K.W. VS. G.Y. (FM-14-0985-14, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0013-20
K.W.,

Plaintiff-Respondent,

v.

G.Y.,

Defendant-Appellant.
___________________________

Submitted May 25, 2021 – Decided July 7, 2021

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0985-14

Laufer, Dalena, Jensen, Bradley & Doran, LLC,
attorneys for appellant (Peter G. Bracuti, of counsel and
on the brief).

K.W., respondent pro se.

PER CURIAM

In this post-judgment matter, defendant appeals from a July 24, 2020 order

denying his motion for reconsideration of the denial of his request to reduce his
child support obligations. 1 He argues that his economic circumstances changed

when his application for pension benefits was delayed because of the COVID-19

pandemic. The family court found that he had not demonstrated a substantial

change of circumstances. We agree and affirm.

I.

The material facts are not in dispute. The parties were married in March

2005. They have two children, daughters born in 2005 and 2009. They were

divorced in December 2019.

Their divorce followed a seven-day trial. The dual final judgment of

divorce (JOD) directs defendant, the father, to pay $126 per week in child

support. The JOD also requires defendant to pay 46% of the children's

extracurricular expenses, up to an annual cap of $6,000. Those support awards

were based on plaintiff's annual income of just over $149,000 and defendant's

imputed annual income of just over $129,700. More specifically, the family

court imputed annual income to defendant based on $58,101.48 in pension

income, $56,086 in employment income, and $15,532 in investment income.

1
Because some of the procedural history involves allegations of domestic
violence, we use initials to protect privacy interests. R. 1:38-3(c)(12).
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The court then used the Child Support Guidelines to calculate defendant's

obligations.

For almost twenty-five years, and for most of the parties' marriage,

defendant had been a police officer. In March 2017, he was fired following an

internal affairs investigation and disciplinary determination that he had engaged

in misconduct related to a domestic dispute with plaintiff. He appealed his

termination, but we affirmed the decision upholding his termination. G.Y. v.

Twp. of Hanover, No. A-2600-17 (App. Div. Feb. 19, 2019) (slip op. at 21).

In February 2020, defendant applied to receive his police pension. He

explained that he waited until that time to file his application because he was

hoping to regain his former employment or find another position as a police

officer so he could get to twenty-five years of service, which would significantly

increase his pension payments.

Defendant certified that the Police and Firemen's Pension Review Board

has not acted on his pension application because the Board is not hearing cases

due to the COVID-19 pandemic. Accordingly, in April 2020, defendant filed an

application to decrease his child support payments and his contribution towards

the children's extracurricular expenses.

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 Plaintiff represents that she never received that motion. Nevertheless, the

family court denied the motion in an order dated June 5, 2020. The court also

issued a short statement of reasons explaining its decision. The family court

denied the application because defendant had stopped receiving unemployment

benefits in February 2020, but those temporary benefits did not factor into the

calculation of defendant's imputed income. The family court also explained that

it did not think defendant's application warranted oral argument.

On June 25, 2020, defendant moved for reconsideration and requested a

new determination that he had made a showing of substantial and involuntary

change in his financial circumstances. He argued that because he was not

receiving a pension, his child support should be reduced to $18 per week and

his contributions towards the children's extracurricular expenses should be

reduced to 38%.

On July 24, 2020, the family court issued a statement of reasons and order

denying defendant's second application. The court explained that it did not

believe the motion for reconsideration warranted oral argument. The court also

found that defendant did not make a prima facie showing of a substantial change

in circumstances because he did not provide documents explaining how long

pension applications typically take to be considered or how the delay was

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attributable to the COVID-19 pandemic. The family court also pointed out that

defendant bore some responsibility for the delay because he had waited almost

three months after entry of the JOD to apply for his pension.

II.

Defendant now appeals from the July 24, 2020 order. He argues that the

family court erred in (1) denying his motion for reconsideration; (2) failing to

find that he had established a substantial change of his financial circumstances;

(3) failing to make a temporary adjustment to his child support obligation under

N.J.S.A. 2A:34-23; and (4) failing to hear oral arguments. We discern no abuse

of discretion or error of law warranting a reversal and, therefore, we affirm.

