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Burstein v. Burstein

Decided: February 3, 1982.

MARGARET BURSTEIN, PLAINTIFF-RESPONDENT,
v.
DAVID BURSTEIN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division, Bergen County.

Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

This is a post-judgment matrimonial controversy. By way of a consolidated appeal, defendant-husband David Burstein challenges two orders of the Chancery Division. The first granted the motion of plaintiff-wife Margaret Burstein for enforcement of an "arrearages" judgment in an amount in excess of $60,000 and denied defendant's motion to modify or vacate the judgment. The second ordered a wage execution against defendant in the amount of 55% of his disposable weekly earnings in satisfaction of that judgment.

The parties were divorced in 1975 by a judgment entered in New York, which incorporated the parties' agreement as to the financial consequences of the termination of their marriage. Defendant agreed to pay plaintiff alimony in the sum of $120 a week, to maintain medical and hospital care coverage for her and to pay those of her medical and hospital expenses not covered, to maintain an insurance policy on his life designating her as irrevocable beneficiary, to pay all federal and state income taxes on all payments made by him to her, and to pay for the maintenance of her automobile. With respect to the marital residence owned by them jointly, defendant agreed to convey his interest therein to plaintiff subject to the existing mortgage thereon held by his parents. He also agreed to pay all expenses therefor, including mortgage payments, taxes, insurance, utility costs and maintenance charges.

Following the entry of the divorce, defendant, a retailer, apparently suffered business reverses. In 1976 he liquidated his New York business and purchased a similar business in Hackensack, New Jersey. That business did not do well, and defendant asserts that his income dropped from $40,000 a year when the divorce was entered to about $19,000. In 1979 he attempted to borrow $75,000 from his father to buy another store in Bayonne. It is his further assertion that instead of lending him the money, his father himself purchased the store and hired defendant to operate it at a gross weekly salary of $350. Needless to say,

during this entire period defendant fell in arrears in respect of his support obligations and, ultimately, plaintiff lost the marital residence, having to sell it to avoid foreclosure.

By reason of defendant's default in his obligations, plaintiff filed an action in the New Jersey Superior Court for enforcement of the New York judgment, defendant having removed his residence to this State. A plenary hearing was held in 1979 not only as to plaintiff's right to enforcement of the judgment but also as to the allegation of defendant's counterclaim contending that the original agreement was entered into by him under duress, but that even if the agreement were enforceable, it should be modified by reason of his changed circumstances.*fn1

Following the hearing, a judgment was entered on August 1, 1979 affirming the validity of the agreement and fixing arrearages on the alimony and automobile payments in the amount of $8,903. The judgment further awarded plaintiff the sum of $54,480, representing her losses resulting from the sale of the marital residence. That sum consisted of $34,000 due to the mortgagee, $6,600 for real estate broker commissions, $3,263.49 for unpaid taxes, $200 for an exterminator's bill, $4,251.46 paid to plaintiff's brother-in-law "as a result of the foreclosure," and $6,150 for attorney's fees in defending the foreclosure action. Plaintiff's attorney was also allowed a fee for the enforcement action, to be paid by defendant. The judgment also reaffirmed defendant's obligations in respect of continuing alimony of $120 weekly and payment of medical and hospital expenses and life insurance premiums. It relieved him, however, of any further obligation for plaintiff's automobile expenses and for her federal and state income taxes. No appeal was taken from this judgment.

Defendant continued to default both as to past and current obligations adjudicated by the August 1979 order, and plaintiff accordingly moved for enforcement thereof. Defendant cross-moved for its vacation or modification. A hearing was held and the consequent order entered in October 1980 is the first of the orders here appealed from. That order, in accordance with the judge's letter opinion, confirmed the August 1979 judgment in all respects. It was the trial judge's view that there was an inadequate showing made to warrant relief from the "arrearages" portion of the judgment pursuant to R. 4:50-1, particularly in view of defendant's failure to have appealed therefrom, and further, that there was no change in defendant's circumstances since the August 1979 order had been entered.

In view of defendant's continued failure of compliance, plaintiff sought further relief by way of an application for a wage execution. That application was granted by an order entered on December 12, 1980, directing the issuance of a 55% wage execution to satisfy the "arrearages" fixed by the August 1979 judgment, totaling $63,383.95. This is the second order here appealed from.

We are satisfied from our review of the record that the order of October 2, 1980, which essentially confirmed the judgment of August 1979, must be affirmed. There was clearly an insufficient showing before the court of any material change in defendant's circumstances during the intervening period as would warrant relief from the continuing support provisions of the August 1979 judgment, and no showing at all implicating any basis of relief under R. 4:50-1 from the arrearages portion. Defendant, having opted not to appeal from the August 1979 judgment, was evidently attempting to use the subsequent enforcement proceeding which led to the October 1980 order as an ...


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