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Erin H. Ruggiero v. John Ruggiero


July 27, 2011


Per curiam.


Submitted January 10, 2011

Before Judge C.L. Miniman and LeWinn.

In this post-judgment matrimonial matter defendant appeals from the November 20, 2009 order denying his requests to decrease his alimony obligation to plaintiff and to eliminate his alimony arrears; he also appeals from the January 8, 2010 order denying his motion for reconsideration. We affirm.

The parties were married in February 1987 and divorced in June 2007; they have three children, a daughter born in 1987 and two sons born in 1989 and 1991. In the property settlement agreement (PSA) appended to their judgment of divorce, the parties acknowledged that "alimony [was] a contested issue in this case." Nonetheless, defendant agreed to pay permanent alimony of $7000 per month. This amount was based upon the imputation of $200,000 gross annual income to defendant and $30,000 gross annual income to plaintiff. The PSA also obligated defendant to pay child support of $1096 per month for the two younger children.

Three months after the divorce, in September 2007, defendant filed a motion to reduce his alimony obligation; that motion was denied. He filed a second motion in September 2008. That motion resulted in the entry of a consent order in October 2008, which reduced defendant's alimony to $200 per week, with an additional $25 toward arrears. The order also emancipated one of the parties' sons and provided that "no child support shall be paid by either party" for the other two children. Also pertinent here is another provision in that consent order that plaintiff's "[c]ohabitation . . . in any circumstances shall not be a basis for modification of . . . alimony."

In the interim, defendant remarried. He and his new wife have two children, born in May 2008 and August 2009.

In September 2009, defendant filed his third motion to reduce alimony and to eliminate arrears, which is the subject of this appeal. In support of his motion, defendant certified that the 2008 alimony reduction was based on an imputed annual income of $58,000. Defendant stated that since 2008, he has not been able to earn even that amount. He asserted that he was over $500,000 in debt and had filed for bankruptcy, which was discharged in February 2009. The home that he shares with his second wife and their two children was facing foreclosure because he was two months behind in payments.

Defendant contended that, by contrast, plaintiff's life "has dramatically improved" over the past year. She "purchased a home with her childhood sweetheart," "purchased new furniture, electronics and appliances," and "traveled on vacation." Defendant alleged that plaintiff "is receiving financial support from her current boyfriend" but acknowledged that "in [their] last agreement [he] waived [his] right to modify base[d] solely on co[]habitation." Nonetheless, defendant characterized his motion for a reduction in alimony as one "based on changed circumstances on [his] part as well as on the plaintiff's part."

Defendant submitted his 2008 income tax return, which reported earnings of $25,203. His pay stubs indicated that he was employed by Wyndham Vacation Resorts at a rate of $7.25 per hour, but he did not work full-time.

Plaintiff filed a cross-motion to enforce the October 2008 order. She contended that defendant had not made any alimony payments to her since June 2009, which had "put tremendous pressure on [her] finances." Plaintiff alleged that defendant "inten[d]ed to file bankruptcy after he managed to get a mortgage approval strictly in his wife's name, . . . then decided to conveniently file for bankruptcy knowing that since everything was in his wife's name he would be able to walk away from his debt obligation."

Plaintiff acknowledged that she is currently living with a "new re-acquainted friend" but denied that he was supporting her. She asserted that her friend allowed her to live with him in exchange for her paying the taxes, utilities, food and any incidentals, but that the house is in the friend's name only.

Plaintiff submitted a copy of her 2008 income tax return, which indicated that she had reported gross income of $46,175; however $23,100 of that income came from cashing in her IRA.

Judge Eugene J. McCaffrey, Jr. heard oral argument on November 20, 2009. The judge noted that defendant had the "burden of proof to show there's been a substantial change in circumstances" and defendant had failed to "prove . . . that [he is] using [his] best efforts and good faith" to make more money than his current part-time job. The judge also noted that at the time of the October 2008 consent order, plaintiff had recognized that she "may have to cohabitate." As reflected in that order, plaintiff had been willing to reduce the alimony payments in exchange for defendant agreeing not to "look[] into her pocket with regard to support or cohabitation."

