LUCIA COLACURTO v. ANTHONY COLACURTO (FM-02-2627-17, 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NOT FOR PUBLICATION WITHOUT THE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-1112-20
LUCIA COLACURTO,
Plaintiff-Respondent,
v.
ANTHONY COLACURTO,
Defendant-Appellant.
________________________
Submitted March 16, 2022 – Decided March 31, 2022
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2627-17.
De Marco & De Marco, attorneys for appellant
(Michael P. De Marco, on the briefs).
Jardim, Meisner & Susser, PC, attorneys for respondent
(Jessica Ragno Sprague, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant Anthony Colacurto
appeals from a November 13, 2020 Family Part order denying his request for
modification of custody and parenting time regarding the parties' eight-year-old
daughter. Defendant also appeals denial of his motion to recalculate his $262
per week child support obligation. For the reasons that follow, we affirm.
I.
The following facts are derived from the motion record. The parties
divorced in March 2014 after nearly three years of marriage. Their daughter
was born in April 2012. Plaintiff Lucia Colacurto and defendant entered into a
property settlement agreement (PSA), which was incorporated into their final
dual judgment of divorce (FJOD). Plaintiff remarried and resides with her
current husband and the parties' daughter in Chatham. Plaintiff has three adult
stepchildren who periodically reside in the household.
The FJOD granted joint legal custody of the parties' daughter, the only
child born of their marriage. Plaintiff was designated as the parent of primary
residence (PPR), and defendant was designated as the parent of alternate
residence (PAR). Paragraph 3.2(ii) of the PSA provided that after the parties'
daughter turned three years of age:
[Defendant] shall have overnight visitation[] with the
[c]hild every other weekend commencing at 6:00 p.m.
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every other Friday and ending at 6:00 p.m. the
following Sunday. [Defendant] shall have one
overnight visitation on Tuesday of each week
commencing immediately after day care (or school)
concludes and ending when [defendant] drops the
[c]hild off at day care or school the following day.
At the time the parties entered into the PSA, they resided in Bloomingdale.
During the divorce proceedings, Dr. Amie Wolf-Mehlman completed a best-
interests evaluation report relative to custody of the daughter. 1 Notably,
paragraph 3.7 of the PSA states: "Pursuant to the recommendations of Dr. Wolf-
Mehlman, the parties shall engage the services of a Parent Coordinator (PC) in
order to assist them with any post[-]divorce issues that should arise between
them concerning the child." There is nothing in the record indicating a PC was
appointed or agreed upon until the November 13, 2020 decision by the judge.
The PSA also provides that child support "was calculated in accordance
with the [c]hild [s]upport [g]uidelines, [s]hared parenting [w]orksheet, based on
[plaintiff]'s income of $60,000 per year and" defendant's income of $50,000 per
year. The relationship between the parties has been acrimonious post-divorce.
They have filed multiple post-judgment motions and an order to show cause to
1
Dr. Wolf-Mehlman's initial best-interests evaluation report was not included
in the appendices.
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enforce litigant's rights relative to listing the former marital residence for sale
and to modify custody.
On April 2, 2015, three orders were issued by a previous Family Part
judge: (1) holding defendant in contempt of court; (2) enforcing a prior court
order relative to defendant being ordered to pay a $2,000 counsel fee to plaintiff;
(3) for an immediate sale of the former marital residence; and (4) re-appointing
Dr. Wolf-Mehlman to complete an updated best-interests evaluation. In her
updated report, Dr. Wolf-Mehlman recommended defendant's parenting time
remain unchanged. 2
On June 28, 2017, a prior judge denied defendant's pro se motion to
modify custody and parenting time and denied his request for a fifty-fifty
custody arrangement. The judge found defendant failed to show a substantial
change of circumstances; defendant was ordered to bring the daughter to all
scheduled activities during his parenting time; and the judge held him in
violation of litigant's rights for failing to pay the outstanding counsel fee award
to plaintiff, which had been increased from $2,000 to $2,500. In addition, the
judge transferred venue from Passaic County to Bergen County due to
defendant's employment with the Passaic County Sheriff's Department.
