Salome Montes Ward v. Anthony Vollaro

• Court: New Jersey Superior Court Appellate Division
• Decided: June 11, 2025
• Docket: A-2594-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2594-23

SALOME MONTES WARD,

Plaintiff-Respondent,

v.

ANTHONY VOLLARO,

Defendant-Appellant. _________________________

Submitted May 12, 2025 – Decided June 11, 2025

Before Judges Sabatino and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0350-12.

Fava Law, LLC, attorneys for appellant (Sandra C. Fava, of counsel and on the briefs).

Sarno da Costa D'Aniello Maceri Webb, LLC, attorneys for respondent (Scott D. Danaher, of counsel and on the brief; Michelle Wortmann, on the brief).

PER CURIAM Defendant Anthony Vollaro appeals from the Family Part's March 14,

2024 order denying his request for modification or termination of alimony,

retroactive modification of alimony, modification of child support, retroactive

modification of child support, and counsel fees. He contends the trial court erred

in finding he failed to present a prima facie case of changed circumstances

warranting modification or termination of his post-marital support obligations

and in finding he was not entitled to counsel fees. Because we conclude

defendant presented a prima facie case of changed circumstances, we reverse

the trial court's order and remand for discovery and a plenary hearing if

necessary, consistent with this opinion. We vacate the order denying counsel

fees without prejudice, pending further developments on remand.

I.

The parties were married for approximately seventeen years, from

September 14, 1996, until their divorce on August 5, 2013. There are two now-

emancipated children born of the marriage. The parties voluntarily entered into

a Marital Settlement Agreement ("MSA"), incorporated into their Final

Judgment of Divorce, where defendant agreed to pay limited duration alimony

to plaintiff in the amount of $175,000 a year, calculated upon a base salary of

$580,000, and agreed to pay plaintiff an additional twenty percent of any

A-2594-23 2 additional income earned over this base salary until the earlier occurrence of

either party's death, plaintiff's remarriage, or July 31, 2028. Additionally,

defendant agreed to pay plaintiff child support in the amount of $36,000 a year

and three percent of any "additional earned income," also calculated from his

base salary of $580,000. Child support was to continue until the children's

respective emancipation, where defendant's obligation would be reduced by

$18,000 per year upon the emancipation of each child.

In August 2019, the parties' older child began attending college. This

prompted defendant to inform plaintiff via text message and letter of his request

to discuss modifying his child support obligation to reflect their daughter's

attendance at college. In July 2020, defendant filed a motion to compel

enforcement of Paragraph 81 of the parties' MSA, which provides "[i]n the event

that they cannot resolve any dispute between them, [defendant] and [plaintiff]

shall participate in at least one mediation session before either brings an

application to the [c]ourt, except in the event of an emergency." Defendant

claims this motion concerned mediating the issue of his child support obligation

regarding his older child attending college. Mediation was unsuccessful, and in

2021, defendant's younger daughter began attending college. Defendant's

A-2594-23 3 daughters graduated from college in December 2022 and May 2024,

respectively, and at the time of this appeal they are both emancipated.

Amid the parties' mediation attempts regarding defendant's child support

obligation, defendant was notified by his employer on March 11, 2022, that his

salary of $600,000 was to be reduced by approximately fifteen percent to

$512,000. Soon after, defendant was notified on July 5, 2022, that he would be

terminated on January 5, 2023, without severance. At the time, defendant was

paying marital and child support pursuant to his MSA according to the base

salary of the MSA, which was $580,000.

On November 2, 2023, defendant filed in the Family Part the now motion

on appeal to modify his support obligations. The motion included a request to

modify his child support obligations at this time, his youngest daughter was not

yet emancipated—and for retroactive modification of his child support for each

daughter's respective time in college. The motion also included a request for

modification or termination of defendant's alimony obligation and for

retroactive modification of his alimony obligation based upon changed

circumstances, and for counsel fees.

Oral argument on the motion was heard on January 19, 2024. Defendant

argued his children's respective attendance at college and his termination of

A-2594-23 4 employment amounted to changed circumstances warranting modification of

both his support obligations. Additionally, with respect to his alimony

obligations, defendant questioned plaintiff's need for such payments, citing her

ownership of several properties totaling over four million dollars, her ability to

speak four languages, her having a master’s degree, and not working since the

parties' divorce.

In a written order dated March 14, 2024, the Family Part denied

defendant's motion in its entirety. It found defendant's unemployment was only

temporary, which did not amount to "changed circumstances" warranting

modification of his child support obligation, or modification or termination of

his alimony obligation, or any retroactive modification of his alimony

obligation. The trial court also found defendant was not entitled to retroactive

modification of his child support obligations because "[w]hile the expenses as

to the children may have changed upon their entrance to college, it does not

mean that the financial burden on the [p]laintiff decreased." Finally, the trial

court denied defendant's request for counsel fees, finding no bad faith on

plaintiff's part warranting such relief. This appeal followed.

