On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-127-93.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Carchman, Parrillo and Ashrafi.
Defendant Arthur Weitz appeals from orders of the Family Part denying his post-judgment motions to terminate payment of alimony and for reconsideration. We affirm.
Arthur and Susan Weitz were married in 1966 and divorced in 1994. The Final Judgment of Divorce incorporated a Property Settlement Agreement that the parties negotiated through their attorneys and executed on June 13, 1994. Relevant to this appeal, the Agreement required that Arthur pay Susan*fn1 alimony from September 1994 through August 2006 in fixed amounts increasing over the years from $500 per month to $650 per month. Arthur had no obligation to pay alimony after August 31, 2006.
The Agreement also provided that alimony would terminate earlier upon the death of either spouse, Susan's remarriage, or Susan's "cohabitation in a relationship tantamount to marriage." In addition, the Agreement provided: "If the Husband is unemployed and receiving no monies for one continuous month, then he will be relieved of his obligation to pay spousal support during that month." In the event of Arthur's failure to pay because of unemployment, his alimony obligation would be extended by the number of months and in the amounts of missed payments.
In February 2008, Arthur filed a motion to terminate his obligation to pay alimony, to stay pending arrest warrants for failure to make payments, and for other relief. By order dated June 20, 2008, Judge Robert J. Brennan denied Arthur's motion to terminate his payments but granted a stay of the arrest warrants until a hearing could be held to determine Arthur's ability to pay. On September 9, 2008, Judge Brennan held the hearing, determined that Arthur had the ability to pay alimony arrears, and ordered that he be incarcerated until he began making payments. Because Arthur immediately took ill with high blood pressure, the judge vacated the order of incarceration and released Arthur on his own recognizance. Arthur then moved for reconsideration of the judge's rulings, which was denied by order of November 5, 2008.
On appeal, Arthur argues that Judge Brennan erred in failing to hold a full evidentiary hearing in which he could show that Susan was cohabiting with a man in a relationship tantamount to marriage, thus terminating his obligation to pay alimony. Arthur intended to subpoena neighbors and the other man and to offer documentary evidence to prove Susan's cohabitation. In opposing Arthur's motion, Susan admitted that she was then living with a man but stated that the cohabitation began in 2007, after the August 2006 termination of Arthur's alimony obligation. Judge Brennan ruled that Susan's cohabitation was irrelevant and not a ground for termination of Arthur's payments because Arthur had no ongoing obligation to pay alimony. In 2008, his only obligation was to pay more than $15,000 in arrears that had accumulated over the years before Susan's cohabitation.
Arthur argues that the amounts he allegedly owed should not be considered arrears because he was unemployed for many months from 1994 until August 2006, and he had no obligation to pay during his months of unemployment. He contends that the duration of alimony has been extended by the terms of the parties' Agreement and Susan's current cohabitation absolves him of any further obligation to pay.
In his appendix for this appeal, Arthur has not included a documented history of his post-judgment motions to terminate alimony and the Family Part's rulings on those motions. See R. 2:6-1(a)(1)(I) (appellant's appendix shall contain "such other parts of the record, excluding the stenographic transcript, as are essential to the proper consideration of the issues"); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002).
The record before us does include a partial transcript of rulings by Judge Brennan on January 26, 2007, pertaining to earlier cross-motions by Susan and Arthur. In his oral statement of reasons for granting Susan's motion to enforce and denying Arthur's motion to terminate alimony payments, Judge Brennan stated in 2007 that twenty-two prior post-judgment orders had been entered to enforce Arthur's obligation to pay alimony, beginning in 1995 and occurring at the rate of two per year to the present time. Also, Arthur has been repeatedly incarcerated for failure to pay. Judge Brennan also stated that Arthur is "determined not to pay" and that he is "a committed unemployed or underemployed person." In his statement of reasons on October 31, 2008, for denying Arthur's motion for reconsideration, Judge Brennan again described Arthur as "chronically and purposely underemployed." It appears, therefore, that Arthur has repeatedly been heard by the Family Part on his claims of unemployment, and those claims have not been accepted as a basis to relieve him of his obligation to pay alimony. See Donnelly v. Donnelly, 405 N.J. Super. 117, 131 n.5 (App. Div. 2009); Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991).
Based on the record that is available to us, we conclude that the Family Part had substantial evidence to support its finding that Arthur's obligation to pay ongoing alimony ended in August 2006 and that current payments due were for arrears only. Therefore, Susan's cohabitation beginning in 2007 was irrelevant to Arthur's arrears payments still due.
Arthur also argues that Judge Zucker-Zarett found in December 2003 that he had shown a prima facie case of changed circumstances based on Susan's alleged cohabitation and that he was entitled to a hearing on that issue. However, as Judge Brennan stated in 2007, Judge Zucker-Zarett ...