On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-310-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 3, 2010 - Decided Before Judges Payne and Baxter.
Plaintiff, Ernest Borsellino, appeals from a December 23, 2008 order denying his motion to reduce alimony on the basis of changed circumstances and from a January 21, 2010 order denying his post-judgment cross-motion to reduce alimony. We find the appeal from the 2008 determination to be untimely, Rule 2:4-1, and decline to consider it. Our focus will be on the court's January 21, 2010 order, which we affirm.
The record reflects that Ernest and Margaret Borsellino were married on September 29, 1974 and were granted a dual judgment of divorce on September 14, 2006. A property settlement agreement (PSA), negotiated by the parties and incorporated into the judgment of divorce, provided for the payment of alimony to defendant in the following terms:
Effective on August 1, 2006, Husband shall pay alimony to the Wife in the amount of $55,000 per year until termination as set forth herein. Alimony shall be paid directly to Wife, payable in 12 monthly payments of $4,583.33 on or before the first day of each month, as "permanent alimony" as defined pursuant to N.J.S.A. 2A:34-23 and the case law arising therefrom.
The parties agree that for purposes of computing alimony, they considered a marital lifestyle based upon the income available solely from Husband's income adjusted to take into account all income, benefits and perquisites.
Plaintiff is presently in his mid-fifties. At the time of the divorce, plaintiff owned a home inspection business known as All Pro Home Inspections. Plaintiff holds licenses as a home inspector, pesticide applicator, radon measurement technician, and electrician. He also has some training as an electrical engineer, but has not completed his degree in this field. Plaintiff employed two people in his business: another home inspector and a secretary. His adjusted income in the years before the divorce was $127,835 in 2000, $127,458 in 2001, $145,173 in 2002, $179,615 in 2003, $179,895 in 2004, and $197,695 in 2005. It was assumed for purposes of support at the time of the divorce that plaintiff's earnings were $187,000 per year.
Plaintiff has certified in connection with his most recent motion that, as the result of the decline in the real estate market, the loss in mid-2007 of an employee who has become a direct competitor,*fn1 and a reduction in the fees that can be charged for home inspections from a range of $600 to $700 to a present charge of $495, defendant's income has declined to $148,219 in 2007, to $115,975 in 2008, and to approximately $113,100 in 2009. Plaintiff alleges that he has been required to lay off his secretary, and as a consequence, he does all the administrative work in addition to the home inspections, working fifty to seventy hours per week. He maintains a home office.
Plaintiff states that, although he is licensed as an electrician, he has no experience in that field. Further, full-time employment as an electrician would require expenditures for a truck, equipment, advertising, and a helper, and would result in less income than plaintiff is presently making. Further, plaintiff claims that it would be unreasonable for him to work part-time as an electrician or in any other field because of his present fifty- to seventy-hour work week.
Plaintiff lives in a house in Maplewood, purchased during the parties' separation, that, as of November 2009, was encumbered by a first mortgage of $434,000 and a second mortgage of $70,000. Plaintiff pays mortgage charges of $4,821 per month. He claims that the mortgages on the property exceed the property's value. The parties' children are emancipated. However, plaintiff has resided since the winter of 2006 with a woman with a successful career in publishing.
Defendant, who is also in her mid-fifties, has a high school education and no substantial work experience outside the home. After the divorce, she worked part-time for a florist, but that temporary employment was seasonal and has now ended. She had been unable to obtain alternative full- or part-time employment. At the time of the divorce, the parties sold their home in Maplewood, equally dividing the sales price of approximately $700,000 and the costs incurred in the sale. Additionally defendant was paid $103,000 as equitable distribution of her share of plaintiff's business. She utilized $245,000 of her equitable distribution as a down payment on a house that she purchased for $420,000. She maintains approximately $60,000 as savings. Defendant claims that her sole support comes from plaintiff's alimony payments, and that her lifestyle has decreased since the divorce.
On November 20, 2008, approximately two years after the parties' divorce, plaintiff moved pro se for reduction of his alimony obligation, alleging that his income was not sufficient for him to pay the agreed amount, and that he no longer had credit against which he could borrow to make the payments. The motion was heard on December 23, 2008 and denied. In reaching his determination, the Family Part judge distinguished plaintiff's employment in the housing market from litigants employed in financial services, which the judge observed, were "really, really getting the big hit." In contrast, defendant was "a working man. He's got skills." ...