A-2594-23 5 II.

"Our review of a Family Part judge's findings is limited[,] . . . 'afford[ing]

substantial deference to the Family Part's findings of fact because of that court's

special expertise in family matters.'" Voynick v. Voynick, 481 N.J. Super. 207,

220-21 (App. Div. 2025) (quoting W.M. v. D.G., 467 N.J. Super. 216, 229 (App.

Div. 2021)). Pursuant to this standard, "we are bound to uphold a finding that

is supported by sufficient credible evidence in the record." Moynihan v. Lynch,

250 N.J. 60, 90 (2022). "We will reverse only if we find the [court] clearly

abused [its] discretion." Voynick, 481 N.J. Super. at 221 (alterations in original)

(quoting Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012)).

"We apply that deference to a Family Part judge's decision regarding a

motion to amend a marital-support obligation," Ibid.., or a child support

obligation, Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). "Thus,

a Family Part judge's decision regarding a support obligation should not be

disturbed unless 'the court made findings inconsistent with the evidence or

unsupported by the record or erred as a matter of law.'" Voynick, 481 N.J.

Super. at 221 (quoting Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div.

2013)). We review questions of law and statutory interpretation decisions de

novo. See Cardali v. Cardali, 255 N.J. 85, 107 (2023).

A-2594-23 6 A. Changed Circumstances

N.J.S.A. 2A:34-23 grants the Family Part authority to modify alimony and

child support awards. Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535

(App. Div. 2015). The statute provides alimony and child support orders "may

be revised and altered by the court from time to time as circumstances may

require." N.J.S.A. 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)). If the party seeking modification presents a

prima facie case of changed circumstances, a court may order discovery, and a

plenary hearing if necessary, to determine whether there are sufficient changes

in the need for support and ability to provide support to warrant modification or

termination. Miller v. Miller, 160 N.J. 408, 420 (1999). Our courts have

previously recognized situations giving rise to a prima facie case of changed

circumstances, such as an "increase or decrease in the supporting spouse's

income," Lepis, 83 N.J. at 151, and "maturation of a child and his or her

changing needs," J.B. v. W.B., 215 N.J. 305, 313 (2013).

When assessing changed circumstances, a trial court must examine the

parties' current situation and compare it to the situation when the support

A-2594-23 7 obligations were initially entered. Beck v. Beck, 239 N.J. Super. 183, 190 (App.

Div. 1990) ("[I]t is clear that the 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."); see also Deegan v. Deegan, 254 N.J. Super.

350, 354-55 (App. Div. 1992) ("An analysis of 'changed circumstances' is not

limited to what the parties might have contemplated at the time of the divorce

. . . . [but rather] 'whether the change in circumstances is continuing and whether

the agreement or decree has made explicit provision or the change.'"(quoting

Lepis, 83 N.J. at 152)). "[T]he same legal principles of changed circumstances

. . . apply to both a termination and modification of a[] [support] obligation

. . . ." Voynick, 481 N.J. Super. at 223. The proof required to establish a prima

facie case of changed circumstances is not rigorous. See Temple v. Temple, 468

N.J. Super. 364, 370-71 (App. Div. 2021) ("[I]f . . . a movant must check off [all

statutory factors] to meet the burden of presenting a prima facie case, a finding

of [changed circumstances] will be as rare as a unicorn. . . . [D]etermining

whether a prima facie case has been presented is far less mechanical.").

The record indicates defendant was notified on March 11, 2022, his salary

of $600,000 was to be reduced by approximately fifteen percent to $512,000,

A-2594-23 8 and he was later notified on July 5, 2022, the was to be terminated on January

5, 2023, without severance. At the time, defendant was paying marital and child

support pursuant to his MSA, which stated defendant's base salary was then

$580,000. Defendant's 2022 reduction in salary and subsequent 2023

termination reflect a "decrease in the supporting spouse's income" when

compared to defendant's base salary of $580,000, and the trial court erred in

concluding defendant did not present a prima facie case of changed

circumstances. Lepis, 83 N.J. at 151. Moreover, although the trial court

correctly noted we "consistently reject[] requests for modification based on

circumstances which are only temporary or which are expected but have not yet

occurred," ibid., it incorrectly held defendant failed to present a prima facie case

of changed circumstances over a year after he had been terminated and

prematurely determined defendant's unemployment was "temporary" without

further discovery or a plenary hearing.

