CARRIE HINCAPIE v. GEORGE ERONINI (2013)

Defendant George Eronini appeals the Family Part's denial of his motion to reduce his child support obligation for his minor daughter.   We affirm.

The child in question was born in 2010.   Her mother, plaintiff Carrie Hincapie, is the child's parent of primary residence.¹  She is the mother of one or more other dependent children, born outside of her prior relationship with defendant.   Defendant likewise has other dependent children.   The parties were not married to one another.

According to defendant, he is an immigrant from Nigeria who has been the subject of adverse rulings by immigration authorities that he contends have either prohibited or hindered his lawful ability to work in the United States.   He claims that he has had difficulty obtaining employment and that his child support obligations therefore must be reduced.

The present child support level of $203 weekly, plus $25 in arrears, was established (or possibly reestablished) in November 2011.   The support level was calculated pursuant to the Child Support Guidelines, which includes other-dependent deductions for defendant and also plaintiff.   See Pressler & Verniero, Current N.J. Court Rules, Appendix IX–A and IX–B to R. 5:6A at 2587–88, 2612–13 (2014).²  The Guidelines worksheet shows plaintiff's weekly gross taxable income at $405 and defendant's weekly amount at $1708.   According to plaintiff's submission, she was collecting unemployment and benefits through the WIC program.   As of February 22, 2012, defendant reportedly owed $3,108 in arrears.

Defendant contested the Guidelines' determination and initially was heard by a child support hearing officer in Bergen County, who rejected his contentions.   The parties then appeared before a Family Part judge, Hon. Peter J. Melchionne, who declined to set aside the hearing officer's ruling.   Significantly, Judge Melchionne observed that he found defendant to be “totally incredible” and that defendant had provided “absolutely no basis” for his contentions.   For example, defendant contended that he did not have a license to sell or broker real estate, but the record shows that he was nevertheless admittedly engaged in marketing rental properties in the State of New York and also was deriving rental income from subtenants.

The judge issued orders on February 22, 2012 denying defendant's motion for reduction.   Rather than filing a timely appeal of those orders, defendant moved for reconsideration, which Judge Melchionne denied in an order dated May 24, 2012.   The judge noted in that order that defendant had improperly moved for reconsideration outside of the twenty-day time frame prescribed by Rule 4:49–2.   Defendant then filed the present appeal on July 12, 2012, and an amended notice of appeal on August 13, 2012.³

As a preliminary matter, we observe that defendant is not entitled to any relief from this court because his appeal is untimely.   Rule 2:4–1(a) requires appeals to be filed within forty-five days of final orders of the trial court.   Although that deadline can be tolled by the timely filing of a motion for reconsideration with the trial court, see R. 2:4–3(e), defendant did not file such a timely motion here.   Defendant's appeal was filed exceedingly later than forty-five days after the February 22, 2012 order.   His appeal of the May 24, 2012 reconsideration denial, which also was not filed on time, did not retroactively enable our review of the February 22, 2012 orders.   See also R. 2:4–4(a) (allowing an extension of time to file an appeal, on a showing of good cause and the absence of prejudice, but only “for a period not exceeding thirty days”).

Even if we were to reach the merits of defendant's contentions, we discern no basis to set aside Judge Melchionne's ruling.   A party seeking modification of a child support obligation “has the burden of demonstrating a change in circumstances warranting an adjustment.”  Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (App.Div.2012) (citing Lepis v. Lepis, 83 N.J. 139, 157 (1980)).   Hence, it was incumbent upon defendant, as the moving party below, to sustain his burden with legally competent and persuasive evidence, including supporting documentation.

On appeal, a trial court's decision granting or denying an application to modify child support generally will be examined under an abuse of discretion standard.  Larbig v. Larbig, 384 N.J.Super. 17, 23 (App.Div.2006).  “ ‘The trial court has substantial discretion in making a child support award.   If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.’ ”  Jacoby, supra, 427 N.J.Super. at 116 (quoting Foust v. Glaser, 340 N.J.Super. 312, 315–16 (App.Div.2001)).

We have considered defendant's submissions, including several immigration documents, his 2010 federal income tax return, an eviction notice, and other miscellaneous papers.   Although those documents on their face suggest defendant has had personal difficulties, they do not suffice to demonstrate that the trial court's ruling, based on the evidence before it, was erroneous.   In addition, we must give deference to the judge's first-hand observation that the sworn testimony of defendant was not credible.  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

The Family Part's denial of defendant's motion is consequently affirmed, without prejudice to defendant's right to pursue prospective relief in that court through a new and properly supported application.

Affirmed.

FOOTNOTES

FN1. Plaintiff was represented by counsel in the Family Part proceedings but has not participated in the present appeal..  FN1. Plaintiff was represented by counsel in the Family Part proceedings but has not participated in the present appeal.

FN2. The Guidelines were “developed to provide the court with economic information to assist in the establishment and modification of fair and adequate child support awards.”   Pressler & Verniero, Current N.J. Court Rules, Appendix IX–A to R. 5.6A at 2579..  FN2. The Guidelines were “developed to provide the court with economic information to assist in the establishment and modification of fair and adequate child support awards.”   Pressler & Verniero, Current N.J. Court Rules, Appendix IX–A to R. 5.6A at 2579.

FN3. Defendant's original notice of appeal includes both the February 22 and May 24 orders of the Family Part. The amended notice, however, mentions only the February 22 orders..  FN3. Defendant's original notice of appeal includes both the February 22 and May 24 orders of the Family Part. The amended notice, however, mentions only the February 22 orders.

PER CURIAM