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Burdi v. Burdi

November 28, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1454-00.

Per curiam.


Telephonically argued October 30, 2007

Before Judges Parker, R. B. Coleman and Lyons.

In this post-judgment matrimonial matter, defendant Joseph Burdi appeals from two orders entered on September 8, 2006 enforcing a Property Settlement Agreement (PSA) dated January 12, 2000. We affirm.

The parties were married in 1974 and divorced twenty-seven years later on January 2, 2001. The one child born of the marriage is now emancipated. The parties entered a PSA on July 15, 2001, which was incorporated into the judgment of divorce. The PSA provided that defendant would pay plaintiff $24,000 per year, bi-monthly, in payments of $1,000 until plaintiff reached age sixty-five or remarried. The alimony article of the PSA contained the following provision:

4. Neither party shall make any application for support or maintenance otherwise inconsistent with the provisions of this Agreement.

Barely a year after the judgment was entered, defendant moved to substantially reduce his alimony obligation, claiming that his earning capacity had deteriorated. Prior to the divorce, defendant had been employed as a sales person in the garment industry earning in excess of $150,000 per year. He claimed that his sales position deteriorated and he attempted to start his own business. He ultimately elected to relocate to Vermont, where he was selling commercial air time for a local radio station, earning a net income of $397 per week. Defendant's 2001 application for reduction of alimony was denied. Nevertheless, he failed to comply with his alimony obligations and on March 5, 2004, an order was entered finding defendant in violation of litigant's rights and establishing alimony arrears at $11,200.

In the 2006 application, defendant represented that he was fifty-five years old and did not have the time to develop the skills, contacts and knowledge to generate an income of $150,000, albeit he has a B.A. degree in business administration and over twenty-five years of experience in sales. Defendant maintained that although he was earning approximately $26,000 per year, he was "virtually destitute" because of his alimony obligation. He further claimed that plaintiff is financially well off because she sold the marital home and received proceeds of $450,000, in addition to other assets valued at $60,000 received from equitable distribution. Defendant overlooks the fact that pursuant to the PSA he received assets in equitable distribution and the fact that plaintiff paid the mortgage and all carrying costs on the house, even after he defaulted on his alimony obligation.

The tax returns appended to defendant's motion indicate that in 2000, the year of the PSA, he earned $140,000 and plaintiff earned $11,691 in adjusted gross income. Defendant's 2002 individual tax return, however, showed an adjusted gross income of $28,536, taking into account a deduction of $24,000 for alimony paid. In 2003, he had an adjusted gross income of $44,805 after deducting $12,800 in alimony payments. In 2004, defendant had an adjusted gross income of $36,541, after deducting $26,400 in alimony. By August 2006, when defendant submitted his case information statement, he claimed an annual net income of $14,939.29.

At oral argument on the motion, defense counsel acknowledged that defendant was living with his girlfriend and claimed that she paid all of his expenses. The court found that defendant's application was not properly documented to establish changed circumstances and indicated that defendant could make another Lepis application with proper documentation showing his efforts to find reasonably paying jobs.

In this appeal, defendant argues that the trial court (1) abused its discretion in failing to find a prima facie case of changed circumstances; (2) failed to make sufficient findings of fact; and (3) abused its discretion in granting plaintiff counsel fees in the amount of $2,655.

At oral argument before us, defendant's counsel argued that defendant's tax returns and evidence of his depleted IRA are sufficient to establish a prima facie case of changed circumstances to require plaintiff to produce her financial information and warrant a plenary hearing on the modification of alimony. We disagree.

Although defendant claimed that he sought other jobs when his income declined, he did not present any evidence supporting his claim; that is, he did not provide copies of job applications, letters to or from potential employers or even a list of the jobs for which he applied, the salary level and qualifications required. From the record before us, it appears that defendant made ...

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