With defendant having established a prima facie case of changed

circumstances, the trial court was compelled to order discovery to review

whether defendant has employed his best efforts to find comparable

employment, and whether he was entitled to modification of alimony pursuant

to the factors outlined in N.J.S.A. 2A:34-23(k). On appeal, defendant maintains,

A-2594-23 9 due to his age, he is unable to replace the significant salary he was earning at

the time the parties agreed to the obligations in the 2013 MSA. This raises "a

genuine issue of material fact" as to whether defendant's unemployment is

temporary, or whether he is voluntarily underemployed, which necessitates

discovery and perhaps a plenary hearing, where credibility determinations could

be made. Bermeo v. Bermeo, 457 N.J. Super. 77, 83 (App. Div. 2018) (citing

Lepis, 83 N.J. at 159) ("[A] movant is entitled to a plenary hearing . . . when

demonstrating the existence of a genuine issue of material fact entitling the party

to relief through competent supporting documents . . . .").

B. Retroactive Modification of Alimony

Retroactive reduction of alimony payments is generally "left to the sound

discretion of the trial judge." Walles v. Walles, 295 N.J. Super. 498, 514 (App.

Div. 1996). As such, we decline now to determine whether defendant is entitled

to retroactive modification. Instead, we await the discovery after remand for the

trial court to determine whether the extent and impact of defendant's reduction

in salary warrants retroactive modification or termination of his alimony

obligation to a date earlier than the filing of his motion. We therefore vacate

the trial court's denial of defendant's request for retroactive modification of

alimony and defendant's request for modification or termination of alimony and

A-2594-23 10 remand for discovery and a plenary hearing, if necessary. The trial court may

reconsider the retroactivity issue after the record is more fully developed.

C. Modification of Child Support

Defendant's motion also sought modification of child support. "[A] child's

attendance at college is a change in circumstance warranting review of the child

support amount." Jacoby, 427 N.J. Super. at 113. Although "there is no

presumption that a child's required financial support lessens because he or she

attends college," trial courts are required to "assess all applicable facts and

circumstances, weighing the factors set forth in N.J.S.A. 2A:34-23(a)," when

presented with an application to amend child support upon a child's college

attendance. Ibid.

Here, the parties stipulate their two children began attending college in

2019 and 2021, respectively. Pursuant to the express terms of the MSA,

defendant was required to pay $36,000 a year in child support for his two

daughters until his obligation would be reduced by $18,000 upon the

emancipation of each child, and the parties do not dispute that defendant

faithfully paid his support obligations while their children were unemancipated.

Because "[a] child's attendance at college is a change in circumstance warranting

review of the child support amount," defendant has presented a prima facie case

A-2594-23 11 of changed circumstances as to the amount of child support needed by each

child. Ibid. However, at the time of this appeal, both children are emancipated,

which renders defendant's request to modify his current child support

obligations moot.

Notwithstanding the prospective mootness of defendant's request to

modify his child support obligations, defendant also sought retroactive

modification for child support he paid for his older daughter during her college

attendance from August 2019 to December 2022, and for child support he

provided his younger daughter during her college attendance from August 2021

to May 2024. Although defendant filed a notice of motion to enforce the MSA's

mediation provision on July 14, 2020, allegedly to discuss modifying child

support amicably, he did not move to modify his child support obligation until

November 2, 2023. Defendant's July 14, 2020 notice of motion did not mention

modification or termination of child support. The notice of motion provided

that defendant sought to compel plaintiff "to cooperate in scheduling mediation

pursuant to Paragraph 81 of the parties" MSA, or, in the alternative, if the parties

could not agree on which mediator to use, sought to require "the parties to each

submit two" potential mediators for the Family Part to choose from and also

requested counsel fees and costs.

A-2594-23 12 Pursuant to N.J.S.A. 2A:17-56.23a, defendant is not entitled to retroactive

modification of his child support obligations (as distinct from alimony) "except

with respect to the period during which there is a pending application for

modification, but only from the date the notice of motion was mailed." See also

Burns v. Edwards, 367 N.J. Super. 29, 50 n.4 (App. Div. 2004) ("N.J.S.A.

2A:17-56.23a and 42 U.S.C. § 666(a)(9)(C) prohibit retroactive modification of

child support orders except with respect to the period during which there is a

pending application for modification, but only from the date the notice of motion

was filed."). Accordingly, although defendant has presented a prima facie case

of changed circumstances as to his child support obligations, any retroactive

modification sought can only commence after November 2, 2023, unless the trial

court finds, upon remand, that plaintiff had notice of defendant’s intention to

seek modification, or that the parties’ agreement clearly contemplated the

termination of child support to an earlier date without requiring a motion.

In sum, we reverse the trial court's decision finding no changed

circumstances and remand the matter for discovery, and a plenary hearing, if

necessary, to determine whether defendant has diligently sought comparable

employment, whether he is voluntarily under-employed, and examining among

other things, whether he is entitled to modification or termination of his alimony

A-2594-23 13 obligation. We also reverse the trial court's decision denying defendant's request

for retroactive alimony and retroactive child support and remand to the trial

court for determinations consistent with this opinion. We take no position

regarding the substantive outcome of those issues. Meanwhile, the trial court's

order denying counsel fees is vacated, subject to further developments on

remand.

Reversed and remanded. We do not retain jurisdiction.

A-2594-23 14