On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, Docket No. FM-13-311-93A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 15, 2007
Before Judges Axelrad and Messano.
Defendant Eugene Caufield appeals from the Family Part's December 14, 2006 order denying his motion to reduce or terminate his permanent alimony and insurance obligations to his former wife. Defendant contends the judge erred in: (1) denying his request for oral argument on the motion; (2) not finding substantial changed circumstances warranting the relief; and (3) at a minimum, not finding he established a sufficient prima facie case to entitle him to a plenary hearing. We affirm substantially for the reasons articulated by Judge Guadagno.
The parties were divorced in November 1993 after twenty-five years of marriage. The parties, both represented by counsel, entered into a consent judgment for divorce, providing for defendant to pay permanent alimony of $1,500 per month, along with health and life insurance. Forty-five-year-old defendant was a self-employed general contractor; plaintiff was a homemaker. Beginning in September 2002, plaintiff began successfully obtaining enforcement of litigant's rights relief against defendant.
In December 2003, defendant filed a similar motion to the present one, seeking to terminate or reduce his alimony and insurance obligations, claiming a significant reduction in income caused by medical problems. The motion was denied. In April 2006, defendant filed a similar motion, purportedly pro se, again arguing his income had declined substantially since the entry of the divorce judgment due to a deteriorating medical condition. Defendant provided no financial information as required by Rule 5:5-2(a) and 5:5-4(a). When the court informed him of this deficiency, he only provided a current CIS and 2004 tax return. Defendant also claimed to have suffered a stroke on November 7, 2003, and provided a November 13, 2003 report indicating an MRI revealing that he displayed an "abnormal signal in the left thalamus" which "could represent a small infarct," a November 13, 2003 report involving a carotid Doppler examination appearing to give him a clean bill of health regarding his internal carotid and vertebral arteries, and a December 8, 2003 report indicating an MRI revealing degenerative and herniated disc problems in his back. Defendant presented no medical certification that any of these conditions impaired his ability to work.
The court noted that these medical conditions and reports preceded defendant's initial December 2003 motion to terminate permanent alimony, as well as an October 2005 enforcement proceeding in which an order was entered adding $100 per month as alimony arrears, neither of which was appealed. The court found there was no evidence of any change in circumstances since then; thus defendant had failed to make a prima facie showing of changed circumstances entitling him to the relief sought. By order of May 5, 2006, the court denied defendant's motion for termination or modification of alimony and granted plaintiff's cross-motion to compel payment of arrears and for counsel fees. Defendant filed neither a motion for reconsideration nor appeal of that order.
Instead, defendant filed the identical motion in November 2006, now represented by present counsel. Defendant acknowledged he was seeking the same relief denied by the court in May 2006, and was not arguing that circumstances had changed since the May denial; rather, he was making the same arguments the court had previously rejected, i.e., that there were changed circumstances since the entry of the 1993 judgment of divorce. Defendant resubmitted the 2003 medical reports to support his claim of a deteriorated health condition. He also supplied his 2004 and 2005 tax returns in support of his reduction in income claim, which on their face indicated a significant increase in reported gross business receipts. Defendant argued that additional factors evidencing changed circumstances included:
(1) the intervening thirteen years from the divorce judgment resulting in an increased age (fifty-eight) that placed him in a position to seek semi- or permanent retirement status; (2) plaintiff's change in earning capacity, as she was not working at the time of the judgment and apparently had a current business cleaning houses; and (3) plaintiff's long-term friendship, with a man with whom she did not cohabit, but nonetheless, should factor into the court's consideration.
Judge Guadagno denied defendant's motion on procedural, as well as substantive grounds, in an oral decision placed on the record on December 14, 2006, and an amplified written opinion of March 12, 2007 submitted pursuant to Rule 2:5-1(b), setting forth in detail his rulings and explanation of the reasons.
On appeal, defendant again renews the arguments made to the trial court, asserting the four changed circumstances warranting modification of his alimony obligation are: (1) his increased age; (2) the deterioration of his health beginning in 2003; (3) his severe reduction in income; and (4) plaintiff's change in earning capacity. Defendant seems unconcerned by his failure to appeal the December 2003 and May 2006 denial of his motions to terminate or reduce the amount of his alimony and life insurance obligations based on almost identical proofs and arguments reasserted in this motion. We are not. Defendant's failure to appeal the prior rulings is fatal. He cannot continue to reassert the same proofs in a succession of motions over the years. Defendant can move on a claim of changed circumstances, with credible and concrete proofs as required under the case law, only with respect to factors arising after the filing of his 2006 motion.