PER CURIAM.
Defendant appeals from an order that, inter alia, denied his motion for modification of child support and parenting time without a plenary hearing, denied his motion to find plaintiff in violation of litigant's rights, and granted plaintiff counsel fees. We affirm.
The parties, who never married, lived together for approximately one year and had two daughters, born in 2005 and 2008. On September 15, 2010, the parties entered into a consent order regarding support, custody and visitation.
On the day after this order was entered, defendant filed a motion seeking reduction of his support obligation and recalculation based upon his unemployment benefits pursuant to the Child Support Guidelines and also seeking a change in custody and parenting time. The parties appeared before a hearing officer on December 10, 2010, each seeking a plenary hearing, and were referred to a judge. Defendant asserts that his application was denied "solely due to an incomplete Case Information Statement." No documentation regarding the disposition of this application has been included in the record.
In May 2011, another consent order was entered. Various issues were addressed, including a modification of defendant's parenting time to permit it to be unsupervised for alternate weekends and for Wednesdays from after school until 7:00 p.m. The order also provided, "Each party may call the children between 6:30-7:00 pm in the evening when they are not in their care."
Defendant filed the motion that is the subject of this appeal in September 2011. Defendant sought to recalculate his child support obligation based on the Child Support Guidelines; reduce his child support arrears; modify parenting time to a shared custody arrangement on a 50/50 basis and find plaintiff in violation of his rights. In the alternative, defendant asked the court to enter an order that gave him the first option to care for the children when plaintiff was unable to care for the children during her scheduled parenting time.
In support, he provided a certification, which included the following factual assertions. At the time of the consent order, he was unemployed and "receiving a net of $836.00 per bi-weekly, and $50.00 in stimulus checks bi-weekly." The amount of support included in the consent order was not calculated pursuant to the Child Support Guidelines. He received notification in November 2010 that his unemployment benefits would expire. In March 2011, his new business, Ironman Fabricating and Hauling, Inc., became operational. His income from the business was inconsistent, making it "very difficult to make steady weekly payments of $200.00 in child support[.]" Defendant stated his understanding that child support can be recalculated "when there is a significant enough change of circumstances" and his belief "that starting [his] own company qualifies as a significant enough change."
Defendant included an updated case information statement (CIS) in which he stated his gross income for 2010 was $24,674 and his net income was $22,236. Among the monthly expenses defendant listed on his CIS were: mortgage and real estate taxes of $714; automobile payment and insurance of $702; cell phone of $110; and food and household supplies of $500. Thus, just these expenses totaled $24,212 per year, exceeding his after-tax income. Although his CIS listed a mortgage payment and real estate taxes, expenses that identified him as a homeowner, the balance sheet failed to identify any real property as an asset or any mortgage as a liability. Similarly, although a monthly automobile payment is listed, no value is provided for the automobile he owns. The 2010 tax return that was provided was clearly marked "For Info Only — Do not file." Defendant also provided profit and loss statements for his business from January 2011 that were uncertified.
Plaintiff opposed defendant's motion. In addition, she asked the court to find defendant in violation of litigant's rights for failure to pay child support and to award her counsel fees.
The motion judge denied all of defendant's requests for relief. We summarize the rulings that are the subject of this appeal.
The judge acknowledged the parties' agreement that neither had to satisfy the
The judge addressed defendant's request for a change in parenting time as follows:
In denying defendant's request that plaintiff be found in violation of his rights for failing to follow the provisions of the May 2011 order, the judge stated he found no "showing that the plaintiff's not been following that order."
On the cross-motion, the judge found that defendant owed $3500 in child support arrears but lacked the ability to make a lump sum payment to satisfy that amount. Accordingly, the judge ordered that the arrears be satisfied by payment of an additional $35 per week. As to plaintiff's request for counsel fees, the judge said he was "troubled by a number of the positions that have been advanced by the defendant in this matter." The judge credited defendant with making the effort that warranted the modification to the first consent order that "put him in a better situation to be able to enjoy parenting time." The judge then set forth his reasons for awarding plaintiff counsel fees:
Defendant presents the following issues for our consideration in this appeal:
In reviewing a decision of a family court, we "defer to the factual findings of the trial court[,]"
Defendant first argues that the motion judge was obliged to modify the order "in accordance with what was fair and equitable as of October 7th, 2011, the date of the hearing[,]" and that the judge's failure to do so was a clear abuse of discretion. Defendant contends that the judge's decision was flawed because he ignored the fact that the parties had explicitly waived the application of
Good cause consists of "a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that injustice would result from the application of the guidelines."
As a preliminary matter, defendant's challenges to the motion judge's factfinding lack merit. Defendant's representations regarding his "new income" were wholly unsubstantiated. The purported documentation he submitted consisted of uncertified profit and loss statements and income tax forms that were not copies of filed forms but copies clearly marked that they were not to be filed. His CIS was similarly inadequate. For example, although it listed expenses for home ownership as a monthly, ongoing liability, there was no acknowledgment of the value of the asset or even a disclosure of the mortgagee. The documentation of defendant's "new income" was, therefore, an unreliable basis for the court to use to determine that the amount of support agreed upon by the parties was not fair and equitable. We discern no abuse of discretion in the court's decision not to modify defendant's support obligation.
Defendant next challenges the motion judge's decision not to modify the custody arrangement to shared physical custody on an alternating weekly basis. "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children."
The motion judge found that there was not a "sufficient change in circumstances to justify the change in the parenting time" set forth in a consent order that was only four months old. We agree. On appeal, the only change in circumstances identified by defendant is that he is now running his own business and would center his schedule around his children's lives. In fact, he was running his own business in May 2011, when the consent order he seeks to modify was agreed upon. His application plainly failed to establish a prima facie case of changed circumstances warranting modification. There was no abuse of discretion in denying his request for modification or for a plenary hearing.
Defendant's argument that the motion judge erred in declining to find plaintiff in violation of his rights is similarly lacking in merit. Defendant made multiple complaints about plaintiff, most of which were not supported by the identification of any provision in an order that was violated by the conduct attributed to plaintiff. On appeal, defendant contends that plaintiff has violated provisions of the May 2011 consent order that pertain to telephone time and vacations. We have reviewed his contentions in light of the order and agree with the motion judge that the record fails to show that plaintiff willfully violated any order.
Finally, defendant challenges the award of $1410 in counsel fees to plaintiff. Where the judge follows the law and "makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion."
In making the award of counsel fees here, the motion judge noted the following considerations: plaintiff was required to defend against a motion that was lacking in support; there were no prior fee awards; plaintiff obtained the relief sought; the relief sought by plaintiff was to enforce defendant's child support obligation; and the fees were reasonable in terms of the hourly rate and the amount of time expended. As we have noted, we also found defendant's application to lack adequate support. The motion judge's consideration of other factors set forth in
Affirmed.
