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Silver v. Silver

January 13, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-398-06.

Per curiam.


Submitted December 9, 2008

Before Judges Parker and Yannotti.

Plaintiff Erik Silver appeals from orders entered by the Family Part on October 31, 2007, which denied his motion to modify his alimony and child support obligations under the parties' property settlement agreement (PSA), and required plaintiff to pay all outstanding alimony arrearages within thirty days. Plaintiff also appeals from an order entered on February 13, 2008, which provided, among other things, that plaintiff's alimony and child support obligations under the PSA would remain in effect until December 2, 2007, but temporarily modified those obligations effective on December 3, 2007. For the reasons stated herein, we affirm in part and reverse in part.

The following facts are relevant to this appeal. The parties were married on June 25, 1994, and two children were born of the marriage. The marriage was dissolved by a dual final judgment of divorce dated November 8, 2006, which incorporated the parties' PSA dated November 6, 2006.

The PSA provided that plaintiff would pay defendant limited duration alimony for ten years, commencing on November 1, 2006, in the amount of $175,000 per year, to be paid at a monthly rate of $14,583. Plaintiff was also required to maintain health insurance coverage for defendant for a period of three years.

According to the PSA, plaintiff made an advance payment of alimony to defendant in the amount of $75,000. The agreement provided that defendant would repay the advance at a rate of $1,250 per month for sixty months, and plaintiff was permitted to deduct the repayments from his monthly alimony payments.

Thus, under the terms of the PSA, plaintiff's monthly spousal support obligation was $14,583, less the $1,250 repayment for the advance and $149.64, which was defendant's share of the health insurance payment, for a total of $13,183.36.

The PSA further provided that plaintiff would pay child support in the amount of $4,167 per month. Therefore, plaintiff's total monthly obligation for spousal and child support under the PSA totaled $17,350.36. Paragraph 9 of the PSA stated:

The parties acknowledge that the Alimony and Child Support that the Husband has agreed to pay hereunder is based upon the Husband's average gross yearly earnings for the period of 2004 through 2006 of $550,000 with C-Bass and his 2006 earnings of approximately $980,000. Any loss of employment by the Husband or reduction in income will entitle the Husband to seek a modification of his Alimony and Child Support obligation[s].

In May 2007, plaintiff's attorney informed defendant that, because plaintiff was experiencing financial difficulties, he would only be paying $6,000 per month for June and July 2007 but would make up the difference late in July after receiving a bonus. On July 31, 2007, plaintiff's attorney advised defendant that plaintiff's employer was considering filing for bankruptcy and, if this occurred, plaintiff may no longer be able to meet his alimony obligations to defendant.

In August 2007, defendant filed a motion in aid of litigant's rights. In her motion, defendant sought, among other things, an order requiring: plaintiff to pay all of the arrearages within thirty days; garnishment of plaintiff's wages for the child support and alimony payments; that plaintiff post a bond in the amount of not less than $1 million to ensure payment of his financial obligations; and an increase in plaintiff's child support obligation. Plaintiff's alimony arrearages for June, July, and August 2007 were $39,550.08. Plaintiff opposed the motion and filed a cross-motion seeking a reduction of his alimony obligations.

On October 31, 2007, the court granted defendant's motion in part and denied plaintiff's motion in its entirety. The court filed a statement setting forth the reasons for its determinations.

The court noted that, under Lepis v. Lepis, 83 N.J. 139, 147 (1980), the party seeking a change in the party's alimony or child support obligations has the burden of showing changed circumstances. The court observed that defendant had not provided evidence indicating that the cost of supporting the children had increased. Therefore, the court found that ...

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