June 25, 2010
CARLOS R. CABRERA, PLAINTIFF-APPELLANT,
LOIS G. CABRERA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1139-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 12, 2010
Before Judges Axelrad and Fisher.
In this post-judgment matrimonial matter, plaintiff Carlos Cabrera appeals from the Family Part judge's order of September 11, 2009, denying his application to reconsider the May 5, 2009 order, which denied his motion for termination of alimony based on a claim of changed circumstances. We affirm.
Under the parties' property settlement agreement (PSA), incorporated into the final judgment of divorce entered on April 29, 2003, plaintiff was obligated to pay defendant $65,000 a year ($2,708 twice a month) in permanent alimony following a twenty-six year marriage. On March 20, 2009, plaintiff filed a motion to terminate alimony, certifying that at the time of the divorce he was working in the technology field and earning about $184,000 per year. In April 2008 he learned his employment was terminated and began receiving a severance package through April 2009. Plaintiff claimed his annual income would then drop to $50,000. He certified to his efforts to find other employment, at that point to no avail. Plaintiff further certified that his salary had been in the range of $230,000 per year for the last three years, which included a bonus in 2007. Defendant opposed the motion and filed a cross-motion seeking, in part, to hold plaintiff in violation of litigant's rights for failing to provide proof of insurance.
By order of May 5, 2009, Judge Lisa Perez Friscia denied plaintiff's motion, finding he failed to demonstrate a prima facie showing of changed circumstances necessary to warrant a modification of alimony under Lepis v. Lepis, 83 N.J. 139, 157 (1980), because he consistently earned and was currently earning a substantial annual income, including severance pay. She expressly noted in the order that plaintiff "may re-file for a modification of alimony in the future with the appropriate documents to demonstrate changed circumstances that would not be found temporary pursuant to Bonanno v. Bonanno, 4 N.J. 268 [(1950)] and Innes v. Innes, ll7 N.J. 496 (l990)." The order further provided that defendant's "application for the Court to continue alimony is hereby GRANTED."
On July l4, 2009, defendant filed a notice of motion adjudicating plaintiff to be in violation of litigant's rights, in part, for his alimony arrearage of approximately $16,000, and for sanctions. On July l6, 2009, plaintiff filed a cross-motion, in part seeking reconsideration of the May 5, 2009 order. Plaintiff stated in a certification that re-filing for modification in the future would force him to use his liquid assets, including his IRA, to "comply with the order while a new motion is filed (basically to demonstrate the same facts that were presented to Judge PerezFriscia)" and re-enclosed his initial submission. He further stated that on June 27, 2009, he remarried and temporarily lives in Jackson, Tennessee with his wife and ten-year-old stepson.
Defendant opposed the motion and plaintiff filed a responding certification. By order of September 11, 2009, the court denied plaintiff's motion and granted defendant's motion to enforce payment of the alimony arrearage. This appeal ensued.
Plaintiff did not file a timely appeal of the May 2009 order and thus that order is not properly before us. See R. 2:4-1(a) (stating that appeals from final orders of the court shall be taken within forty-five days of their entry). In addition, plaintiff's notice of appeal only challenges the September 11, 2009 order denying reconsideration. His motion for reconsideration was clearly filed out of time and thus the September order could be affirmed based solely on this procedural deficiency. See R. 4:49-2 (requiring that, except for correction of clerical errors, a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than twenty days after service of the judgment or order on the parties). Be that as it may, however, we are satisfied with the correctness of the substantive rulings regarding plaintiff's failure to establish sufficient changed circumstances for a modification or elimination of alimony under the case law and affirm substantially for the reasons set forth by Judge Perez Friscia.
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