May 14, 2008
MICHAEL GEANEY, PLAINTIFF-APPELLANT,
LILLIAN GEANEY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-150-07-C; Mercer County, Docket No. FM-11-679-98-C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 21, 2008
Before Judges Lintner, Graves and Sabatino.
The parties were married in 1979 and divorced in 1999. They have two sons----one is now nineteen years old, and the other is now sixteen. Plaintiff Michael Geaney appeals from three orders: (1) an order dated July 18, 2006, denying his post-divorce motion to modify his alimony and child support obligations; (2) an order dated April 19, 2007, denying his motion for reconsideration and clarification of the order entered on July 18, 2006; and (3) an order dated May 7, 2007, requiring plaintiff to pay defendant Lillian Geaney alimony in the amount of $1000 per week and child support in the amount of $348 per week. We affirm in part, reverse in part, and remand for further proceedings.
On July 28, 1999, the parties signed a forty-page property settlement agreement (PSA), which was incorporated into their judgment of divorce (JOD). Under paragraphs six and seven of the PSA, plaintiff agreed to pay $575 per week in alimony and $266 per week in child support. Plaintiff also agreed to maintain his existing health insurance, or its equivalent, for the children until they became emancipated. The PSA specifically provided that plaintiff's alimony obligation was subject to "modification in the event of a change in circumstances . . . pursuant to Lepis v. Lepis, 83 N.J. 139 (1980) and the existing case law thereunder."
Pursuant to a consent order dated July 20, 2004, plaintiff's alimony payments increased from $575 per week to $1000 per week, and his child support payments for the two minor children of the marriage increased from $297*fn1 per week to $358 per week. As noted in the consent order, these amounts were based on "[p]laintiff's 2003 gross annual income of $167,000 and income being imputed to the [d]efendant of $9360 gross annually."
On January 6, 2006, plaintiff, along with approximately 500 others, was involuntarily terminated from his employment with McGraw-Hill Companies (McGraw). In a letter dated January 9, 2006, Maureen Marshall, Director of Corporate Human Resources, advised: "Michael Geaney has been terminated with severance from the McGraw-Hill Companies, effective January 6, 2006 due to reorganization." In a subsequent letter dated March 2, 2006, Sheila O'Neill, Vice President of Corporate Human Resources wrote: "This letter confirms that Michael Geaney's employment with The McGraw-Hill Companies was involuntarily terminated on January 6, 2006. This termination was due to reorganization. Consequently, there was not any alternative employment available at McGraw Hill for Mr. Geaney." Plaintiff received a severance check from McGraw for $12,625.87, as well as employment services to aid him in obtaining other employment.
Plaintiff possesses an Associates Degree in computer operations and general business from Mercer County Community College. At the time he was terminated, plaintiff had been working at McGraw for approximately seven years as "a manager in a technology department." According to his 2005 tax return, plaintiff's total income in 2005 was $206,955, which was mainly salary.
On January 27, 2006, plaintiff filed a "Notice of Motion for Modification of Child Support & Termination of Alimony Due to Substantial Changed Circumstances & Other Relief" in Mercer County. In support of his motion, plaintiff certified:
Since my termination, I have been actively seeking employment in my field--the technology field--and in other fields. I have forwarded my resume to several "head-hunters" to aid me in my employment search for a similar position, either full-time, part-time or on a contract basis. So far, I have submitted 15 applications in my field or related technology field[s] since my unemployment.
Plaintiff also submitted copies of his Hotjobs.com and Monster.com resume postings, as well as e-mails sent to various individuals inquiring about available positions.
On February 27, 2006, the trial court issued a tentative decision denying plaintiff's motion, stating, in pertinent part:
Since January 6, 2006, plaintiff's attempts to secure employment have been scarce. Although he forwards his resume to friends and former colleagues via e[-]mail, he does not submit proof of (1) daily search results from and interviews with recruiting companies; (2) free online search engine attempts; (3) registration with paid online search companies; (4) listing his resume with and applying to potential employers across the United States; or (5) applying for lower paying jobs or to blind advertisements. Moreover, he provides no information as to what, if any, severance benefits he received, other than one check appended to his reply certification.
Therefore, under the circumstances, plaintiff has not established a "changed circumstance" warranting modification of his support obligation.
Plaintiff did not accept the tentative decision, and, following oral argument on March 3, 2006, the court reserved decision. On March 16, 2006, the court issued an order directing plaintiff to file "a certification as to his fiancée's current financial situation with appropriate supporting documentation" as well as "a supplemental certification, with supporting documentation, demonstrating the disposition of the $50,000.00 profit he realized on the sale of the Asbury Park condo," which he sold on April 5, 2005. In a certification dated March 31, 2006, with accompanying documentation, plaintiff claimed "there was no profit from the sale of the property after I expended over $35,000 in repairs and upgrades and paid the mortgage, utilities, and property taxes." Plaintiff also refused to submit his fiancée's 2005 W-2's since he "was fully employed in 2005 and did not receive any contributions from [his] fiancée to cover [his] living expenses in 2005 or prior to that." On May 23, 2006, plaintiff certified he "made contact or corresponded with over 200 companies" in an effort to obtain employment, and he provided the court with a copy of his resume and copies of letters he purportedly mailed to potential employers.
On May 30, 2006, the court heard oral argument for the second time, and plaintiff argued as follows:
I've taken a part-time job on the weekends at a local golf course just trying to make ends meet . . . now I'm getting a reduced amount in unemployment, $100 less. . . .
And I'm doing the best I can, Your Honor. I'm doing the best I can. I'm giving 50 percent of my income, you know, and trying to support our boys, and I'm . . . below the federal poverty line level, Your Honor. . . .
. . . . . . . I have been looking for work since I've been laid off.
On July 18, 2006, the trial court entered an order denying plaintiff's request to reduce his support obligations. The order also transferred venue to Monmouth County.*fn2 The trial court's reasons for denying plaintiff's motion included the following:
[P]laintiff has not established that his present unemployment is not temporary, thereby warranting a change in circumstances. Plaintiff, after all, is forty-seven years old, twenty years less than that of typical retirement age. The [c]court has no reason to believe that plaintiff has given up on the possibility to continuing a professional career. Based upon plaintiff's failure to establish changed circumstances warranting modification of child support and/or alimony, the [c]court shall not attempt to further decipher the validity of the parties' financial situations. Plaintiff shall continue to be responsible for child support in the amount of $358.00 per week, as well as alimony in the amount of $1,000.00 per week, retroactive to the date he filed his initial motion on January 27, 2006.
On July 31, 2006, plaintiff filed a "Notice of Motion for Reconsideration & Clarification of the July 18, 2006 Order" in the Monmouth County Chancery Division, Family Part. Plaintiff cited as grounds for reconsideration (1) the court's decision was "based on plainly incorrect reasoning," (2) the court "failed to consider evidence," and (3) the court was biased in favor of defendant because defendant's counsel's law firm employed two attorneys who previously clerked for the motion judge.
In a reply certification dated October 26, 2006, defendant claimed plaintiff purposely quit "his job in an attempt to deny his responsibilities" to the family. Defendant also filed a cross-motion to (1) enforce the court's order dated July 18, 2006, with regard to child support and alimony; (2) to enforce the PSA to the extent it required plaintiff to pay sixty percent of the children's dental and orthodontic costs as well as the PSA's requirement that plaintiff maintain health insurance for the children; and (3) to award defendant counsel fees.
Oral argument was held in Monmouth County on February 2 and April 18, 2007, after which the court denied plaintiff's motion for reconsideration. In an oral decision on April 19, 2007, the court determined plaintiff failed to demonstrate that the decision to deny plaintiff's motion was "palpably incorrect or irrational, nor did [the prior motion judge] not consider or fail to appreciate the evidence that was before her. It was a well reasoned decision." The court also found plaintiff's "bona fides" were "seriously in question," given his failure to comply with the court order dated March 16, 2006, which required him to produce his former fiancée's 2005 Federal Tax Return and other financial information.
Additionally, on May 7, 2007, the court rendered an oral decision on the record granting defendant's cross-motion with respect to enforcement of provisions of the PSA and court ordered alimony and child support payments, but denied the motion as to counsel fees. This decision was memorialized in an order executed the same day. The order required plaintiff to pay alimony in the amount of $1000 per week and child support in the amount of $348 per week through the Monmouth County Probation Department, and it also provided for the issuance of an "ex parte bench warrant" if plaintiff missed one payment.
Plaintiff filed a notice of appeal on May 8, 2007, and an amended notice of appeal on May 15, 2007. Plaintiff also filed a motion with the trial court to vacate the order of May 7, 2007, and defendant filed an Order to Show Cause, which was converted into a motion to enforce the May 7, 2007 order. In an order dated May 25, 2007, the court denied plaintiff's motion to vacate the order of May 7, 2007, and it established alimony arrears in the amount of $62,767.74 and child support arrears in the amount of $22,518.94.
On August 13, 2007, plaintiff filed an emergent application with this court requesting a "stay/dismissal of enforcement proceedings; appointment of attorney; and [an] ability to pay hearing." On August 14, 2007, we granted plaintiff's emergent application and "summarily remanded to the Family Part to amplify the record" and to make findings regarding "(1) plaintiff's indigency and whether he is entitled to counsel pursuant to Pasqua v. Council, 186 N.J. 127 (2006); and (2) plaintiff's ability to pay the arrearages."
In accordance with our order dated August 14, 2007, the trial court held an ability to pay hearing on November 8, 2007. Plaintiff was represented by counsel, pro bono, and defendant appeared pro se. During the hearing plaintiff testified he applied for approximately three-hundred and fifty employment positions in the technology field between March 1, 2006, and October 18, 2007, but to no avail. While applying for those permanent positions, plaintiff claimed he obtained part-time employment at the Spring Lake Golf Club, with the United States Postal Service, bartending at a restaurant, working at Klein's Fish Market, as well as in the capacity as a handyman performing such tasks as painting and hanging doors. Plaintiff estimated his gross income for 2006 was $45,000, which included twenty-six weeks of unemployment benefits. A number of documents purportedly verifying these temporary jobs were admitted into evidence, but none are in the record on appeal, as plaintiff's brief and appendix were submitted months before the November 8, 2007, hearing. Plaintiff also testified that he had enrolled in a paralegal studies program at Farleigh Dickinson University.
During the ability to pay hearing, defendant testified: "I do believe Mr. Geaney quit [his job with McGraw] purposefully and willfully not to pay support . . . there was no attempt to secure funds or money or a job within days of leaving [his] position." She also found "it pretty remarkable" that plaintiff could only obtain minimum wage jobs. But during cross examination, defendant admitted plaintiff was "absolutely" a good provider during the parties' marriage, and, until January 2006, he was not behind on any of his support obligations.
In a written decision on November 27, 2007, the court found plaintiff "does not have the ability to meet the terms of the Consent Order of July 20, 2004 requiring weekly spousal support of $1000 and weekly child support of $358." But the court also found, "plaintiff does have the ability currently to pay ongoing weekly child support of $358 plus a small amount of $42 per week in alimony." Accordingly, the court "temporarily reduced" plaintiff's total support obligation for alimony and child support from $1358 per week to $400 per week. The court order filed on December 10, 2007, which memorializes the court's decision, "does not address the issue of the accrual of arrears."
The party seeking to modify an alimony or child support obligation "has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1986)). Every application to modify a support obligation "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell, supra, 21 N.J. at 355; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.").
A supporting spouse seeking a downward modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157; see also Miller v. Miller, 160 N.J. 408, 420 (1999) ("In an application brought by a supporting spouse for a downward modification . . . the central issue is the supporting spouse's ability to pay."). Furthermore, a party requesting modification of his or her support obligation due to loss of employment must demonstrate that the unemployment is not temporary. See, e.g., Lepis, supra, 83 N.J. at 151 ("Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.").
In the present matter, plaintiff contends his employment was involuntarily terminated on January 6, 2006, and he has documented his efforts to find comparable employment. Moreover, following an ability to pay hearing on November 8, 2007, the court concluded plaintiff "does not have the ability to . . . [pay] weekly spousal support of $1000 and weekly child support of $358." Additionally, it is undisputed that plaintiff satisfied his support obligations for several years prior to January 2006. In light of these circumstances, we are satisfied the plaintiff's submissions in support of his motion for reconsideration and clarification established a prima facie case of changed circumstances.
We also conclude from defendant's competing testimony during the ability to pay hearing and her certifications in opposition to plaintiff's modification motion that a plenary hearing should be held to determine whether a change in plaintiff's financial circumstances warrants a reduction in his alimony and child support payments. If plaintiff is entitled to a modification, the court must determine whether the reduction should be retroactive to some earlier date.
We affirm the order of July 18, 2006, because plaintiff's modification motion, filed on January 27, 2006, was premature. However, the subsequent orders entered on April 19, 2007, and May 7, 2007, are vacated without prejudice pending such discovery as the trial court may deem appropriate and an expeditious plenary hearing. Lastly, we emphasize we have neither expressed nor intimated an opinion as to the ultimate merits of plaintiff's motion to reduce his support obligations.
The remaining arguments advanced by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Thus, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.