Before Judges Kestin, Wefing and Steinberg.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County.
In these consolidated appeals, both parties raise issues bearing upon certain terms of post-divorce-judgment orders entered by the trial court. In A-6158-96, defendant appeals from the trial court's orders denying his motion for modification of alimony and child support on the basis of changed circumstances and his motion for reconsideration. Defendant also argues that as a result of his subsequent incarceration he is entitled to a suspension of his support obligations. In A-1990-97, plaintiff appeals from the trial court's order denying her motion for enforcement. The latter order was based on a finding that defendant did not have a current ability to pay the full amount of the mandated support.
Plaintiff and defendant were divorced in September 1996. A dual judgment of divorce was entered incorporating a property settlement agreement which provided, inter alia, that defendant would pay a total of $5,500 per month to plaintiff equally divided between alimony and child support, $2,750 for each. At the time of the divorce, defendant was a practicing attorney with an annual income of approximately $200,000 per year. Of that amount, $135,000 was attributable to his private practice; the remainder came from his earnings as corporate counsel for a trucking company.
Several months after the divorce, in December 1996, defendant received a notice from the Office of Attorney Ethics that a grievance had been filed against him by one of his clients. In response to the grievance, defendant admitted that from 1989 to 1991 he had misappropriated for personal use over $500,000 in clients' trust funds held in his attorney's trust account. In this matrimonial matter, defendant alleges that the misappropriated funds were deposited into joint bank accounts held by him and plaintiff, and into a corporate account that the parties held in connection with a real estate venture. Defendant further asserts that, in 1993, when it became clear that he could not replace the money, he disclosed his misappropriation to his wife. Plaintiff denies that she had any knowledge prior to the divorce of defendant's misuse of his clients' property.
Given the gravity of his offense, defendant was advised by counsel that an ethics proceeding would be futile, i.e., that there was no chance he would avoid immediate suspension and eventual disbarrment. Based on this advice, defendant consented to disbarrment, and an order to that effect was entered by the New Jersey Supreme Court in January 1997. In re Donald D. Hamilton, 147 N.J. 321 (1997).
Although defendant lost his private practice income by reason of his disbarrment, he was able to maintain his employment with the trucking company in an administrative position, earning an annual income of $90,000. Because his income had diminished, defendant unilaterally reduced his support payments beginning February 1997. In April 1997, defendant filed a motion for modification of his support obligations claiming his disbarrment and its effects as changed circumstances. On May 30, 1997, the trial court denied defendant's motion. The order established arrearages as to both alimony and child support at $12,000, and granted other relief sought by plaintiff in a cross-motion. It also awarded plaintiff $2,500 in counsel fees. In June 1997, defendant filed a notice of appeal seeking review of the May 30 order.
Despite the denial of his motion for reduction, defendant continued to pay plaintiff less than the $5,500 combined monthly alimony and child support required by the judgment of divorce. As a result, in August 1997, plaintiff filed a motion seeking enforcement of the court's May 30, 1997 order and the terms of the judgment of divorce. Plaintiff also sought full payment of defendant's arrearages, incarceration of defendant if he continued to ignore the court's order, and other particular relief including counsel fees. In response, defendant filed a cross-motion opposing all the relief sought by plaintiff and seeking reconsideration of the May 30, 1997 order as well as other particular relief.
On September 12, 1997, an order was entered denying plaintiff's application for defendant's incarceration pending an ability to pay hearing. Particular relief plaintiff had sought was denied as well. The order also, inter alia, denied defendant's motions for reconsideration, for a partial stay, and to supplement the record.
Based on the evidence adduced at the ability to pay hearing, which was limited to the effects of defendant's disbarrment upon his income and his earning capacity, the court found that defendant was "employed, making $90,000 a year. He is paying $3,050 plus college expenses and other necessary expenses." The judge concluded that while defendant was not entitled to a modification of the alimony and child support obligation, he did not, at that time, have the current ability to pay it fully and discharge his other financial obligations fixed in the May 30, 1997 order. Thus, the court determined that defendant was not a "resistive suitor" and that incarceration was therefore inappropriate. See Federbush v. Federbush, 5 N.J. Super. 107, 112 (App. Div. 1949) ("Incarceration . . . is part of equitable process to enforce judgment, but it is available only against a resistive suitor capable of meeting the judgment."); Sgambati v. Sgambati, 242 N.J. Super. 688, 694 (Ch. Div. 1990); Biddle v. Biddle, 150 N.J. Super. 185, 191 (Ch. Div. 1977; see also, Busch v. Busch, 91 N.J. Super. 281, 285 (Ch. Div. 1966). The resulting order, entered on October 21, 1997, provided that defendant would not be incarcerated as long as he continued to make monthly support payments of $1,375 in child support and $1,375 in alimony plus $300 per month towards arrears, which would perforce continue to accrue. At the conclusion of the trial court's ruling on the record, the following colloquy ensued:
MR. CUTLER [plaintiff's attorney]: Judge, that still leaves the issue, though, of how Your Honor plans to enforce the ...