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Larbig v. Larbig

February 2, 2006

IVETTE LARBIG, PLAINTIFF-RESPONDENT,
v.
ROLAND LARBIG, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. FM-18-605-01.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 17, 2006

Before Judges Parker, C.S. Fisher and Yannotti.

In this appeal, we affirm the trial judge's denial of a motion for a modification of defendant's obligations to make various monthly payments to plaintiff. The trial judge did not abuse his discretion in leaving undisturbed the alimony and child support obligations because defendant's motion was filed only twenty months after entry of the judgment of divorce -- a fact that strongly suggested defendant's reduced income had not become permanent. The judge also correctly refused to modify defendant's additional obligation to pay plaintiff $2,600 per month for five years because that obligation was in the nature of equitable distribution, which may not be modified on a claim of changed circumstances.

I.

The parties were married on August 20, 1986. That marriage was dissolved by way of a judgment of divorce entered on June 19, 2002, which incorporated the terms of the parties' property settlement agreement (PSA). As relevant to the issues presented, the PSA required defendant to pay plaintiff $10,000 per month in alimony, $2,000 per month in child support,*fn1 and $2,600 per month in equitable distribution for a period of five years. Approximately, twenty months after the entry of the judgment of divorce, defendant Roland Larbig (defendant) moved for the modification of these alimony, child support and equitable distribution obligations. Defendant claimed that his payments should be reduced because his business was then in decline and his income significantly diminished as a result.

For reasons set forth in a written decision, Judge Thomas H. Dilts denied defendant's motion in its entirety and granted the motion of plaintiff Ivette Larbig (plaintiff) for counsel fees. An order memorializing these determinations, and others, was entered on April 16, 2004.

Defendant's timely motion for reconsideration was denied for reasons set forth by Judge Dilts in an oral decision on June 11, 2004. An order denying that motion was entered the same day.

Defendant appealed, seeking our review of the orders of April 16, 2004 and June 11, 2004, and raising the following issues for our consideration:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR MODIFICATION OF ALIMONY AND CHILD SUPPORT BASED ON CHANGED CIRCUMSTANCES, AS DEFENDANT HAS SET FORTH A PRIMA FACIE BASIS FOR MODIFICATION IN HIS MOVING PAPERS.

II. WHERE THERE ARE MATERIAL ISSUES OF FACT IN DISPUTE PRESENTED IN CERTIFICATIONS AND EXHIBITS FILED WITH THE COURT IN CONNECTION WITH AN APPLICATION FOR MODIFICATION, THE TRIAL COURT IS MANDATED TO HOLD A PLENARY HEARING TO RESOLVE THOSE ISSUES.

III. THE STANDARD OF REVIEW FOR MODIFICATION OF ASSETS WHICH ARE CHARACTERIZED BY THE PARTIES AS BEING BOTH SUPPORT AND EQUITABLE DISTRIBUTION SHOULD BE THAT OF "CHANGED CIRCUMSTANCES UNDER LEPIS,*fn2 AND NOT THAT SET ...


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