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Berger v. Berger

May 21, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2035-07.

Per curiam.


Submitted May 5, 2010

Before Judges Graves and J. N. Harris.

Defendant Bruce K. Berger appeals from the June 26, 2009 Family Part amended order granting plaintiff Mary K. Berger's post-judgment motion to enforce litigant's rights while denying defendant's cross-motion for modification of his obligations to pay alimony and to provide life insurance. We affirm.

On July 10, 2007, plaintiff and defendant dissolved their marriage of twenty-six years. They entered into a Property Settlement Agreement (Agreement) that was incorporated into the final judgment of divorce. Pursuant to the Agreement, the parties agreed that alimony would be paid by defendant to plaintiff in the amount of $48,000 per year (in monthly increments of $4,000) and that defendant would also maintain a life insurance policy in the sum of $500,000, naming plaintiff as beneficiary.

Beginning in May 2009, defendant failed to meet his alimony obligations. Instead of filing a motion seeking modification, he unilaterally reduced the monthly payment to $500, but then later increased it to $1,000. In response, plaintiff filed a post-judgment motion seeking to enforce the terms of the Agreement requiring the agreed-upon $4,000 per month in alimony and proof of the existence of the life insurance policy. Only then did defendant file a cross-motion to decrease his alimony to $1,500 per month and modify the life insurance obligation to $250,000.

Defendant presented a Case Information Statement dated January 1, 2009, which indicated his net income for 2008 was in the amount of $91,636.*fn1 For 2009, defendant claimed his annual salary was $69,600, but that he was also withdrawing retained earnings*fn2 from a closely held corporation--Metal Partners, Inc.*fn3 - -to supplement his earned income. He also received the benefit of a corporate leased motor vehicle--a Mercedes--paid at the rate of $679 per month by defendant's business.

Defendant explained that he was trying to weather the economic storms of 2008 and 2009 by, among other things, attempting to diversify his core business by offering fabricated metal products to homeowners and businesses through a retail location in Ridgewood known as Architectural Metal Concepts. He indicated that he had to invest $60,000 in the new venture, which was generating revenue at a much slower rate than anticipated. Defendant also stated that his businesses suffered steep declines in sales, the value of inventories, and the ability to collect account receivables.

The Family Part judge expressed skepticism over the accuracy of defendant's financial data when she commented, "my problem is that it doesn't add up for me." For instance, the court noted that defendant's indicated income was clearly insufficient to cover his debt service--including a $3,108 per month mortgage--causing "pause and concern as to what your real gross income is and the amount that you're bringing home to be attributed to you." Ultimately, the Family Part stated to defendant:

I mean you're current on your debts, so that means you've paid your car, you've paid your mortgage, you've paid your electricity, and you tell me you're making less than $2,000 a month and yet you're paying for yourself more than [$]4,000, so that inures to me that what you've submitted to the Court is not credible and how can this Court substantiate a modification when what you have set forth before me as the terms for a modification [does not] add up under your own documents that you submitted?

In response, defendant argued that the court was confusing asset reduction with income, and that he was depleting assets from his allegedly insolvent business ventures to fund his now-unfair alimony obligation. The Family Part judge was still unconvinced, stating, "I don't see that you were very forthcoming." After reviewing the parties' financial conditions at the time they originally negotiated the Agreement, the court commented that it would be "speculative to go for a reduction now when business could yield more money this year than [defendant is] projecting."

After oral argument, the Family Part entered an order on June 26, 2009, directing defendant "to pay alimony for May [2009] and each month thereafter in the amount of $4,000.00." In addition, the court required defendant to "provide the plaintiff with proof of life insurance in the amount of $500,000, naming the plaintiff as beneficiary within ...

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