On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1447-04W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2010
Before Judges Axelrad and R. B. Coleman.
Defendant Mark Frost appeals from portions of a May 14, 2009 post-judgment order granting, in part, the motion of plaintiff Barbara Frost (now known as Forman) for enforcement of litigant's rights. Defendant argues that the Family Part judge erred in: (1) requiring payment of the equitable distribution award within 180 days, with the potential sanction of incarceration in the event of non-compliance; (2) denying his request to reduce his alimony obligation due to changed circumstances; and (3) awarding counsel fees to plaintiff based on findings of fact that do not have sufficient support in the record to warrant such award. We are not persuaded by defendant's arguments. Accordingly, we affirm the order as modified.
On June 1, 2004, after thirty-six years of marriage, plaintiff Barbara Frost filed a complaint for divorce against defendant Mark Frost. The final judgment of divorce, entered on August 25, 2006, by Judge Jeanne T. Covert of the Family Part, described the marital standard of living and the projected expenses of the parties based on that marital standard. The judge found that the parties lived an upper-middle class lifestyle that reflected expenditures between $28,000 and $30,000 per month and fixed defendant's alimony obligation at $9,500 per month.
Subsequently, on plaintiff's 2008 motion for enforcement of litigant's rights heard by Judge Patricia B. Roe, defendant cross-moved seeking, among other relief, a reduction in his alimony obligation. Defendant noted that Judge Covert found his gross annual income was $357,000, resulting in $214,000 annual disposable income, with $17,858 in disposable income per month. He argued that his alimony obligation should be modified because: (1) he had not drawn a salary from his law firm, Frost & Zeff, for the last two years, but instead drew money in the form of loans from the firm's line of credit; (2) Frost & Zeff was in a dire financial state; (3) his actual income via Frost & Zeff's income and credit line advances was only $304,000; (4) his compliance with Judge Covert's order to lift the lien on the marital home held by T.D. Bank North resulted in his being forced to resort to using Counsel Financial (CF) as a lender at an eighteen percent interest rate, since T.D. Bank North would not relinquish the lien unless it was paid in full; (5) the interest accrued from CF loans in the course of one year was $171,000; (6) he was paying approximately $30,000 per year for his son's graduate school and living expenses; (7) he wished to rent the marital home as plaintiff no longer resided there; and (8) he was "doing the best to tighten his belt," his example being that he traded in his Porsche and leased a BMW, saving $400 a month.
In an order entered August 1, 2008, Judge Roe denied defendant's application for an order reducing alimony, stating she was not "satisfied defendant ha[d] met his burden of demonstrating a substantial change in circumstance."
On February 27, 2009, plaintiff submitted a certification in support of a motion to enforce litigant's rights, and on April 16, 2009, defendant submitted a certification in opposition to that motion and in support of a cross-motion seeking a reduction in his alimony support obligation. Defendant again maintained that he had experienced "changed circumstances" that justified either a reprieve from or a reduction in the amount of his alimony obligation. He reiterated many of the circumstances the court had already rejected, regarding his law firm's dire financial straits and pending dissolution, his reduced income in 2007, his high interest loan and his attempt to "tighten his belt," and further argued that in 2008, Frost & Zeff operated at a loss requiring him to draw money solely from the firm's line of credit*fn1 , he opened his own firm and handled Frost & Zeff's outstanding cases on a contingent fee basis, and in February 2009, he was diagnosed with prostate cancer that extended beyond the margins of the prostate.
On May 14, 2009, Judge James W. Palmer, Jr. heard oral argument on the parties' motions and entered a post-judgment order that day, denying defendant's request for a reduction in his alimony obligation. Judge Palmer found:
In support of his contention of "changed circumstances," Defendant states that he was diagnosed with prostate cancer, he has only been able to take a salary in the form of loans from his law firm, his law firm is in the process of dissolving and the fact that his law firm has not been able to draw a profit in recent years. With the exception of his cancer diagnosis, the Court found these events insufficient to meet the "changed circumstances" burden when Defendant raised them in August of 2008.
The Court agrees with that finding in that these events are not permanent or significant changes that would warrant modification. Further, Defendant has stated that his law firm is in the process of dissolving. However, Defendant has [also stated] that he has opened his own firm, bringing with him many of the clients from Frost & Ze[ff]. In fact, Defendant certified that he was currently arguing a trial for a client. Therefore, although Defendant's firm may be dissolving, Defendant is clearly not without employment. Therefore, the Court finds a modification of Defendant's alimony obligation unwarranted at this time.
Judge Palmer ordered defendant to pay plaintiff the equitable distribution owed in the total amount of $461,646.01. Defendant admitted he owed this amount but claimed he did not have the funds to pay plaintiff. "The Court [did] not find this a sufficient justification to allow him to ignore his financial obligation any longer[,]" finding that he was "deliberately tying up his money elsewhere." Judge Palmer's order noted that if defendant again failed to heed the court's order that he pay plaintiff the three years past-due equitable distribution, "[p]laintiff may bring a motion for enforcement that includes sanctions ranging from further economic penalties to loss of driver's license to incarceration. R. 5:3-7(b)."
The judge also granted plaintiff's request for counsel fees and costs regarding the 2009 enforcement application, ordering defendant to pay $4,597.50 directly to plaintiff's attorney. Defendant filed a ...