2
Dr. Wolf-Mehlman's updated report is also not included in the appendices.
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On September 2, 2020, defendant filed another motion to modify custody
and parenting time and to recalculate child support. In his moving certification,
defendant asserted plaintiff's move with their daughter to Chatham and re-
marriage constituted "a significant change in circumstances" warranting a
modification to the PSA, and that he should be designated PPR. Defendant also
certified the parties' daughter "complained" to him about her new living
arrangements; "that [p]laintiff takes sides with her boyfriend" 3; and the child "is
required to wake up, even on non-school days[,] between 6:00 a.m. and 7:00
a.m." In addition, defendant related that the daughter complained about plaintiff
signing "her up for art classes all week, horse[back] riding lessons, [and] violin
lessons." According to defendant, plaintiff does not notify him about their
daughter's extra-curricular activities. He also averred that plaintiff is "coaching"
their daughter on "what to say" during his FaceTime conversations with her.
As to his request to modify child support, defendant certified that "based
upon information," he learned plaintiff changed her employment and is working
at the law firm of Kelley Drye, where her husband is a partner. Defendant claims
plaintiff "received an increase in her salary" and refused to disclose her current
3
The record refers to plaintiff's significant other as her "boyfriend," " fiancé,"
and "husband" interchangeably. Plaintiff refers to this individual as her
"husband." This is not germane to our decision.
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earned income. According to defendant's paystubs included with his motion, he
claims, "through June 15, 2020, [he] had only earned $22,835.61, which
included road projects" and he is "left with net pay between $423 [to] $329 per
week to pay [his] expenses."
Plaintiff filed a notice of cross-motion seeking to enforce financial
obligations for the parties' daughter relative to child care; payment of the
outstanding $2,500 court-ordered legal fee; compelling defendant to participate
in the daughter's therapy; restraining him from discussing litigation matters with
their daughter; restraining him from adding additional adults to the school pick
up list without plaintiff's written consent; removing defendant's mid-week
overnight parenting time; and for additional counsel fees and costs.
In her cross-moving certification, plaintiff states defendant "refused to
retain Dr. Wolff-Mehlman" or pay her retainer fee and he "was restrained from
picking up [their daughter] at any other time than his scheduled parenting time
(because he had a habit of doing whatever he wanted.)" Defendant "was also
restrained from speaking about or showing [their] daughter videos depicting
dangers of vaccinations." Plaintiff claims defendant got the "facts" wrong in his
motion—she was not living alone at the time of their divorce and moved back
in with her parents for financial reasons. In addition, plaintiff certified she
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informed defendant she was engaged to her now husband, an attorney, and was
moving to Chatham.
According to plaintiff, the parties' daughter is "very happy and thriving in
her new home." Plaintiff decided to leave her employment and be a stay-at-
home mom, which was opportune during the COVID-19 shutdown, virtual
school in the spring, and the hybrid school schedule thereafter. Notwithstanding
her loss of earned income, plaintiff certified she had "no issue" with continuing
the $60,000 imputation of income to her as provided in the PSA.
Plaintiff also certified that defendant "has had multiple romantic
relationships" since their breakup and "had girlfriends moving in and out of his
residence," causing their daughter to experience "distress." In contrast to
defendant's certification, plaintiff represents their daughter "complained of
being 'kicked out' of" defendant's bedroom, she argues with him, deals with the
"craziness" of his girlfriends, and becomes "very upset" when she leaves for
parenting time with her father. Plaintiff certified she provided defendant with
information about their daughter's extracurricular activities, but he takes no
interest and does not contribute financially, even in the face of court orders.
Plaintiff states she takes the daughter to all her doctor's visits and therapy
sessions.
