from 163.1 in 1996 to 243.8 in 2011, when defendant filed his motion. New Jersey Lawyer's Diary and Manual 411 (2013). Also a reflection of increased cost of living, defendant's child support obligation rose from $133 to $163 between 2002 and 2011.
--------
We recognize plaintiff's right to conduct discovery of defendant's financial situation, including his VA benefits. Conceivably, these benefits offset any diminution in income resulting from defendant's disability. We also recognize that plaintiff's own financial setbacks are relevant in considering defendant's application. However, defendant has made a prima facie showing of a significant and permanent change in circumstances warranting further proceedings.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION