JIWON SONG v. KWANG ROH (FM-02-0389-19, BERGEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1032-20
JIWON SONG,
Plaintiff-Respondent,
v.
KWANG ROH,
Defendant-Appellant.
_______________________
Submitted June 6, 2022 – Decided July 14, 2022
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0389-19.
Kwang Roh, appellant pro se.
Snyder Sarno D'Aniello Maceri & Da Costa, LLC,
attorneys for respondent (Adelaide Riggi, of counsel
and on the brief).
PER CURIAM
In this post judgment dissolution matter, defendant Kwang Roh appeals
from the Family Part's October 28, 2020 order, denying his motion for
reconsideration of a July 27, 2020 order 1 that found him in violation of plaintiff
Jiwon Song's rights. The order was entered after the motion judge concluded
defendant failed to satisfy his burden on reconsideration and abide by the child
support and related provisions of the parties' October 16, 2019 marital settlement
agreement (MSA) that was incorporated into their final judgment of divorce
(JOD) of the same date. On appeal, defendant argues the motion judge erred by
"accepting plaintiff's wrong arrear[s] calculation," and "misjudg[ed] defendant's
income and permanent financial situation[]."
We accept defendant's contention, with plaintiff's agreement, that an error
exists in the calculation of his arrears. However, we reject defendant's argument
that reconsideration was warranted as to his support modification motion and
we affirm, substantially for the reasons stated in the motion judge's statement of
reasons that accompanied the order under appeal.
1
The appeal is limited to the October 28, 2020 order as neither defendant's
notice of appeal nor case information statement refer to the earlier order. See
Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App.
Div. 2001) (refusing to consider order not listed in notice of appeal); Silviera-
Francisco v. Bd. of Educ. of City of Elizabeth, 224 N.J. 126, 142 (2016) (stating
an order "clearly identified [in a] [c]ase [i]nformation [s]tatement submitted
with [a] [n]otice of [a]ppeal" is deemed properly before the court for review).
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I.
The facts derived from the motion record are summarized as follows. The
parties married in 2015. They had two children, a daughter who will be turning
sixteen in the fall, and a son who is now twelve years old. As already noted,
they divorced in 2019 pursuant to the JOD that incorporated their MSA that was
reached the same day.
Under the MSA, defendant's alimony obligation totaled $5,666.66 per
month, and above Guidelines child support 2 was fixed at $2,958 per month,
calculated as child support in the amount of $1,458 plus $1,500 per month for
extracurricular activities.
Within a few months of being divorced, beginning in or about June 2020,
the parties began to litigate defendant's compliance with the terms of the MSA.
According to plaintiff, during the eight months since they became divorced,
defendant had not paid support in full or otherwise comply with various
provisions of the MSA. As a result, plaintiff filed a motion that was based upon
defendant's failure to pay support, address the division of his retirement assets,
and secure life insurance. At that time, plaintiff alleged she was owed $12,000
2
New Jersey Child Support Guidelines. See, Pressler & Verniero, Current N.J.
Court Rules, Appendix IX-A to R. 5:6A ¶ 2, www.gannlaw.com (2022).
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for child support and $6,500 for half of defendant's share of the children's
equestrian lesson expense.
Defendant opposed plaintiff's motion and filed a cross-motion. In his
application, defendant sought to reduce his alimony obligation, and limit his
child support obligation to the base amount allocated for support, without any
payment towards the extracurricular expenses as agreed to in the MSA. In his
supporting certification, defendant claimed that "even before the divorce ha[d]
finalized, [he] expected that [his] bonus in 2020 would be much lower than the
last year's due to the changing aspects of [his] current job." He expected that
the "total pre[-]tax income in 2020 [to] be approximately $199,600 vs. $312,100
in 2019 due to lower bonus amount." According to defendant, his 2019 bonus
was $150,000, but in 2020 it was reduced to $37,500. 3
Defendant contended that in the past, plaintiff's "lavish living style" was
funded by her "rich parents," not by him and he could not do so as his income
was now less than it had been in the past. Addressing his expenses, defendant
stated that his current monthly net income was $11,848.27, and after paying his
3
Defendant did not support his allegations with the required case information
statements, see R. 5:5-4, or any supporting documents, such as pay stubs, tax
returns or any other similar financial documents.
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monthly expenses, including alimony and child support, his net income would
be $1,159.66 a month to pay "for all [his] personal expenses."
In his July 27, 2020 order, as already noted, the motion judge granted
plaintiff's motion and denied defendant's motion for modification of his support
obligation. In the written explanation of his reasons that was incorporated into
the order, the judge reviewed the applicable case law controlling the
enforcement of settlement agreements and applications for modification. The
judge concluded that defendant did not establish that he was entitled to relief
since defendant anticipated he would be experiencing a reduction of income
when he signed the MSA, and there was insufficient evidence to support
modification.
The motion judge summed up his ruling as follows:
Here, the parties entered into their [MSA] freely and
voluntarily less than a year ago. As such, this [c]ourt
is within its rights to fully enforce all aspects of same.
After parties entered into a voluntary agreement, the
[c]ourt should not draft a new agreement for the parties,
nor should the court modify the agreed-upon
provisions, where the alleged changed circumstances
were envisioned by the parties and dealt with
specifically in the agreement. . . . Defendant hinges his
argument on the fact that his changed financial
circumstances stem from his bonus being lower in 2020
than it has in prior years, however, . . . [d]efendant, by
his own admission acknowledged that prior to the
divorce even being finalized he knew his bonus would
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be lower. It is clear then that . . . [d]efendant
anticipated and acknowledged that his circumstances
could and would be different and still freely entered
into and signed the MSA with . . . [p]laintiff. Thus, a
fair and definitive agreement reached by way of mutual
consent should not be unnecessarily or lightly
disturbed. This [c]ourt shall enforce all aspects of the
parties' MSA.
Nevertheless, the motion judge also addressed defendant's argument that
the requirements of the MSA should be modified. The judge concluded that
defendant failed to meet his burden in this regard. The judge stated the
following:
[A] modification of a support obligation is not
warranted if the change in circumstances is "only
temporary" or is "expected but [has] not yet occurred."
Bonanno v. Bonanno, 4 N.J. 268, 274 (1950); [s]ee
also, Donnelly v. Donnelly, 405 N.J. Super. 117 (App.
Div. 2009). [4]
4
In Donnelly, we noted as follows:
[I]t is not enough that an obligor demonstrate a
reduction in income; the obligor must also demonstrate
how he or she has attempted to improve the diminishing
circumstances. See, e.g., Aronson v. Aronson, 245 N.J.
Super. 354, 361 (App. Div. 1991) (concluding that a
movant had failed to present a prima facie case of
changed circumstances when "what he did was to allow
his practice to continue to diminish unchecked while
bemoaning his fate"); Arribi v. Arribi, 186 N.J. Super.
116, 118 (Ch. Div.1982) (finding that the "pervading
philosophy" in our precedents is that "one cannot find
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When a motion or cross-motion is brought for the entry
or modification of an order or judgment for alimony
based on changed circumstances, the pleading filed
must have appended to it a copy of all prior case
information statements and a current case information
statement. R. 5:5-4.
If there is a prima facie showing of changed
circumstances demonstrated by the party seeking the
alimony or child support relief[,] then the court will
order the opposing party to file a copy of a current case
information statement. R. 5:5-4(a).
Here, . . . [d]efendant was seeking a modification of his
support obligation by way of arguing a change of
circumstances. The [c]ourt has found, based on the
argument set forth on the record and based on . . .
[d]efendant's submissions, that there is no change of
circumstances to warrant a modification of
[d]efendant's child support obligation or his alimony
obligation to the [p]laintiff. . . . Defendant in his own
submissions[] certified to the fact that even before the
divorce was finalized, he expected his 2020 bonus to be
lower than that of the prior year. Thus, . . . [d]efendant
acknowledges that he was aware of these financial
circumstances and entered into the MSA freely and
voluntarily. Beyond that, . . .[d]efendant's application
was procedurally deficient as he failed to attach a
current and prior [c]ase [i]nformation [s]tatement.
himself in, and choose to remain in, a position where he
has diminished or no earning capacity and expect to be
relieved of or to be able to ignore the obligations of
support to one's family").
[Donnelly, 405 N.J. Super. at 130 n.5.]
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Defendant filed a motion for reconsideration and supporting certification
in which defendant argued that he had "shown that his financial status ha[d]
substantially changed and aggravated in 2019 and 2020 due to significant
reduction of earnings and [had] explained [it] to plaintiff many times." He
claimed that the motion judge "overlooked the fact that [d]efendant's current
monthly net income is actually lower than the total MSA obligation payment
and [is] permanent."
In support, defendant also submitted a statement setting forth his "new
financial status," that he said included documents from his employer 5 that were
"not provided [with his earlier cross-motion] due to timing constraint at the
time." He asserted that, as illustrated by the attachments, although at the time
of the divorce he anticipated a three to seven percent reduction in income, he
did not anticipate a "[seventy-five percent] reduction in bonus in 2020 and
[forty-four percent] reduction of earnings" by the end of July.
Defendant argued he never anticipated such a decrease in earnings, which
warranted a reduction of support, and that the pandemic was another cause of
the reduction in his income. Defendant also opposed plaintiff's attempt to have
5
These documents do not appear in either parties' appendix.
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his support paid from his 401(k) plan, and he sought reversal of the motion
judge's earlier award of counsel fees.
Plaintiff opposed the application and filed a cross-motion to again hold
defendant in violation of litigant's rights for not having complied with the
motion judge's earlier order.
In a reply certification, for the first-time defendant attached documents
that purportedly supported his contentions. The first was a list he prepared of
six positions he allegedly applied for from May 2020 through August 2020.
Defendant did not provide any details regarding those applications and t here
were no supporting documents. He also provided a pay stub from his current
employer that demonstrated his gross earnings through August 31, 2020,
including his bonus, totaled $146,516.72.
On October 28, 2020, the motion judge entered an order granting
plaintiff's cross-motion and denying defendant's motion for reconsideration. In
denying reconsideration, the judge stated the following:
Defendant's motion is no more than an attempt to have
the court retroactively modify the MSA in his favor by
reducing or eliminating his support obligations. This
matter was previously litigated and did not come out in
his favor. Defendant has submitted no new
information, nor any indication that the [c]ourt's July
27, 2020 [o]rder was based on a palpably incorrect
basis. Defendant's bare allegations that his reduction in
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income is permanent, rather than temporary as
previously found, are devoid of support in his
submissions and on the record. The fact that
[d]efendant continued to make voluntary contributions
to his 401(k) instead of making support payments is
strong evidence to the contrary. As such, [d]efendant's
motion for reconsideration is denied in its entirety.
This appeal followed.
II.
A.
We begin our review by considering defendant's argument that the motion
judge miscalculated the amount of defendant's support arrears.6 In response,
plaintiff correctly argues that defendant never brought the error to the attention
of the motion judge and, technically, we should not consider defendant's
contention in this regard on appeal. See Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973). However, plaintiff also concedes there was a clerical error
regarding arrears that requires correction, either by "consent order, or Rule
1:13-1 motion[,] which provides for the correction of clerical errors[,] including
6
The October 28, 2020 order states that defendant owed "$18,500.00 to the
[p]laintiff representing his share of equestrian and other extracurricular
expenses for the children," and $19,587.14 for support. Although those amounts
totaled $38,087.14, the order directed that $39,584.20 be paid from "his 401(k)
or other assets." It is not apparent from the order how these amounts were
determined or why there was a discrepancy.
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pending an appeal." Plaintiff also assures that she "will cooperate with the
preparation and entry of a [c]onsent [o]rder correcting the effective date utilized
in the July 27, 2020 [o]rder with respect to the payment of supplemental child
support (extracurricular and equestrian expenses) and resultant probation
department arrears as of August 31, 2020."
Under these circumstances, we conclude the amount fixed as arrears by
the motion judge as of July 27, 2020, should be remanded to the motion judge
to correct the amount of defendant's arrears, after considering whatever
additional submissions the judge may require to assist in determining the correct
amount. That remand should be completed within thirty days.
B.
We turn our attention to defendant's argument that on reconsideration the
motion judge did not accept defendant's representations about his income or that
his alleged current financial position was permanent. We find no merit to these
contentions.
On appeal from a denial of a motion to reconsider, our review is limited .
"[R]econsideration is a matter within the sound discretion of the [c]ourt, to be
exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374,
384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
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Div. 1990)). However, the denial of a motion for reconsideration "will be set
aside if its entry is based on a mistaken exercise of discretion." Brunt v. Bd. of
Trs., Police & Firemen's Ret. Sys., 455 N.J. Super. 357, 362 (App. Div. 2018).
A trial court abuses its discretion "when a decision is 'made without a rational
explanation, inexplicably depart[s] from established policies, or rest[s] on an
impermissible basis.'" Ibid. (quoting Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015)).
Reconsideration should only be used in those rare cases that fit into a
narrow category where "either 1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]o urt
either did not consider, or failed to appreciate the significance of probative,
competent evidence." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div.
2010) (quoting D'Atria, 242 N.J. Super. at 401). "[T]he magnitude of the error
cited must be a game-changer for reconsideration to be appropriate." Triffin v.
SHS Grp., LLC, 466 N.J. Super. 460, 466-67 (App. Div. 2021) (quoting
Palombi, 414 N.J. Super. at 289).
A party should not seek reconsideration based only on dissatisfaction with
the judge's decision, and "[t]he standards for reconsideration are substantially
harder to meet than are those for a reversal of a judgment on appeal." Regent
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Care Ctr., Inc. v. Hackensack City, 20 N.J. Tax 181, 184-85 (2001). The party
seeking reconsideration must show that the judge "acted in an arbitrary,
capricious, or unreasonable manner." D'Atria, 242 N.J. Super. at 401 (remarking
that "[a]lthough it is an overstatement to say that a decision is not arbitrary,
capricious, or unreasonable whenever a [c]ourt can review the reasons stated for
the decision without a loud guffaw or involuntary gasp, it is not much of an
overstatement"). Also, "[a] motion for reconsideration is meant to 'seek review
of an order based on the evidence before the court on the initial motion . . . not
to serve as a vehicle to introduce new evidence in order to cure an inadequacy
in the motion record.'" Triffin, 466 N.J. Super. at 466 (quoting Cap. Fin. Co. of
Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008)).
With these guiding principles in mind, we conclude that defendant failed
to meet his burden on reconsideration, substantially for the reasons expressed
by the motion judge in his statement of reasons that was incorporated into his
order. We add the following brief comments.
In support of his motion, defendant did not provide any meaningful
evidence, let alone evidence that was not available to him prior to the judge's
July 27, 2020 order, nor did he establish that the judge failed to appreciate and
understand the significance of the evidence presented in connection with the
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earlier motion. Similarly, defendant did not meet his burden to demonstrate that
the motion judge's original determination was irrational or incorrect.
Defendant's proofs were, as the motion judge found, insufficient,
especially in light of his failure to even file the required case information
statements, with the required attachments, originally, or even on
reconsideration. That failure alone warranted denial of both of defendant's
motions.
A party seeking modification of a support order must supply sufficient
proof of a substantial change in circumstances to warrant relief. A proper
changed circumstances analysis "requires a court to study the parties' financial
condition at the time of the divorce, as well as at the time of the application."
Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992). For this reason,
Rule 5:5-4(a) requires the moving party to append a copy of his or her prior and
current case information statement. As we have stated:
This mandate is not just window dressing. It is, on the
contrary, a way for the trial judge to get a complete
picture of the finances of the movants in a modification
case. This is important because the movant bears the
initial burden in such a case under Lepis v. Lepis, 83
N.J. 139 (1980).
[Palombi, 414 N.J. Super. at 287 (quoting Gulya v.
Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991)).]
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Further, "[c]ourts have consistently rejected requests for modification [of
support obligations] based on circumstances which are only temporary or which
are expected but have not yet occurred." Lepis, 83 N.J. at 151. "[S]upport,
whether set by court order or agreement, [may] be modified upon a showing of
substantial, non-temporary changes in ability to support oneself or pay support."
Gordon v. Rozenwald, 380 N.J. Super. 55, 67-68 (App. Div. 2005). Temporary
unemployment is not grounds for a modification of support. Bonanno, 4 N.J. at
275. Thus, the movant must show that the alleged change in circumstances is
both permanent, Innes v. Innes, 117 N.J. 496, 504 (1990), and involuntary, id.
at 523-24 (Stein, J., concurring in part).
Here, in addition to not filing the required case information statements,
defendant made unsupported allegations originally and on reconsideration that
his income reduction was permanent. Without more, the motion judge correctly
determined that defendant did not satisfy his burden. We have no cause to
disturb that result.
Affirmed in part, vacated and remanded in part for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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