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As to the issue of child support, plaintiff contended defendant's June 15,
2020 pay stub shows his bi-monthly income is $1,968, however, the pay stub
attached to his case information statement (CIS) reveals he receives $2,223.38
per pay check. This would calculate to an annual base income of $53,361.12,
plus "additional income based upon his pay stub." Plaintiff argued defendant
recently lost a tenant who paid him rent for an apartment in his two-family home,
and he has not sought out another tenant. Defendant's rental income was not
included in the child support calculation set forth in the PSA. Plaintiff also
certified defendant recently received an inheritance from his aunt but did not
disclose the amount in his moving papers.
In his reply certification to plaintiff's cross-motion, defendant reiterated
many of the arguments he asserted previously. He certified his tenant passed
away, and he will not relet the apartment because he requires "additional space
for [his] growing family." His aunt's estate "has not been settled yet," and he
lives "paycheck to paycheck." Defendant refuted plaintiff's allegations about
his ex-girlfriend and claims "the relationship ended due to the example she was
setting for [the parties' daughter]." His fiancée is involved with the child's life
and co-parents with him.
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On November 6, 2020, the judge conducted oral argument on the motions
via Zoom. The parties participated; were administered the oath; and defendant
answered questions posed by the judge. After considering the arguments and
testimony, the judge rendered an oral opinion that day and concluded:
I'm not going to change parenting and custody right
now because I don't feel that a prima facie showing has
been established that there's a need within the best
interest of the child at this point. What I do think is
there are a lot of issues regarding parenting time and
those issues really need to get resolved and can be
resolved outside of the [c]ourt.
The judge specifically noted:
[W]hat I am going to do is to put in place a person, a
person to help navigate some of the problems that have
been going on in terms of resolution of parenting time
issues . . . . The [PC] can make the calls if – about who
gets [the daughter] . . . and how to deal with that. They
can make the call about certain extracurricular
activities when there's a dispute so it doesn't have to get
personal and nasty between the two of you. It can be
resolved way before then and it helps open up the lines
of communication. That's what I think is needed in this
case.
The judge denied defendant's motion to modify parenting time and to
recalculate child support. As to plaintiff's cross-motion, the judge granted her
request to enforce defendant's payment of child care obligations; payment of
outstanding legal fees; and enforced his obligation to bring the daughter to her
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extracurricular activities during his parenting time. Plaintiff's request for
additional counsel fees and costs was denied. A memorializing order was
entered. A separate order was entered on November 13, 2020, appointing Jodi
Argentino, Esq. as PC, to address "any remaining issues regarding parenting
time." This appeal ensued.
Defendant raises the following issues on appeal:
(1) the judge erred in denying his motion to modify the
custody and parenting time provisions of the PSA
because there was a prima facie showing of changed
circumstances bearing upon the daughter's best
interests; and
(2) the judge erred in denying his motion to modify the
child support provisions of the PSA.
Following our careful review of the record, we reject defendant's arguments.
II.
Our Court has routinely recognized the Family Part's "special jurisdiction
and expertise in family matters." Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-
83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)); see also
Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 587 (App. Div. 2016)
(recognizing "review of the Family Part's determinations regarding child support
is limited"). Thus, we defer to the Family Part's factual findings and decision
unless such decision constitutes as an abuse of discretion, i.e.: (1) its "findings
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are 'so manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence as to offend the interests of justice,'"
Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015)
(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484
(1974)); (2) the court failed to consider all controlling legal principles, Gotlib
v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008); or (3) the court entered an
order that lacks evidential support, see Mackinnon v. Mackinnon, 191 N.J. 240,
254 (2007).
A Family Part's "legal conclusions, and the application of those
conclusions to the facts," however, are reviewed de novo. Reese v. Weis, 430
N.J. Super. 552, 568 (App. Div. 2013); see also Quinn v. Quinn, 225 N.J. 34, 45
(2016) (noting traditional contract principles apply to the Family Part 's contract
interpretation of a parties' PSA); Kieffer v. Best Buy, Inc., 205 N.J. 213, 222-23
(2011) (noting the interpretation of a contract is an issue of law that an appellate
court reviews de novo).
