On appeal from Superior Court, Chancery Division, Family Part, Bergen County.
Petrella and Brochin. The opinion of the court was delivered by Petrella, P.J.A.D.
Plaintiff Winston Wei appeals from the entry of an order denying his post-judgment application in a matrimonial action for reduction of alimony and support. The dual judgment of divorce, which incorporated a property settlement agreement was entered on May 1, 1989.
The parties have one daughter of the marriage who was born on October 26, 1986. Under the May 1, 1989 property settlement agreement, plaintiff former husband was required to pay the wife $2,500 per month as alimony and $1,500 a month as child support until the sale of the marital home. Upon the sale of the marital home, the agreement requires plaintiff to pay $2,000 per month as alimony and $1,500 as child support. If defendant returns to work for more than 30 hours per week before September 9, 1993 or when the child begins first grade, alimony will be reduced by $500 to $1,500 per month. When the child enters first grade or beginning September 9, 1993, whichever occurs first, plaintiff's alimony obligation ceases. We note that plaintiff essentially failed to honor the terms of the property settlement agreement almost from its inception.
On December 27, 1989, defendant moved for an order enforcing litigant's rights. Plaintiff's response was a cross-motion under Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), for relief from the alimony and support obligations of the May 1, 1989 agreement. The motion judge (the same judge who entered the dual judgment of divorce), essentially granted defendant's application and denied plaintiff's cross-motion and entered an order to this effect on March 2, 1990.
On April 27, 1990, defendant again moved for an order holding plaintiff in violation of litigant's rights since defendant had failed to comply with the terms of the March 2, 1990 order. An order was entered again to enforce litigant's rights and authorizing a warrant to be issued for plaintiff's arrest upon defendant's ex parte certification.
On May 24, 1990, plaintiff brought an order to show cause for reconsideration*fn1 of the May 7, 1990 order and again sought reduction of alimony and child support. This was an improper use of the order to show cause procedure, and the judge properly converted the application into a motion returnable June 8, 1990. On the return date plaintiff's application was denied.
Apparently, the arrest warrant aspect of the order has been held in abeyance pending an "ability to pay" hearing. See Mastropole v. Mastropole, 181 N.J. Super. 130, 141, 436 A.2d 955 (App.Div.1981); Essex County Welfare Bd. v. Perkins, 133 N.J. Super. 189, 195, 336 A.2d 16 (App.Div.1975), certif. den. 68 N.J. 161, 343 A.2d 449 (1975). As far as we can determine, no such hearing has been held to date.*fn2 Our determination is, thus, without prejudice to any such future "ability to pay" hearing.
On this appeal, plaintiff challenges the provisions of the June 11, 1990 order which require him to continue monthly payments of $4,000 in alimony and child support, $500 towards arrearages (which total $9,596.55), as well as the denial of his requested relief. Plaintiff argues that the trial judge erred in failing to reduce his alimony and child support obligations. He also argues that the trial judge erred in failing to conduct a plenary hearing.
Plaintiff has remarried. He argues that the new obligations assumed on his remarriage should be considered as changed circumstances in support of his application for relief under Lepis. He contends that due to his remarriage his financial obligations have increased.
We have considered plaintiff's arguments in light of the record and the arguments presented and conclude that they are without merit. R. 2:11-3(e)(1)(E). In our view, plaintiff failed to make a prima facie showing that changed circumstances have substantially impaired his ability to comply with the property settlement agreement and the terms of the orders entered by the court. See Gayet v. Gayet, 92 N.J. 149, 154-155, 456 A.2d 102 (1983); Calcaterra v. Calcaterra, 206 N.J. Super. 398, 401 n. 1, 502 A.2d 1180 (App.Div.1986); and Shaw v. Shaw, 138 N.J. Super. 436, 440, 351 A.2d 374 (App.Div.1976). The information submitted to us indicates that plaintiff's income has increased between 1988 and 1989. If the income submitted for the period of January 1 through June 5, 1990, is pro rated, the ...