Orders for child support "may be revised and altered by the court from

time to time as circumstances may require." N.J.S.A. 2A:34-23. Appellate

courts use an abuse of discretion standard "[w]hen reviewing decisions granting

or denying applications to modify child support." 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)). We also use an abuse of discretion standard when reviewing an order

denying a motion for reconsideration. Brunt v. Bd. of Trs. Police & Firemen's

Ret. Sys., 455 N.J. Super. 357, 362 (App. Div. 2018). "An abuse of discretion

'arises when a decision is "made without a rational explanation, inexplicably

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depart[s] from established policies, or rest[s] on an impermissible basis."'"

Jacoby, 427 N.J. Super. at 116 (quoting Flagg v. Essex Cnty. Prosecutor, 171

N.J. 561, 571 (2002)).

Child support orders are subject to modification on a showing of a change

in circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citations omitted).

The party seeking modification of a prior order or judgment must establish a

prima facie showing of changed circumstances. Id. at 157. A change in

circumstances can include a decrease in income. Quinn v. Quinn, 225 N.J. 34,

49 (2016). Generally, however, the movant must show that there has been a

"substantial, non-temporary change[] in [his or her] ability to . . . pay support."

Gordon v. Rozenwald, 380 N.J. Super. 55, 67-68 (App. Div. 2005).

Consequently, even when there is a large reduction in income, a reduction in

child support should not be granted if the decrease is temporary. Donnelly v.

Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009); Larbig v. Larbig, 384

N.J. Super. 17, 22-23 (App. Div. 2006). Moreover, the needs of the children are

always a consideration. N.J.S.A. 2A:34-23(a)(1).

Defendant failed to make a prima facie showing of a substantial change in

his financial circumstances. There is nothing in the record explaining how and

when defendant will obtain his police pension. More critically, there is nothing

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in the record explaining exactly how and why the COVID-19 pandemic has

impacted the Board of Trustees of the Police and Firemen's Retirement System.

Consequently, defendant has made no showing of how long he will have to wait

to receive his pension, or whether he will be given a retroactive payment dating

back to February 2020, when he first applied for his pension.

We reject defendant's argument that he established a change of

circumstances "as a matter of law." That contention is inconsistent with well-

established law that requires the moving party to show a change of

circumstances. Lepis, 83 N.J. at 146; Jacoby, 427 N.J. Super. at 116.

We also reject defendant's contention that it is inequitable to deny his

application since he is not responsible for the COVID-19 pandemic. While

defendant is clearly not responsible for the pandemic, he has failed to present

facts establishing how long there will be a delay in his receipt of his pension and

whether that temporary delay will cause a prolonged substantial change in his

economic circumstances. Accordingly, it would not be equitable to the children

to make a change when defendant has not made the required showing. Donnelly,

405 N.J. Super. at 128 (citing Larbig, 384 N.J. Super. at 23) (explaining that the

determination of whether there has been a change of circumstances long enough

to warrant modification is committed to the family court's discretion).

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 We also reject defendant's argument that the family court should have

fashioned a temporary order using its authority under N.J.S.A. 2A:34-23. The

section defendant cites, N.J.S.A. 2A:34-23(k), permits temporary reductions in

alimony payments, not child support obligations. While the family court has

authority in certain circumstances to temporarily reduce child support

obligations, see Kuron v. Hamilton, 331 N.J. Super. 561, 576 (App. Div. 2000),

that authority is committed to the sound discretion of the family court, J.B., 215

N.J. at 325-26. We discern no abuse of that discretion here.

Finally, we discern no basis to reverse the family court's order because the

court did not hear oral argument. The better practice is to hear oral argument

when requested. See R. 5:5-4(a)(1); see also Filippone v. Lee, 304 N.J. Super.

301, 306 (App. Div. 1997). Nevertheless, there are circumstances when family

courts have discretion not to hear oral argument. Palombi v. Palombi, 414 N.J.

Super. 274, 285-86 (App. Div. 2010). Defendant had a full and fair opportunity

to present his arguments in support of his application to reduce his child support .

Moreover, he has not pointed to any substantive issue not considered by the

family court. Therefore, we see no reason to remand this matter for oral

argument.

Affirmed.

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