July 10, 2008
JEWEL SCHUPAK, PLAINTIFF-RESPONDENT,
LEONARD SCHUPAK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-18679-76.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Cuff and Simonelli.
Defendant Leonard Schupak appeals from the denial of his post-judgment motion to terminate his alimony obligation. Defendant contends that he made a prima facie showing of changed circumstances to warrant termination of alimony; that the judge erred by not establishing a marital lifestyle; and that the judge based a previous decision to reduce the monthly alimony from $1400 to $900, instead of $400, on a mistaken belief that defendant had an additional $2 million in income. We reject these contentions and affirm.
The parties married on August 2, 1962. Two children were born of the marriage, in 1970 and 1971. A Judgment of Divorce was entered on January 4, 1979, requiring defendant to pay unallocated support of $1400 per month for plaintiff and the two children.
Defendant was a successful securities trader, at times earning $500,000 a year. In 2002, defendant left his job at Merrill Lynch, receiving a total severance package of over $1.3 million. In October 2002, defendant relocated to Costa Rica, and reduced his monthly support payment to $400 without the court's permission.
Defendant eventually filed a cross-motion to reduce his monthly support to $400 due to changed circumstances based upon a decrease in his income and assets.*fn1 Defendant's 2003 Case Information Statement (CIS) revealed $633,168 in assets,*fn2 a gross income of $142,332 for 2002, $1525 per month for Social Security, and $4308 for monthly shelter, transportation and personal expenses. Judge Troiano entered an order on November 15, 2004, requiring defendant to pay plaintiff permanent alimony of $900 per month, effective November 17, 2003.
Defendant filed a motion for reconsideration, arguing that in reaching the $900 amount, the judge erred in considering approximately $2 million in short-term gain reflected on defendant's tax return. Although, Judge Troiano found that defendant had access to this money, he concluded "that nevertheless with the other additional assets that [defendant] has, as well as his ability to continue to earn a living, he clearly is in a position to continue to pay [plaintiff] the court-ordered reduced amount of alimony in the amount of $900." Judge Troiano entered an order on January 19, 2005, denying defendant's motion for reconsideration. Defendant did not appeal.
In 2005, defendant obtained a real estate license in Florida, and was employed as a part-time real estate agent. Defendant also invested in commercial mortgages with The Berman Group, from which he received interest income.
On or about April 18, 2007, defendant filed a motion to terminate alimony due to a change in circumstances based upon a decrease in his income and assets, and upon an increase in plaintiff's assets.*fn3 Defendant claimed that he was not receiving his full interest payments from The Berman Group, and he anticipated that his income would diminish due to that situation.
Defendant's 2007 CIS as of April 2007 revealed assets of $468,000,*fn4 and gross income of $21,265, including $9000 in real estate commissions, and $6554 in interest income. Also, defendant remarried and lives in his new wife's condominium. His 2007 CIS revealed monthly shelter expenses of $208 for real estate taxes, $100 for insurance, $500 for maintenance fees, $50 for the telephone, $100 for a cell phone, and $24 for internet charges; monthly transportation expenses of $492 for his 2005 Lexus, $130 for car insurance,*fn5 $10 for registration and license, $50 for maintenance, and $250 for fuel and oil; and monthly personal expenses of $3789, which includes $300 for food at home and household supplies, $600 for restaurants, $150 for domestic help, $200 for sports and hobbies, $500 for vacations, $200 for entertainment, $100 for contributions, and $800 for tax reserve. Defendant's total monthly expenses are $5703.*fn6
Judge Troiano denied defendant's motion, finding that defendant had not shown changed circumstances as required by Lepis v. Lepis, 83 N.J. 139 (1980). The judge specifically rejected plaintiff's belief that defendant "has [$2 million] hidden away someplace[.]" he focused on whether there was a significant reduction in defendant's income since 2004, when the judge reduced defendant's monthly support payment to $900, and he concluded as follows:
The argument can be made clearly here that at best what we have here is we have a temporary situation, and perhaps even a premature motion. And I hate to open those kind of doors, but we have a premature --could have a premature motion filed by [defendant] asking for the Court to terminate alimony, when in reality the situation with regard to [the mortgage investment], the situation with regard to the [real estate] commissions is something that is much too early for this Court to be able to determine whether or not there is clearly an income, a significant permanent income loss or a lack of ability to earn a living in those commissions.
There is not, in my mind, a significant loss of income in the past couple of years by this gentleman. Last year was an off year, there's no question about it, and I am sure he had to dip into his principal in order to make his payments of $900 a month to [plaintiff].
But this year he seems to have made a rebound. He does seem to be doing reasonably well. I see no reason at this point to find a -- a significant reason to find that this man has sustained his burden of proof pursuant to Lepis that he should be entitled to a termination of his alimony benefits.
Our review of a trial judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "'not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Id. at 433 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). With these standards in mind, we discern no reason to disturb Judge Troiano's ruling.
A party seeking modification of alimony bears the burden of making a prima facie showing of changed circumstances. Lepis, supra, 83 N.J. at 157. "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Ibid. "Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)).
Here, unlike Judge Troiano, we do not conclude that defendant's circumstances are temporary. Rather, we conclude that defendant failed to make a prima facie showing that changed circumstances have substantially impaired his ability to support himself. Defendant earned $21,265 in the first three months of 2007, and has the ability to continue earning income either as a real estate agent or stock trader. His self-serving claims that he was not receiving his full interest payments from The Berman Group, and that he anticipates that his income would diminish due to that situation is not supported by any competent evidence. Even if competent evidence existed, we would agree with the judge that defendant's situation is temporary, and that his motion to terminate alimony is premature.
Defendant's contention that Judge Troiano based a previous decision to reduce the monthly alimony to $900 instead of $400 on a mistaken belief that defendant had an additional $2 million in income is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following comments.
Defendant did not appeal from the January 19, 2005 order denying his motion for reconsideration of the November 15, 2004 order reducing the monthly support payment to $900 instead of $400; and Judge Troiano's decision was not grounded on whether defendant had the $2 million.