January 23, 2009
JOHN R. ROBERTS, PLAINTIFF-APPELLANT,
MARIA M. ROBERTS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1477-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 2, 2008
Before Judges Skillman and Grall.
This is plaintiff John R. Roberts's appeal from an order entered on his cross-motion to modify and Maria M. Roberts's motion to enforce a final judgment of divorce. The order requires plaintiff to pay amounts he owes defendant for equitable distribution and support.*fn1 Because the trial court's factual findings are supported by the record and the rulings are consistent with controlling legal principles, we affirm.
The parties married on April 23, 1995. They have two children, one born in May 1996 and the other in August 2002. The parties were divorced on September 5, 2006, and the judgment incorporates a property settlement agreement (PSA) the parties signed on May 31, 2006.
During the marriage, plaintiff was employed as a carpenter and defendant was not employed. The alimony amount set in the PSA "is based on an earned income of the [plaintiff] from all sources in the amount of $80,000 per year."
The PSA provides for payment of support in two different amounts, one applicable before and one after the sale of the marital residence. Prior to the sale, plaintiff's obligation for child support and alimony was combined, $315 per week in cash support plus "household expenses, automobile expenses, insurance expenses and other expenses as set forth in Schedules A, B & C of [his wife's] Case Information Statement." Following the sale, plaintiff was to pay $500 alimony per week for 260 weeks and $216 child support per week, a total of $716 per week.
At the time of the divorce, the parties owned a residence in Mahwah with equity of approximately $279,000 and a two-family rental property in Ridgefield with equity of approximately $260,000. In addition, they had various bank accounts and retirement assets that are not at issue on this appeal. The PSA provides for defendant to receive the following as her share of the marital estate: $50,000 "within five days of executing" the PSA; one-half of the proceeds from the sale of the marital residence; and $78,000 for defendant's interest in the Ridgefield rental property payable within thirty days of the sale of the marital residence.
Plaintiff paid defendant $50,000 after the PSA was signed, but payment due defendant for her interest in the rental property and marital residence was complicated by delay in the sale of the marital residence. Although the PSA provided for the parties to market the residence on their own until June 30, 2006 and thereafter list it with a real estate broker, plaintiff opted to continue his efforts to sell the property himself.
Defendant and the children lived in the home until September 2006, when, by agreement memorialized in the PSA, they moved to Pennsylvania. After they left, plaintiff returned to the residence.
Plaintiff decided to refinance the mortgage on the residence and purchase defendant's interest in that property. On March 7, 2007, plaintiff paid defendant $125,000 for her interest. He determined that defendant was entitled to one-half the equity, $139,500, minus hypothetical transactional costs in the amount of $14,500. Although plaintiff also kept the rental property, he did not pay defendant $78,000 as required by the PSA.
After defendant moved to Pennsylvania and prior to plaintiff's March 7, 2007 "purchase" of defendant's interest in the marital residence, plaintiff continued to pay cash support in the amount of $315 per week but ceased payment of living expenses. During the twenty-seven-week period beginning September 1, 2006 and ending March 7, 2007, plaintiff deposited twenty-one $315 payments in defendant's account. During that same period, defendant paid $13,751.35 for car insurance, wastewater, water, phone service, television service and mortgage; each payment was documented. On March 8, 2007, plaintiff made his first payment of $500 weekly term alimony and $216 weekly child support.
Plaintiff's earnings have not fallen below the $80,000 level identified in the PSA. He acknowledged earning approximately $80,000, and his W-2 forms for 2007 reflect earnings of $88,074.04. He claims, however, that he had earned much more during the marriage when his children were nearby and he could work on the weekends.*fn2
Defendant has earned income she did not have at the time of the divorce. Since moving to Pennsylvania, defendant has worked part-time in a restaurant owned by a member of her family. Her pay stubs show wages of $12.00 per hour and gross income of approximately $250 per week. Although plaintiff asserted that defendant was working full-time and earning more, he submitted no competent evidence to support that claim, and defendant reported wages in the amount of $9324 on her 2007 tax return.
On defendant's motion, the trial court determined that plaintiff owed defendant $92,500 for her interest in the rental property and marital residence ($78,000 for her interest in the rental property plus $14,500 for the marital residence).*fn3
Relying on Wadlow v. Wadlow, 200 N.J. Super. 372, 383 (App. Div. 1985), the court disallowed plaintiff's deduction of hypothetical transactional costs. Based on the unambiguous provisions of the PSA, the court rejected plaintiff's claim that the $50,000 due after the PSA was signed was intended as an advance on the payment due to defendant for interest in the rental property.
The court further concluded that plaintiff owed defendant support for the period beginning on September 1, 2006 and ending on March 7, 2007. The court found that defendant's bank statements established cash payments in an amount $1893 less than the amount due during that period and that her documents demonstrated she paid $13,751.35 for living expenses plaintiff was obligated to pay until the marital residence was sold.
The court rejected plaintiff's argument that the PSA did not require him to pay living expenses after defendant and the children moved to Pennsylvania. Although the PSA includes a reference to defendant's plan to move, it does not condition payment of living expenses upon defendant's occupancy of the marital residence, and nothing in the PSA would permit a court to conclude that the parties intended plaintiff to pay only $315 weekly support for his former wife and children after they moved. The parties agreed that $716 per week, $500 weekly alimony and $216 weekly child support was appropriate.
In denying plaintiff's application for modification of support based on changed circumstances, the trial court concluded that he failed to establish a prima facie case of a substantial change in circumstances. Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). The court found that the plaintiff's earnings had not decreased to the point that he was unable to pay support at the level set in the PSA and that defendant's income from part-time employment was insufficient to have a substantial impact on her need for alimony. Ibid.
On appeal plaintiff argues:
I. THE COURT ABUSED ITS DISCRETION WHEN IT FAILED TO RECOGNIZE MATERIAL MISREPRESENTATIONS MADE BY DEFENDANT.
II. PLAINTIFF IS ENTITLED TO A MODIFICATION OF THE PROPERTY SETTLEMENT AGREEMENT BASED UPON A CHANGE IN CIRCUMSTANCES.
After review of the record, we are convinced that the arguments presented lack sufficient merit to warrant discussion beyond the brief explanations that follow. R. 2:11-3(e)(1)(E).
Plaintiff makes two claims about misrepresentation. One is based on defendant's failure to account for the equitable distribution she received when she listed her assets on the case information statement filed with the trial court. Her current assets were not material; defendant's equitable share of the marital estate was specified in the PSA and the support provided in the PSA was set with the understanding that she would have those funds. See Lepis, supra, 83 N.J. at 153. The second claim is based on inconsistencies in defendant's reporting of her living expenses. While differences between expenses at the time of these post-judgment applications and expenses claimed between September 1, 2006 and March 7, 2007 are difficult to understand, the trial court did not rely on the case information statement. The court required plaintiff to reimburse defendant for living expenses she proved that she had paid.
The arguments plaintiff offers to establish error in the court's denial of a modification in support are based on facts not supported by the record. For that reason, we reject the claims.
We note that plaintiff's brief includes argument on his objections to the form of qualified domestic relations orders defendant prepared for his signature, but the trial court denied defendant's motion to compel plaintiff to execute those documents. Accordingly, those claims are not before us on this appeal.