LENORE N. ZANGRILLI VS. JASON D. ZANGRILLI (FM-16-1553-11, PASSAIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3815-17T2
LENORE N. ZANGRILLI,
Plaintiff-Respondent,
v.
JASON D. ZANGRILLI,
Defendant-Appellant.
_______________________
Argued October 11, 2018 – Decided November 9, 2018
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FM-16-1553-11.
Elizabeth D. Burke argued the cause for appellant
(Ziegler, Zemsky & Resnick, attorneys; Steven M.
Resnick and Ruth Kim, on the briefs).
Tiffany K. Ornedo argued the cause for respondent
(Northeast New Jersey Legal Services, attorneys;
Tiffany K. Ornedo, of counsel and on the brief).
PER CURIAM
Defendant Jason D. Zangrilli appeals from the March 16, 2018 order
denying his application to modify alimony based on changed circumstances as
well as the April 13, 2018 order setting his child support based on the income
imputed to him in the property settlement agreement (PSA).
The parties were married on August 28, 1994 and had three children:
two girls born in 1999 and 2003; and a boy born in 2005. During the
marriage, defendant was employed as a creative director of marketing in New
York City, earning between $157,000 and $285,000 annually. In December
2011, defendant was involuntarily terminated from his position. He continued
to work on a freelance basis, and also operated his own consulting business.
Plaintiff did not work throughout the marriage until she obtained employment
in 2012 as a client services representative, earning $44,000 annually.
The parties divorced on January 3, 2013, and the judgment of divorce
incorporated the terms of a PSA. For purposes of calculating alimony and
child support, the PSA imputed an income of $40,000 to plaintiff, and
$150,000 to defendant. The PSA provides:
[I]n the event that the [defendant] secures employment
earning an actual gross income of less than $150,000
per year, the [defendant]’s alimony obligation shall
not decrease and a gross income of $150,000 shall be
imputed to the [defendant] for the purposes of
calculating alimony. However, in the event that the
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[defendant] secures employment earning an annual
gross income exceeding $150,000 per year, the
[defendant]’s alimony obligation shall be modified.
The parties further agreed to provide each other with monthly status reports
describing job search efforts.
Defendant agreed to pay plaintiff limited duration alimony (LDA) for a
period of fifteen years. He agreed to pay $544.87 per week in 2013 and
$705.12 per week for the remainder of the fifteen-year term. He agreed to pay
child support throughout 2013 in the amount of $314 weekly, and starting in
2014 until emancipation in the amount of $338 weekly.
The parties agreed that a substantial change in circumstances would
permit either party to seek modification of alimony provisions pursuant to
Lepis v. Lepis, 83 N.J. 139, 151 (1980). The PSA provided:
The parties acknowledge that they understand that a
substantial change of circumstances would permit
either party to make an application to a Court of
competent jurisdiction to modify the alimony
provisions set forth in this agreement. Neither party
has waived his or her right to seek a modification of
alimony as provided for under the case of Lepis.
On October 3, 2013, defendant was found in violation of litigant's rights
for his failure to pay alimony and child support, his outstanding obligations
amounting to $19,393.89, as well as for his failure to provide proof of income
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and employment pursuant to the PSA. Defendant was also ordered to pay
counsel fees. Defendant sought modification of his support obligations based
on his reduced income as well as a reduction in child support based upon the
emancipation of his oldest child.
In December 2011, defendant was involuntarily terminated from his
position. He said he was unable to secure work in advertising due to the
changing landscape of the job market, that his position had been largely
outsourced by robotics, and that he is "aged out of the advertising industry" at
47 years old. Defendant obtained employment as a truck driver in October
2017 in part because the job did not require expensive training and offered
more stability than the advertising industry. Defendant detailed his financial
situation and his efforts to find employment. He also retained an expert who
prepared a vocational evaluation and earning capacity assessment. Defendant
presented proof of job applications sent between January and June 2017,
resumes, and networking efforts. He certified he had sent over 600 job
applications between December 2011 and June 2017, and that he had also been
operating a consulting business in an effort to meet his support obligations.
He had attended seminars and continuing educational opportunities in his field
before changing careers. He had changed careers to obtain more reliable
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employment. Defendant's anticipated income as a truck driver, which is
determined by mile at a rate of forty-two cents per mile, is between $54,600
and $65,520, and he requested that the court impute an income to him of
$60,000 for purposes of recalculating his support obligations. Defendant also
provided his tax returns from 2012 to 2016 and certified that he had filed for
bankruptcy. He had liquidated his savings and began living with his aunt; he
had $556.13 in his checking account and $16,500 in credit card debt.
Defendant had depleted his retirement accounts, savings accounts, life
insurance and stock holdings in order to meet his support obligations.
Defendant provided the following chart in his application, demonstrating
his fluctuation in salary:
2012: $31,651 (includes unemployment)
2013: $75,835 (includes unemployment)
2014: $151,247
2015: $148,065
2016: $37,088
2017: $18,420
Defendant's vocational assessment expert opined that defendant:
has made a successful transition from his prior
occupation to an unrelated occupation . . . [which] was
necessitated by his lack of work and earnings in his
prior occupation as a Creative Art Director, due in
large measure to technological changes in the
advertising industry and the limited number of
opportunities presently and projected for the future in
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this field. Although his current occupation is lower
paying than his prior creative work, it is steadier work
with ample opportunity for sustained employment and
wage growth over time.
