June 26, 2008
JACQUELINE P. WOODLAND, PLAINTIFF-RESPONDENT,
HAROLD WOODLAND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-365-01S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 10, 2008
Before Judges Stern and Coburn.
Defendant, former husband, appeals from an order of July 27, 2007, which denied his motion for reconsideration, of an order of May 4, 2007, which had enforced his alimony obligation. He sought a reduction on the basis of changed circumstances. The Property Settlement Agreement (PSA) provided for permanent alimony of $300 a week. Defendant argues that "the trial court erred when it treated defendant's motion for reconsideration as a Rule 4:50-1 motion instead of a Rule 4:49-2 motion," "the trial court abused its discretion in failing to enforce the Lepis*fn1 provision of the [PSA]," and "the trial court erred in not finding defendant had a substantial change in circumstances justifying the exchange of discovery and a plenary hearing."
While this is technically only an appeal from the denial of reconsideration of the order of May 4, 2007,*fn2 we need not belabor the differences in the scope of a Rule 4:50 motion and a motion under Rule 4:49-2 (and Rule 5:1-1) for reconsideration. The fact is that defendant filed no written opposition to the plaintiff's enforcement motion which had been filed on March 7, 2007, and resulted in the May order. We simply note our agreement with the motion judge at the July 27, 2007, argument that defendant cannot benefit or obtain a de novo review of a prior application by waiting for the disposition of a motion before retaining counsel.
In any event, even considering the matter as if defendant had timely filed a response to the motion before the return date in May, we disagree with defendant's principal contention that his retirement provided a prima facie showing of changed circumstances under the PSA entitling him to discovery and an evidentiary hearing. The final paragraph of Article 3.1 of the PSA provides:
The parties agree that the Husband's reasonable retirement shall be deemed to have satisfied the criteria of Lepis Stage 1 as prima facie changed circumstances for either party to request discovery and review the other's financial circumstances at that time. Based upon that review, either party is without prejudice to request either an upward or downward modification of alimony. However, this shall not be deemed as an agreement that either party is entitled to an automatic modification.
However, there is no dispute that, (while represented by prior counsel) at the October 25, 2001 colloquy resulting in the court's finding "that each of the parties has entered into [the PSA] knowing full well the contents thereof on a voluntary basis," the following was asked of defendant by his then attorney:
Q: Do you recognize that by entering into this agreement you, in fact, are waiving your right to a trial?
Q: And you also recognize that your wife is entitled to permanent alimony in this agreement?
Q: And you are, in fact, waiving any right to alimony?
Q: And you recognize that there is a Lepis contingency that upon your retirement from new employment that you can make application for a reduction in the amount of alimony?
There is no dispute that "the defendant's decision to accept the early retirement pre-dated the Property Settlement Agreement and . . . Judgment of Divorce" and that the early retirement from Avaya predated the PSA, as certified by plaintiff in her attachment to the cross-motion filed on July 12, 2007. Accordingly, the retirement from Avaya in 2001 could not trigger the "changed circumstances" provision of the PSA.
Similarly, the decision to leave Edgenics and start his own business cannot be deemed a "retirement" or "reasonable retirement." In paragraph 6 of his certification of May 22, 2007, in support of the motion for reconsideration, defendant certified:
I needed a job paying at least Fifty Thousand Dollars ($50,000.00) in order to pay bills and alimony. I also inquired about jobs at Target and Wal-Mart but was told that I was over qualified. Pressured by the need to pay bills and alimony[,] I investigated employment with Edgenics, a start up company. In May 2002 I took a job with them. Edgenics was a "distance learning" startup trying to secure an Eleven Million Dollar ($11,000,000.00) loan and grant package from the USDA to train student soldiers. My position at Edgenics was VP of technology development and my compensation was to be a base salary of One Hundred and Twenty Thousand Dollars ($120,000.00) per year with stock options. My agreement with Edgenics was to work and receive accrued compensation contingent on the loan and grant package approval by the USDA. In December 2002, the Eleven Million Dollar ($11,000,000.00) loan and grant package was approved contingent on Edgenics raising Four Million Dollars ($4,000,000.00) in matching funds from other investors. Between December 2002 and November 2003 I worked forty to eighty hours per week developing a distance learning platform that would support student soldiers worldwide.
As of November 2003 Edgenics was unable to secure the Four Million Dollar ($4,000,000.00) matching funds. I felt I had to leave and seek other employment.
There is no dispute that Edgenics remained in business at the time of the July 2007 proceedings.
We find an insufficient basis for a showing of changed circumstances within the meaning of the PSA or otherwise. We see no involuntary termination of employment since defendant left Avaya and Edgenics, nor a significant job search or long- term effort to find secure work other than to work for himself.
Stated differently, we have no basis in the record to disturb the findings embodied in paragraph 2 of the order of July 27, 2007, and the additional provisions which flow therefrom.
Affirmed. As on the July application, no counsel fees shall be awarded on the appeal.