April 21, 2010
LAWRENCE P. TIGER, PLAINTIFF-APPELLANT,
MICHELE TIGER, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1689-05E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2010
Before Judges Axelrad and Sapp-Peterson.
Plaintiff, Lawrence Tiger, appeals from the January 9, 2009 Family Part order granting defendant Michele Tiger's post-judgment motion to enforce litigant's rights and denying plaintiff's cross-motion for a plenary hearing on his ability to pay alimony and the balance of his equitable distribution obligations. We affirm.
Plaintiff and defendant dissolved their marriage of thirty-five years on October 13, 2005. They entered into a Matrimonial Settlement Agreement (Agreement) that was incorporated into the Amended Dual Judgment of Divorce. Under the Agreement, the marital residence was awarded to defendant, with plaintiff, however, required to make the bi-monthly mortgage payments. The Agreement also called for short-term alimony and for plaintiff to also pay $150,000 in equitable distribution over a four-year period. The Agreement further provided that if plaintiff's income fell below $350,000 in any given year, he could seek modification of his alimony obligation.
Plaintiff failed to meet his obligations under the Agreement in 2007 and 2008. He did not, however, file a motion seeking modification. Rather, in early January 2007, defendant filed a post-judgment motion seeking to enforce the terms of the Agreement. Plaintiff then filed a cross-motion to modify his obligations under the Agreement. The court entered an order on March 30, 2007, directing plaintiff to pay $40,000, representing the second installment of his equitable distribution obligation, by April 30, 2007. The court denied plaintiff's cross-motion. Plaintiff moved for reconsideration, resulting in a May 11 order granting plaintiff an extension of time by which the second installment was to be paid and a reduction of plaintiff's $70,000 alimony obligation to $50,000.
Plaintiff failed to pay the third installment and defendant filed another enforcement motion in January 2008. The court set the matter down for a plenary hearing on March 5, 2008. That hearing did not take place because the parties entered into a consent order. The consent order modified, but did not eliminate, plaintiff's payment obligations. A key feature of the consent order was plaintiff's agreement not to seek any further modification of his equitable distribution. He also agreed not seek any modification of his alimony obligation earlier than January 1, 2010. Plaintiff did not meet the obligations as he was required to do under the consent order and defendant filed a third motion to enforce litigant's rights. Plaintiff opposed the motion and then cross-moved for an order granting him a plenary hearing on his equitable distribution and alimony obligations.
Plaintiff's certification in opposition to defendant's motion and in support of his cross-motion discussed the downturn of his real estate business, which plaintiff entered in the late nineties after retiring as a school teacher. In 2000, he became a fifty-percent partner of a new limited liability corporation, Millennium Properties, LLC (Millennium), formed for the purpose of "acquiring land, obtaining necessary zoning and site plan approvals in order to construct residential dwellings, and then either constructing the dwellings or selling the land to other developers with approvals in place." Defendant brought his oldest son into the business, which was initially successful and had a banner year in 2005. Plaintiff certified that he fully expected to discharge all of his responsibilities under the Agreement through his earnings at Millennium but was unable to do so because the real estate market declined and ultimately had a devastating impact upon Millennium's earnings. Following his re-marriage in December 2006, plaintiff sold most of his interest in Millennium and relocated to Virginia where he became a real estate agent.
Judge James F. Hyland conducted oral argument on the motion on January 9, 2009. The court granted defendant's motion and denied plaintiff's cross-motion. The court found that plaintiff was a sophisticated businessman who entered into the consent order with full knowledge of the economic situation in the real estate industry. The judge also expressed concern that plaintiff saw "fit to reimburse his son [$40,000] when he knew that he had this obligation [under the Agreement] to his former wife . . . ." The present appeal followed.
On appeal, plaintiff contends the Family Part order should be reversed because plaintiff was deprived of a plenary hearing on his ability to pay support obligations. We disagree and conclude that plaintiff's argument is without sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(1)(E).
A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This is especially true in family courts, which have "special jurisdiction and expertise in family matters . . . ." Id. at 413. "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless it is 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.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Similarly, a decision regarding modification of support obligations due to changed circumstances "rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)). See also Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). On appeal, the court should not disturb that decision "absent an abuse of discretion." Id. at 23.
Against this standard, we first note that it is a long-established policy in New Jersey to favor consensual agreements made to resolve marital controversies. Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). "The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistently with their post-marital responsibilities." Therefore, "'fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Id. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). Nonetheless, we acknowledge that it is equally well-settled that "[s]pousal support agreements are always subject to modification pursuant to N.J.S.A. 2A:34-23[,] upon a showing of changed circumstances." Deegan v. Deegan, 254 N.J. Super. 350, 354 (citing Lepis v. Lepis, 83 N.J. 139, 145 (1980)). The party seeking modification "has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes, supra, 117 N.J. at 504 (citations omitted). A court may reject requests for modification based on circumstances which are only temporary, voluntary or which are expected but have not yet occurred. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950); Lepis, supra, 83 N.J. at 151 (observing "[c]courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred."); Caplan v. Caplan, 182 N.J. 250, 268 (2005). In Larbig, supra, 384 N.J. Super. at 22, we held the trial court correctly refused to find changed circumstances when defendant failed to demonstrate that the decrease in his income from his private business was "anything other than temporary."
Here, at the time plaintiff entered into the consent order with defendant, as Judge Hyland observed, he was already aware of the economic downturn. Nonetheless, plaintiff voluntarily chose to enter into the agreement, in which he unequivocally agreed that he would not seek a "further modification of equitable distribution under any circumstances[,]" and also unequivocally agreed that he would "not seek [a] modification of alimony until, at the earliest, January 1, 2010, under any circumstances whatsoever." In his cross-motion, with the exception of his son's unforeseen accident, plaintiff relies upon the very same set of facts related to the economy, about which he was admittedly aware and fully understood, that existed when he entered into the consent order several months earlier.
As to plaintiff's claim that his son's accident also impacted upon his ability to meet his obligations, the court did not specifically address this issue. Plaintiff, however, presented nothing more than his bare assertion that his son's accident affected the business affairs of Millennium. Nor did the March 2008 consent order reflect that the parties expected and agreed that plaintiff's interest in Millennium would serve as the sole financial source for the payment of plaintiff's obligations under the agreement. Therefore, any error in the court's failure to consider the impact of his son's accident upon Millennium was harmless. R. 2:10-2.
Finally, as defendant argues, plaintiff was not entitled to an ability-to-pay hearing, as the requirement for such a hearing does not arise until after an arrest warrant has been issued and the defaulting party has either voluntarily surrendered or is brought before the court. See Wei v. Wei, 248 N.J. Super. 572, 574 (App. Div. 1991); Essex County Welfare Bd. v. Perkins, 133 N.J. Super. 189, 195 (App. Div.), certif. denied, 68 N.J. 161 (1975).
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