On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1741-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2010
Before Judges C.L. Miniman and LeWinn.
Plaintiff Joan DelGuercio*fn1 ("Joan") appeals from a June 30, 2009, order reducing the limited duration alimony due from defendant Anthony DelGuercio ("Anthony") and extending the term thereof. Because Anthony failed to demonstrate a prima facie case of changed circumstances justifying any relief, we reverse the order and remand this matter for further proceedings consistent with this opinion.
Joan and Anthony were married on June 28, 1992, and have two children. On December 19, 2007, the parties entered into an oral marital settlement agreement (MSA) that was placed on the record and incorporated into an Amended Dual Final Judgment of Divorce (JOD) entered on March 8, 2008. The parties stipulated that Anthony would pay limited duration alimony for seven years in the amount of $202 per week, less $50 to be applied to the repayment of a pension loan taken by Joan, which reduced the alimony payment to $152 per week.
Pursuant to the child support guidelines, child support was calculated at $175 per week based on Anthony's imputed income of $53,000 per year and Joan's imputed income of $23,000 per year*fn2 plus her seven-year term alimony of $202 per week. At the time of the JOD, Anthony was an unemployed union carpenter but expected to return to work at the level of income imputed to him in the MSA. Joan was then working part-time at a rate of less than $23,000 per year.*fn3 The parties stipulated "on the record that their lifestyle would be substantially similar based upon the alimony and division of assets pursuant to their agreement."
Subsequent to the divorce, Anthony paid alimony from his unemployment checks but fell into arrears when his unemployment benefits ceased. He took out a union loan to pay down the arrears. Anthony was hired as a plant worker by Design Display Group, Inc., in Carlstadt on March 24, 2008. According to Anthony, his employer was "based out of New York. . . . I'm not working in New York, but it's a [u]nion, local, so I'm working with two [u]nions to have a job." His 2008 W-2 from Design Display Group reported wages of $20,754.26 for the nine months that he worked. Pay stubs from March and April 2009 reflected an hourly rate of $13, which corresponds to approximately $25,000 per year. After taxes and miscellaneous deductions, including child support and alimony payments garnished by the Probation Department, Anthony's bi-weekly net pay during the first four months of 2009 was approximately $320. Although the alimony and child support payments pursuant to the JOD totaled $327 per week, the garnished amount was reduced to approximately $608 bi-weekly based on Anthony's actual level of income.
On or about April 25, 2009, Anthony moved for a decrease in child support and alimony. He sought a reduction in child support from $177 per week to $85 per week and a reduction in alimony payments from $150 [sic] per week to $85 per week, "due to employment status because of the severity of the economy." Anthony asserted that the Probation Department advised him to file this motion "since I have been financially disabled for a long period of time."
In an April 25, 2009 letter to the court submitted with his motion, Anthony stated that he was "presently seeking [c]counsel to file for bankruptcy." He further asserted that he had been actively seeking a new job since being unemployed prior to the divorce but that, "due to the economic crisis, it has been impossible for me to find a job making $53,000 a year. With the unemployment rate at an all time high, finding a second job has been impossible as well." On the Case Information Statement (CIS) appended to his motion, Anthony reported $620 in monthly expenses for rent, transportation, and miscellaneous personal expenses. He obtained medical, dental, prescription drug, and disability insurance through his employer and did not report any other assets. He had $51,000 in credit-card and miscellaneous debt as of April 18, 2009.
Joan opposed Anthony's motion and filed a cross-motion to enforce litigant's rights. She asserted that Anthony was "underemployed" and that "[h]e is a skilled union carpenter and well able to earn two or three times what he is earning now. He has also failed to demonstrate that he is looking for higher paying work or has made any effort to work overtime or a second job." She sought an order directing Anthony to comply with assorted provisions of the JOD not pertaining to alimony or the present appeal, including directives to procure health and life insurance and to pay unreimbursed medical expenses.
Anthony then filed a certification in response to Joan's cross-motion. He asserted that "the construction industry has been devastated" by the economy and that he was "lucky to have a job as [he had] survived layoffs from [his] present employer two times." He also expressed optimism that his situation was "temporary."
After being sworn in, the parties presented oral argument at the motion hearing on June 12, 2009. Although the parties were under oath and Joan was represented by counsel, there was neither direct nor cross-examination. During the colloquy with Anthony about the imputed income in the settlement agreement, the judge noted that Anthony had agreed to the MSA when he was unemployed and that "it's hard to say you got a decrease when you get a job for less [than $53,000], because you didn't have any income" at the time of the divorce. ...