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Penaranda v. Penaranda

November 3, 2010

ELISEO PENARANDA, PLAINTIFF-APPELLANT,
v.
GLORIA PENARANDA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-817-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2010

Before Judges Carchman and Graves.

Plaintiff Eliseo Penaranda appeals from his third unsuccessful application to reduce alimony paid to his former wife, defendant Gloria Penaranda. Judge Grispin, in the Family Part, concluded that plaintiff had failed to establish a prima facie showing of changed circumstances sufficient to warrant a hearing. We affirm.

These are the relevant facts. Plaintiff and defendant were married on May 23, 1977 and divorced by judgment of August 21, 2007. The parties entered into a property settlement agreement (PSA) that required plaintiff to list his business, Eliseo Penaranda Auto Repair (the business), for immediate sale. In the interim, plaintiff agreed to pay defendant $400.00 per week in alimony. According to the PSA, once plaintiff sold the business and the profits were divided equally, either party could apply for modification of alimony.

Since the execution of the PSA, plaintiff failed to comply with various provisions of the PSA, including the sale of his business and the payment of alimony. Defendant successfully moved to hold plaintiff in violation of litigant's rights on December 14, 2007, May 9, 2008, December 10, 2008, May 13, 2009, July 24, 2009 and October 5, 2009. Consequently, in addition to the agreed-upon $400.00 per week in alimony, plaintiff has been ordered to pay an additional $25.00 per week towards the accumulated arrears of $26,585.00. Notwithstanding his failure to comply with the PSA as well as the condition precedent that he dispose of his business, plaintiff has filed three unsuccessful motions for a modification of alimony.

His first application, considered in January 2009, was denied because he "merely certified that he was having difficulty abiding by his alimony obligation because of a decrease in his income, and no proof was submitted to that effect." His second, decided six months later in July 2009, was similarly denied for lack of credible proof as his motion was not supported by his own certification but solely by a certification of his counsel. See R. 1:6-6.

The motion judge also expressed "grave concerns" about the 2007 and 2008 federal tax returns submitted by plaintiff. Specifically, the returns reflected discrepancies in the name of plaintiff's business, the address of plaintiff's business, plaintiff's employer identification number and the gross receipts plaintiff reported. For example, Schedule C of the 2007 return identifies plaintiff's business as Eliseo Penaranda Auto Repair located at 61 Seventh Street in Elizabeth. The 2008 return reflects an entity known as EP Colombia Auto Repair Corp. at 82 East Jersey Street, Elizabeth. The businesses further set forth different Employer Identification Numbers. Finally, the 2008 Schedule C contains no business information but indicates a profit of $5,128.

The motion judge concluded that the returns were "questionable" because of facial alterations to the preparer's section; certain "returns were initially stamped self-prepared. The self was whited out, and then Medina Services was printed on the returns." Cumulatively, plaintiff had "very little credibility," and there was an insufficient showing of credible changed circumstances to order a plenary hearing.

Less than one month after his previous motion was denied, plaintiff filed a nearly identical motion. The renewed motion was accompanied by plaintiff's certification of his finances. Plaintiff's certification alternatively alleged that alimony should be modified because defendant is cohabitating with another. Defendant filed a cross-motion, three days late, seeking to hold plaintiff in violation of litigant's rights.

Because plaintiff's motion was devoid of any factual information to support his claim that defendant had remarried or cohabitated with another, plaintiff's motion to suspend alimony was denied. Regarding the tax returns, the motion judge questioned plaintiff directly. Plaintiff first stated that he grossed approximately $600.00 to $700.00 per week, or $31,200.00 to $36,400.00 per year. However, plaintiff's 2008 Schedule C tax return stated that plaintiff only grossed $27,000 per year. Next, plaintiff disclosed that he earned cash that was not reflected in his case information statement (CIS) and tax returns. As a result of plaintiff's admissions, the judge found that plaintiff had not demonstrated a prima facie case of changed circumstances to warrant a hearing. While recognizing that defendant's opposition and cross-motion were untimely, the judge found plaintiff in violation of litigant's rights for failing to meet his alimony obligations and for failing to comply with previous orders of the court.

This appeal followed.

On appeal, plaintiff asserts that he established a prima facie case of changed circumstances and was entitled to a plenary hearing. He claims that the denial of the hearing was an abuse of discretion. Finally, he argues that since defendant filed her cross-motion out-of-time, ...


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