First, defendant argues the judge erred in finding he had failed to establish
a prima facie showing of changed circumstances. Specifically, defendant claims
in denying his motion, the judge "failed to set forth the reasons for making [her]
conclusion." The Family Part's primary consideration in custody cases "is the
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best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App.
Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). Therefore,
the Family Part's ultimate focus is always "on the 'safety, happiness, physical,
mental and moral welfare' of the children." Ibid. (quoting Fantony v. Fantony,
21 N.J. 525, 536 (1956)); see also P.T. v. M.S., 325 N.J. Super. 193, 215 (App.
Div. 1999) ("In issues of custody and visitation '[t]he question is always what is
in the best interests of the children, no matter what the parties have agreed to.'"
(alteration in original) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476,
479 (Ch. Div. 1997))).
The party seeking to modify custody, however, must first demonstrate a
substantial change of circumstances, which will affect the children's welfare,
before the Family Part will consider the best interests of the children anew.
Hand, 391 N.J. Super. at 105; Slawinski v. Nicholas, 448 N.J. Super. 25, 36
(App. Div. 2016) (citation omitted); Bisbing v. Bisbing, 445 N.J. Super. 207,
218 (App. Div. 2016) (quoting Walles v. Walles, 295 N.J. Super. 498, 517 (App.
Div. 1996)). The Family Part will not reconsider the best interests of the
children absent the moving party's prima facie showing of changed
circumstances. See, e.g., Hand, 391 N.J. Super. at 112.
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Nor may the Family Part conduct a plenary hearing where the moving
party has failed to establish a prima facie showing that such a hearing is
necessary. Id. at 106. The Family Part is required to conduct a plenary hearing
only "when the submissions show there is a genuine and substantial factual
dispute regarding the welfare of the children, and the [Family Part] determines
that a plenary hearing is necessary to resolve the factual dispute." Id. at 105(emphasis added); Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012)
(quoting Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)).
The Family Part will generally disregard conclusory allegations "when
determining whether a hearing is necessary." Hand, 391 N.J. Super. at 112
(citing Lepis v. Lepis, 83 N.J. 139, 159 (1980)); see also Lepis, 83 N.J. at 159("[A] party must clearly demonstrate the existence of a genuine issue as to a
material fact before a hearing is necessary."). The Family Part has substantial
discretion in granting or denying applications to modify child support, and
generally we will defer to the Family Part's decision of "whether a plenary
hearing must be scheduled." Jacoby, 427 N.J. Super. at 123.
The judge's decision, however, must be supported by the record and be
"consistent with controlling legal principles." See Hand, 391 N.J. Super. at 112.
The Family Part has "a duty to make findings of fact and to state [its] reasons in
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support of [its] conclusions." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App.
Div. 1996); see R. 1:7-4(a). Otherwise, meaningful appellate review will be
inhibited. Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008)
(quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). As such,
a Family Part's naked conclusion will not suffice. Curtis v. Finneran, 83 N.J.
563, 570 (1980); see also Avelino-Catabran, 445 N.J. Super. at 595 (noting a
court "does not discharge [its] function simply by recounting the parties'
conflicting assertions and then stating a legal conclusion").
In the matter under review, the judge thoroughly considered the record,
oral arguments, and rendered a comprehensive decision. We agree with the
judge that defendant failed to provide any evidence in support of the relief
sought in his motion. Indeed, the judge highlighted:
You have to establish harm to the child. Okay?
You have to establish harm because . . . because of X,
Y and Z the [c]ourt needs to intervene and . . . get
involved in changing an agreement that was made
between the parties. Okay? That's, that's . . . because
this is about [the] best interest of the child.