The expert recommended that defendant continue working as a truck driver.
The motion court issued an order denying defendant's request to reduce
his alimony obligations based on substantial change of circumstances, and
denying a plenary hearing. The court determined that defendant had not made
a prima facie showing of changed circumstances under Lepis, 83 N.J. at 151,
noting that:
the court acknowledges that the [d]efendant made
efforts in applying to jobs as evidenced by the proofs
of applications he submitted. However, this court
holds that the proofs are not enough. Defendant is not
impaired, and seeks the change in alimony on his
inability to secure employment with pay similar to the
pay he had prior to divorce . . . . Defendant's limited
proofs only show a consistent job search for the period
of January to June 2017. There are no proofs of a job
search from the time that [d]efendant's purported
financial troubles began, nor has [d]efendant provided
proofs of a continued job search until the time of
filing. Furthermore, [d]efendant has not shown a
meaningful effort to improve their status. While
[d]efendant has shown [his] application efforts, there
are no other efforts taken that would improve
[d]efendant's chances and ability to find work or
substantially similar work. Lastly, while the [c]ourt
acknowledges [d]efendant's application efforts within
the area of a "creative director" position, there were no
proofs submitted beyond these applications that
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[d]efendant applied for similar work arising out of the
same experience or skill set.
The motion court did, however, grant defendant's request to reduce his
child support obligation based on the emancipation of the eldest child,
establishing the support on an annual income of $65,000. After plaintiff's
counsel brought this anomaly to the court's attention, the court issued an April
13, 2018 order amending defendant's child support obligation to reflect the
imputed income of $150,000.
A motion to modify alimony "rests upon its own particular footing and
the appellate court must give due recognition to the wide discretion which our
law rightly affords to the trial judges who deal with these matters." Donnelly
v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v.
Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Our review of the trial
court's discretionary determination regarding defendant’s support obligations
"is limited to whether the court made findings inconsistent with the evidence
or unsupported by the record, or erred as a matter of law." Reese v. Weis, 430
N.J. Super. 552, 572 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J.
394, 411 (1998)); see also Storey v. Storey, 373 N.J. Super. 464, 479 (App.
Div. 2004). We are, however, less deferential to a determination without a
hearing, especially when material facts are at issue. N.J. Div. of Youth &
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Family Services v. G.M., 198 N.J. 382 , 396 (2009) ("when no hearing takes
place, no evidence is admitted, and no findings of fact are made . . . appellate
courts need not afford deference to the conclusions of the trial court.").
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, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995). We review a motion court's interpretation of the law de novo.
Occhifinto v. Olivo Constr. Co. LLC, 221 N.J. 443, 453 (2015) (citing State ex
rel. A.B., 219 N.J. 542, 554-55 (2014)).
Courts retain the power to modify support orders entered where there is
prima facie evidence of a change in circumstances even where there is a
property settlement agreement, as such settlement agreements should be
enforced only "to the extent they are just and equitable." Innes v. Innes, 117
N.J. 496, 518 (1990) (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82
(1960)). In determining whether a downward modification is appropriate, the
court may consider the supporting spouse's income and assets. Miller v.
Miller, 160 N.J. 408, 422 (1999). A hearing is necessary "to resolve a genuine
issue of material fact . . . ." Adler v. Adler, 229 N.J. Super. 496, 500 (App.
Div. 1988).
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The Lepis standard for modification is two-fold: (1) the party moving for
modification bears the burden of making a prima facie showing of changed
circumstances; and (2) if a prima facie showing has been made and a genuine
dispute exists as to a material issue of fact, the court should then order
discovery and a plenary hearing to determine whether the obligor has the
ability to pay. Lepis, 83 N.J. at 157-59. A decrease in the supporting spouse’s
income may constitute a changed circumstance warranting modification of
support obligations. Id. at 151.
Defendant demonstrated a prima facie case of a significant good-faith
reduction of income, to justify a plenary hearing, from the imputed $150,000
as an advertising art director to the claimed actual income of $60,000 working
as a truck driver. He also demonstrated that his assets were completely
dissipated. Whether defendant made sufficient efforts to obtain employment in
advertising, or another higher-paying field, may be fleshed out at a plenary
hearing after discovery is exchanged.
As part of the plenary hearing the court may, if it sees fit, also determine
the intent of the parties in entering into a PSA that seems to preclude a
reduction of support based on a reduction of income in one paragraph, while
describing the parties' agreed-upon right to seek modification of alimony based
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on a "significant change of circumstances." In the unlikely event a Lepis
waiver was intended, see Morris v. Morris, 263 N.J. Super. 237, 239-40 (App.
Div. 1993), the court need not determine whether a sufficient change in
circumstances exists to modify support. See also Ordukaya v. Brown, 357 N.J.
Super. 231, 236 (App. Div. 2003) ("plaintiff waived any claim for support and
agreed to an 'anti-Lepis' provision precluding any claim for change in
circumstances supporting a claim for alimony.").
Reversed and remanded for a plenary hearing. We do not retain
jurisdiction.
Reversed.
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