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Michael Goldstein v. Marci Goldstein

January 18, 2011

MICHAEL GOLDSTEIN, PLAINTIFF-APPELLANT,
v.
MARCI GOLDSTEIN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2234-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2010 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

Plaintiff Michael Goldstein appeals from the order of the Family Part denying his motion for a downward modification of his alimony obligation and determining the amount of arrears due to his former wife, defendant Marci Goldstein. Plaintiff argues that the court failed to give due consideration to evidence showing his significant and permanent loss of income since the time he agreed to pay defendant $22,000 a month in alimony.

After reviewing the record before us, we are unable to ascertain the basis for the trial court's ruling. The motion judge did not make specific factual findings concerning plaintiff's claims that technological innovations beyond his control have rendered him permanently incapable of earning the level of income he earned in November 2005, when he agreed to pay defendant $22,000 per month in alimony. We thus remand for the court to articulate with specificity the facts underpinning plaintiff's motion, and the legal principles governing its disposition. R. 1:7-4(a).

I

The parties were married in 1996 and had three children, a girl born in 1997, and two boys born in 2000 and 2002. During the course of the marriage plaintiff worked as a commodities trader, trading privately on a personal trading account on the New York Mercantile Exchange. Thus, in contrast to a broker or a dealer, plaintiff traded using his personal funds and conducted his trades in person on the floor, or "pit," of the Exchange. Between 2000 and 2006, plaintiff earned in excess of $1,000,000 per year, with a peak gross income of $2,647,244 in 2005.

The parties divorced through a dual Final Judgment of Divorce (JOD) entered by the court on November 2, 2005. As part of the JOD, the parties agreed that plaintiff was to pay limited duration alimony of $22,000 per month to defendant for a period of ten years, an additional $4,000 per month for child support, and numerous other expenses for the benefit of the children, including continued health insurance coverage, Hebrew school tuition, and summer camp fees.*fn1 Plaintiff remarried in April 2006; he and his current wife have a son born in 2007.

Plaintiff's inability to maintain this level of financial support first surfaced in February 2008, when defendant filed a motion for enforcement of litigant's rights, alleging that plaintiff had ceased paying alimony as of the start of 2008. In turn, plaintiff filed a motion seeking a modification of his support obligations, claiming that his earnings dropped significantly during the final months of 2007. According to plaintiff, he earned a total of $25,000 during the last seven months of 2007, and estimated this decline would continue in 2008.

Plaintiff attributed this drastic downward change in income to the introduction of mandatory computer trading, which he claims "significantly altered the commodities market" because "transactions previously open only to plaintiff and his colleagues in the 'pit' were now available to everyone in the world," and thus "[t]he benefit and trading edge that plaintiff formerly enjoyed were gone." The Family Part denied plaintiff's motion for modification of support in an order dated March 28, 2008.

In July 2008, defendant filed a second motion for enforcement of litigant's rights. Plaintiff again responded with a motion for modification of support. A different Family Part Judge temporarily reduced plaintiff's alimony support obligation to $5,000 per month pending a plenary hearing, which took place on May 27, 2009.

At the hearing, plaintiff testified that he "went from making a million dollars a year to under $100,000"; his counsel argued that it had become "simply impossible [for plaintiff] to meet [his] financial obligation to [his] former wife." According to plaintiff, as a result of his decline in income, he had been forced to sell his house, his car, and some jewelry and to apply the proceeds of these sales to pay back taxes, alimony, and child support. He and his current wife have worked to "cut costs wherever possible," including resigning as a "golf member" from their country club and no longer taking vacations.

With respect to this ability to continue to work as a commodities trader, plaintiff testified that he has started "taking [computer] classes . . . going to seminars . . . [and] doing everything [he] can to get successful again at trading." When defendant's attorney questioned him about the steps he has taken to procure alternative and more lucrative employment, plaintiff indicated that he had circulated copies of his resume and spoken with colleagues in the ...


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