What I'm hearing is the parents . . . this is what
I'm gathering from reading the papers. They don't get
along at all. They fight about everything and the child
is stuck in the middle of all of this. . . . Both of them
are having a hard time co-parenting and we have a child
that's stuck in the middle, but because of that that's why
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I want your client to participate in the therapeutic
process.
I haven't received anything from a therapist
saying that, oh, my God, this child is falling apart and
that you need to . . . change . . . custody and parenting
time. I haven't gotten anything from [the Division of
Child Protection and Permanency (the Division)]
saying, oh, my God, this child is in a bad way. The
[c]ourt needs to intervene. Because I've done it. I've
done it. . . . [T]here's something going on. This is not
good for the child. [The Division] is involved. The
school's are involved. There's a whole lot of ways to
prove that the child is not in a good place and you
haven't shown me anything. What I, what I have heard
is that there's a need for a [PC] in this case.
Contrary to defendant's contention, the judge did not err in denying his
motion to modify the PSA relative to custody and parenting time. Moreover,
the judge aptly pointed out to the parties that their daughter was "stuck in the
middle" of this dispute, and a PC was needed to address ongoing parenting
issues, as was contemplated more than six years earlier in their PSA. The judge
was correct in her analysis, which was based upon substantial credible evidence
in the record. Moreover, the record supports the judge's findings and
conclusions, and she did not reach an erroneous finding on custody and
parenting time of the parties' daughter.
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III.
Next, defendant argues the judge erred in finding the child support
provisions of the PSA to be non-modifiable. In particular, defendant claims the
agreement's anti-Lepis clause,4 Article 7.12, only applies to the parties' alimony
agreement and not to their respective child support obligations.
Under N.J.S.A. 2A:34-23, the Family Part has the authority to modify
child-support "from time to time as circumstances may require." Spangenberg,
442 N.J. Super. at 535 (quoting N.J.S.A. 2A:34-23). "Our courts have
interpreted this statute to require a party who seeks modification to prove
'changed circumstances.'" Id. at 536 (alteration in original) (quoting Lepis, 83
N.J. at 157). The Family Part's consideration of "changed circumstances"
includes the change in the parties' financial circumstances, whether the change
is continuing, and whether the parties' agreement "made explicit provision for
the change." Ibid. (quoting Lepis, 83 N.J. at 152).
A parties' settlement agreement may reasonably limit the circumstances
that may qualify as "changed" by including within the agreement an explicit
4
An anti-Lepis clause waives the parties' rights to modify their fixed payment,
or the established criteria of payment, for reasonably, foreseeable future
circumstances that would otherwise give rise to judicial modifications of their
agreement. Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993).
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provision for the change—an anti-Lepis clause. See Quinn, 225 N.J. at 49. Anti-
Lepis clauses are subject to enforcement where the parties "with full knowledge
of all present and reasonably foreseeable future circumstances bargain[ed] for a
fixed payment or establish[ed] the criteria for payment[,] . . . irrespective of
circumstances that in the usual case would give rise to Lepis modifications of
their agreement." Morris, 263 N.J. Super. at 241. The Family Part will not
unnecessarily or lightly disturb such arrangements if the arrangements are fair
and definitive. Quinn, 225 N.J. at 44-45 (quoting Konzelman v. Konzelman,
158 N.J. 185, 193-94 (1999)); see also id. at 44 ("[T]here is a 'strong public
policy favoring stability of arrangements in matrimonial matters.'" (quoting
Konzelman, 158 N.J. at 193)). Nor may the court rewrite the agreement "or
grant a better deal than that for which the parties expressly bargained." Id. at
45.
A parties' "settlement agreement is governed by basic contract principles."
Ibid. "Thus, when the intent of the parties is plain and the language is clear and
unambiguous, a court must enforce the agreement as written, unless doing so
would lead to an absurd result." Ibid. (citing Sachau v. Sachau, 206 N.J. 1, 5-6
(2011) ("A court's role is to consider what is written in the context of the
circumstances at the time of drafting and to apply a rational meaning in keeping
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with the expressed general purpose." (internal quotations and citations
omitted))). "[A]ny ambiguity in the expression of the terms of a settlement
agreement" may require a hearing "to discern the intent of the parties at the time
the agreement was entered and to implement that intent."5 Ibid. Although the
Family Part is vested with greater discretion when interpreting settlement
agreements, the judge is still required to "discern and implement 'the common
intention of the parties[,]' and 'enforce [the mutual agreement] as written.'" Id.
at 46 (alterations in original) (citations omitted) (first quoting Tessmar v.
Grosner, 23 N.J. 193, 201 (1957); and then quoting Kampf v. Franklin Life Ins.
Co., 33 N.J. 36, 43 (1960)).
When interpreting a contract, "a specific, defined term controls a general,
undefined term" "so long as it leads to a result in harmony with the contracting
parties' overall objective." Gil v. Clara Maass Med. Ctr., 450 N.J. Super. 368,
378 (App. Div. 2017). Therefore, when both general language of a contract and
specific language address the same issue, the specific language controls. See,
e.g., Bauman v. Royal Indem. Co., 36 N.J. 12, 22 (1961) (stating "[i]n the
5
"[T]he doctrine of contra proferentem, which requires a court to interpret an
ambiguous clause in favor of the non-drafting party, usually does not apply in a
matrimonial setting because the matrimonial agreement is commonly the
product of negotiation, not only over the general terms of the agreement but also
over the language in the agreement." Quinn, 225 N.J. at 46.
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interpretation of a contractual instrument, the specific is customarily permitted
to control the general and this ordinarily serves as a sensible aid in carrying out
its intendment"); Homesite Ins. Co. v. Hindman, 413 N.J. Super. 41, 48 (App.
Div. 2010) (referencing "the well-recognized rule of construction that when two
provisions dealing with the same subject matter are present, the more specific
provision controls over the more general"); Burley v. Prudential Ins. Co. of Am.,
251 N.J. Super. 493, 500 (App. Div. 1991) (recognizing "[w]here two clauses in
a contract clearly conflict, the more specific provision . . . usually controls over
the more general").
Here, defendant contends Article 7.12 of the PSA provides:
Notwithstanding any language contained in
[Lepis, 83 N.J. 139] and [Crews, 164 N.J. 11], this
[a]greement shall be non-modifiable and irrevocable
even if any of the following occur, solely or in
combination to either or both of the parties;
....
(c) increase or decrease in income of either party
regardless of how substantial such change is and
regardless of scope or duration of said increase or
decrease;
....
Specifically, [the parties] waive any rights they
may have under the Lepis decision to argue that
subsequent changes and circumstances render the
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alimony aspects of this [a]greement either unfair or
inequitable or subject to modification for any reason
whatsoever. It is the specific intention of the parties to
estop and prevent each other from seeking any
modification of the provisions of this [a]greement
recognizing that without such provisions contained
herein, neither party would have agreed to the alimony
provisions of this [a]greement, the equitable
distribution provisions of this [a]greement, and the
other terms of this [a]greement. The parties
acknowledge the rationale in the Lepis decision has
been explained to them in the sense that a substantial
change of circumstances would permit either party to
make an application to a court of competent jurisdiction
to modify the within [a]greement. It is the intention of
the parties hereto that the rationale of the Lepis case not
apply to any present or future interpretation of the
reasonableness of this [a]greement, as they intend, and
they acknowledge, that this [a]greement shall express
their rights and obligations now and for all time, despite
any substantial changes in their monetary
circumstances.
[(Emphases added)].
Defendant's argument relies on the second paragraph of Article 7.12, which
specifically references the alimony provision of the PSA. Article 2, "Support
and Maintenance of Husband and Wife," contains an anti-Lepis clause, whereas
Article 4, "Support, Maintenance and Education of Child," does not.
