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Kisberg v. Kisberg

March 2, 2010

BONNI KISBERG, PLAINTIFF-RESPONDENT,
v.
FRANKLIN KISBERG, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1787-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically October 26, 2009

Before Judges Carchman, Lihotz and Ashrafi.

Defendant Franklin Kisberg appeals from a post-judgment order denying his motion to modify the amount of spousal support he must pay plaintiff Bonni Kisberg. In 2005, the parties entered a consent order, which reduced spousal and child support based upon defendant's financial circumstances. Defendant moved for further reductions when he began repayment of past-due income taxes. Defendant asserts the trial court erred in concluding this was not a change of circumstances. Following our review of the record and the arguments of counsel, we affirm.

After sixteen years of marriage, plaintiff filed a complaint for divorce. On September 15, 1998, the parties negotiated the terms of a property settlement agreement (PSA), resolving the issues of property distribution, alimony, child custody and support. Pursuant to the terms of the PSA, defendant agreed to pay $1350 per week in spousal support and $432 per week to support the parties' two children. That day, the PSA was incorporated into the terms of a Final Judgment of Divorce (FJOD).*fn1

In late 2001, defendant was unable to pay as agreed. He filed a motion seeking modification. The court ordered a plenary hearing to review whether defendant's circumstances had changed sufficiently to warrant a downward modification of his support obligations. Sometime during this period, defendant filed a voluntary petition pursuant to Chapter 7 of the Bankruptcy Code, and a discharge was entered on November 23, 2003.

Following a hearing on January 12, 2004, the court entered an order reducing defendant's weekly support obligation to $1050 and issued a schedule for satisfaction of the accumulated arrearages.*fn2 Plaintiff filed multiple enforcement requests, including motions requesting defendant's incarceration for non-payment. On October 4, 2004, the parties again redefined defendant's support obligations. The agreement stated defendant would pay $550 per week, allocated $200 for child support and $350 for alimony, until June 1, 2005. After that date, support was to "return to the level determined by the [c]court's previous order of January 12, 2004."

In 2005, defendant again moved to reduce support. The parties resolved the matter without benefit of a hearing by entering into a consent order on November 7, 2005. That order provided defendant would pay an aggregate sum of $1192 on the first and fifteenth day of each month, allocated $400 in child support and $792 in alimony. Further, the parties agreed that beginning on June 1, 2006, the alimony component would be increased by $200 each quarter until it reached $1750. Additionally, the order detailed defendant's obligations to fund a portion of the children's college education costs, satisfy the accumulated arrearages, and pay plaintiff's attorney's fees.

Defendant repeatedly failed to pay the sums due. Consequently, plaintiff moved for enforcement of litigant's rights, and her request was granted. The resulting November 16, 2007 order required defendant to satisfy $4300 in outstanding arrearages and provide financial disclosure of his business, Den Ventures, LLC.

In a December 19, 2007 letter, counsel revealed defendant had failed to pay his federal income taxes since 2001, creating a $90,000 indebtedness to the Internal Revenue Service (IRS). The letter stated defendant had agreed to repay his tax obligation at a rate of $1800 per month and to remain current on his estimated quarterly tax payments of $3500.

In January 2008, defendant's nonpayment of support prompted plaintiff to again move to enforce litigant's rights.*fn3

Attributing his inability to pay the ordered support to the necessity of complying with the IRS agreement, defendant filed a cross-motion to reduce his support obligations.

Defendant suggested his now $100,000 federal income tax debt was incurred when he "failed to pay his taxes... because [he] used the money for [p]laintiff's support." Defendant also argued it was impossible to meet his income tax debt and pay support as ordered from his $120,000 annual earnings. He asserted the "massive IRS debt constituted a prima facie change in circumstances warranting" a plenary hearing to review whether a further support reduction should be ordered.

Defendant's certification did not discuss his current employment and, except to generalize that he was "strapped financially" and his "financial situation has taken a turn for the worse," defendant did not elaborate on his current business enterprise or elucidate any limitations on his earning abilities. He attached only a partially completed case information statement and uncertified business ...


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