ORNELLA RODOLICO VS. TOTOWA BOARD OF EDUCATION,WASHINGTON PARK SCHOOL(L-542-14, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 31, 2017
• Docket: A-4140-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1440-15T2

D.L.,

Plaintiff-Respondent,

v.

W.L.,

Defendant-Appellant. _________________________

Argued March 21, 2017 — Decided April 7, 2017

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-14-05.

Philip B. Vinick argued the cause for appellant.

Adelaide Riggi, argued the cause for respondent (Snyder Sarno D'Aniello Maceri Da Costa, LLC, attorneys; Ms. Riggi, of counsel and on brief; Sarah Davis, on the brief).

PER CURIAM

Defendant W.L. appeals from an October 20, 2015 Family Part

order, entered after affording oral argument, finding that he did not make a prima facie showing of substantial changed circumstances

warranting a review of his current child support obligation of

$331 per week, $17,212 per year, for his disabled adult son.

Defendant also pays 80 percent of their son's unreimbursed medical

expenses. We affirm substantially for the reasons expressed by

Judge Theresa E. Mullen in her statement of reasons attached to

the order.

Defendant, a seventy-four-year-old licensed psychologist who

is a sole proprietor of his own practice, has an ongoing obligation

to support his fifty-year-old son who suffers from paranoid

schizophrenia and was adjudicated permanently disabled by the

Social Security Administration in 1989. Defendant is remarried

and has a seventeen-year-old daughter with his second wife. He

claims that managed care has precipitated the permanent decline

of his income from $150,000 in 2006 to $36,000 in 2014 because it

limits both the amount of money earned per appointment and the

number of sessions his patients may attend. According to

defendant, managed care reduced his $150 to $200 per session fee

to between $60 to $90 per session.

In June 2006 the parties stipulated, after testimony had been

elicited in a plenary hearing, that defendant earned $150,000. In

2015, defendant moved to reduce or terminate his child support

payments due to a change in circumstances. Contrary to Rule 5:5-

2 A-1440-15T2 4(a), he did not attach his 2006 Case Information Statement (CIS)

to his application, although he did provide a current CIS and tax

returns reflecting that he paid himself an income of $37,169 in

2013, made mandatory and discretionary IRA withdrawals and

received $26,685 from Social Security. On his current CIS he

listed his expenses as approximately $73,000, but explains in his

appellate brief that, contrary to the CIS instructions, those

include the expenses for his wife and daughter. Defendant's 2014

business tax return reflects more than $112,000 in business

expenses. His wife earned approximately $78,000 that year.

Plaintiff argued that, based on defendant's submissions, he earned

a real income of at least $132,832, without counting the cash

income she alleged he received.

Quoting Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div.

2006), Judge Mullen stated that as a self-employed obligor

defendant's income should be viewed "more expansively" because he

is in "a better position to present an unrealistic picture of his

or her actual income than a W-2 earner." She noted that although

defendant claimed $37,169 as income on his CIS, his business tax

deductions include his benefits of $21,487, which were "for himself

as he is his only employee." The judge also mentioned that

defendant's personal expenses totaled more than $6066 per month.

3 A-1440-15T2 Finally, the judge stated that plaintiff was not required to

provide any financial documentation "until [d]efendant meets his

burden to prove a changed circumstance." See Donnelly v. Donnelly,

405 N.J. Super. 117, 132 (App. Div. 2009) (citing Lepis v. Lepis,

83 N.J. 139, 157 (1980)).

When we "review[] decisions granting or denying applications

to modify child support, we examine whether, given the facts, the

trial judge abused his or her discretion." 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)). The Family Part's decision should not be

"disturbed unless it is manifestly unreasonable, arbitrary, or

clearly contrary to reason or to other evidence, or the result of

whim or caprice." Jacoby, supra, 427 N.J. Super. at 116 (quoting

Foust, supra, 340 N.J. Super. at 315-16).

Judge Mullen emphasized that determining changed

circumstances "necessarily entails knowing the starting point

before the change, that is, the point from which the change can

be measured." Foust, supra, 340 N.J. Super. at 316. Defendant

did not provide Judge Mullen with a transcript of the 2006

testimony, nor any prior CIS from any of his seven prior motions

to reduce support or any other expense or tax information for

2006. If, indeed, his 2006 CIS was lost, he should have stated

his efforts to obtain it.

4 A-1440-15T2 We do not intend by this opinion to preclude defendant from

submitting another application to reduce child support, with the

proper information and attachments to explain any gaps or

insufficiencies, which he failed to supply in his April 2015

application.

Affirmed.

5 A-1440-15T2