The second sentence of Article 7.12 reads:
It is the specific intention of the parties to estop and
prevent each other from seeking any modification of the
provisions of this [a]greement recognizing that without
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such provisions contained herein, neither party would
have agreed to the alimony provisions of this
[a]greement . . . and the other terms of this [a]greement.
[(Emphases added).]
In the matter under review, the judge found there was no change of
circumstance warranting a modification of child support, and defendant had not
met his burden of proof on this issue. The judge emphasized she was not ruling
that child support could not be modified, but noted there was no reason to change
the imputations of income set forth in the PSA. Because plaintiff agreed to
continue to be imputed $60,000 per year of earned income even though she is
no longer employed, and defendant's income, earned and potentially unea rned,
is in excess of the $50,000 amount he agreed to be imputed to him in the PSA,
the judge correctly denied his motion to recalculate child support on this basis
alone.
Moreover, we conclude there was no need for the judge to address whether
the parties anti-Lepis clause pertains to both alimony and child support because
defendant did not demonstrate a prima facie case of changed circumstances or
other good cause in order to even reach that analysis. Therefore, we discern no
basis to address defendant's argument on this issue because it was not
adjudicated by the Family Part judge, and we decline to exercise original
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jurisdiction.6 See also Rivera v. Union Cnty. Prosecutor's Off., ___ N.J. ___,
___ (2022) (slip op. at 10).
Saliently, we note defendant failed to comply with Rule 5:5-4(a)(4), which
provides for "[m]otion attachments for modification or termination of alimony
or child support not based on retirement":
When a motion or cross[-]motion is filed for
modification or termination of alimony or child
support, other than an application based on retirement
filed pursuant to N.J.S.A. 2A:34-23(j)(2) and (j)(3), the
movant shall append copies of the movant's current
[CIS] and the movant's [CIS] previously executed or
filed in connection with the order, judgment or
agreement sought to be modified. If the court
concludes that the party seeking relief has demonstrated
a prima facie showing of a substantial change of
circumstances or that there is other good cause, then the
court shall order the opposing party to file a copy of a
current [CIS].
In support of his motion, defendant submitted a current CIS but attached
an incomplete tax return in contravention of Rule 5:5-4(a)(4). Notably, no
6
Appellate courts can "exercise ... original jurisdiction as is necessary to the
complete determination of any matter on review." R. 2:10-5. That power should
be invoked "sparingly," State v. Jarbath, 114 N.J. 394, 412 (1989), and is
generally used when the record is adequately developed and no further fact-
finding is needed, Price v. Himeji, LLC, 214 N.J. 263, 294-95 (2013); State v.
Santos, 210 N.J. 129, 142, 42 (2012). Original jurisdiction can also be invoked
"to eliminate unnecessary further litigation," Santos, 210 N.J. at 142 or when
the public interest favors "an expeditious disposition of [a] significant issue[ ],"
Karins v. City of Atlantic City, 152 N.J. 532, 540-41 (1998).
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Schedule E (Form 1040), Supplemental Income and Loss to report income and
expenses related to defendant's rental apartment was included, thereby
precluding an analysis of the anti-Lepis provision in the PSA as it pertains to
child support. Therefore, the aspect of defendant's motion seeking to recalculate
child support did not even have to be considered by the judge and could have
been denied without prejudice to defendant refiling the motion with the required
Rule 5:5-4(a)(4) documentation included. 7 Therefore, we discern no error, let
alone reversible error, in the judge's denial of defendant's motion insofar as it
sought to recalculate child support, which was without prejudice to a future
adjudication as to the anti-Lepis argument.
Any arguments asserted on defendant's behalf we have not directly
addressed are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
7
It is unclear from the record whether defendant submitted his prior CIS's with
his motion, which is also required for an adjudication of the child support issue .
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