Judge McCaffrey then entered an order denying defendant's motion. In a statement of reasons appended to the order, the judge reviewed the financial documents defendant had submitted, noting that defendant "ha[d] not certified to or attached documentation to demonstrate his efforts to find alternative employment that would be comparable to the income imputed to him on October 9, 2008." The judge stated that [d]efendant has not met his burden of making a prima facie showing of changed circumstances to warrant a permanent reduction of his spousal support obligation. Defendant has not provided the [c]court with any evidence to suggest that his change of circumstances is anything other than temporary or to explain why he is now incapable of earning income at his previous level. The fact that he is currently employed by Wyndham Vacation Resorts earning $7.25 per hour plus commissions does not automatically require the [c]court to find that he has made reasonable efforts to find employment that is appropriate given his abilities. This has not been document[ed] to the [c]court's satisfaction. Also, the [d]efendant certifies that the amended spousal support award was based upon his ability to earn $58,000 per year. However, that is not found in the October 9, 2009 [o]rder. . . .

Judge McCaffrey also denied defendant's request to eliminate his alimony arrears. As of November 17, 2009, defendant was $14,711 in arrears. The judge found "no legal basis upon which to grant [d]efendant's request."

On or about November 30, 2009, defendant filed a motion for reconsideration. He submitted a certification in which he renewed all of the arguments he had raised in his first motion; he did not, however, present any new information.

On January 8, 2010, Judge McCaffrey denied defendant's motion for reconsideration. In his decision rendered from the bench the judge found that defendant did not "address the standard to be utilized for reconsideration." The judge stated that defendant's new family was not a basis to justify a reduction in alimony. The judge also found that defendant "waived the ability" to seek a reduction based on plaintiff's cohabitation. The judge concluded that, with everything he had before him, his decision "would be the same."

On appeal, defendant contends that the judge committed the following four errors: (1) "not considering the substantial reduction in [his] income over a [three-]year period"; (2) "not considering [his] additional obligations . . . as a result of his remarriage and two additional children"; (3) "not considering the substantial financial benefit . . . plaintiff is receiving from her relationship with her boyfriend"; and (4) "not considering what was fair and equitable as well as the substantial financial hardship when denying the motion to vacate arrears."

Having considered these contentions in light of the record and the controlling legal principles, we conclude they lack "sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(1)(E), beyond the following comments. We affirm substantially for the reasons stated by Judge McCaffrey in his decisions from the bench and the statement appended to his order of November 20, 2009, which, we are satisfied, are "based on findings of fact which are adequately supported by [the] evidence." R. 2:11-3(e)(1)(A).

Our deference to the decisions of family judges due to their "special jurisdiction and expertise in family matters," Cesare v. Cesare, 154 N.J. 394, 413 (1998), requires us to accept a judge's fact findings "when supported by adequate, substantial, credible evidence." Id. at 412. Alimony modification requests are particularly entitled to deference as such decisions rest within the sound discretion of the family judge. "Each and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). With these standards in mind, we briefly address defendant's contentions.

In October 2008, fifteen months after the parties were divorced, defendant's alimony obligation was substantially reduced, by consent, from $7000 per month ($1628 per week) to $200 per week. The motion which is the subject of this appeal was filed less than one year after entry of the October 2008 consent order.

Under these circumstances, we are satisfied that the judge properly found that defendant failed to demonstrate a permanent as opposed to temporary change in his earning capacity since October 2008. Lepis v. Lepis, 83 N.J. 139, 151 (1980). Furthermore, defendant made no showing of any efforts to find employment that would enable him to earn a salary comparable to the $58,000 annual income on which, he claimed, the 2008 order was based. See Dorfman v. Dorfman, 315 N.J. Super. 511, 517 (App. Div. 1998).

Moreover, the October 2008 consent order contained the parties' express agreement that plaintiff's cohabitation "in any circumstances shall not be a basis for modification of . . . alimony." Thus, defendant waived the right to raise this claim as a basis for relief.

With respect to defendant's remarriage and additional children, we have long recognized that a supporting spouse's "role in his new family does not obviate his responsibilities to his first family. Any arguments made in that vein are singularly unimpressive." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544 (App. Div. 1992); see also Wei v. Wei, 248 N.J. Super. 572, 575 (App. Div. 1991) (a supporting spouse's remarriage does not constitute "changed circumstances . . . substantially impair[ing] his ability to comply with" his alimony obligation).

As for arrears, the decision whether to reduce or eliminate support arrears rests within the sound discretion of the judge. Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988) (citing Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981)), certif. denied, 114 N.J. 505 (1989). As noted above, within fifteen months of the parties' divorce, defendant's alimony obligation was substantially reduced. At the same time, his obligation to pay child support was terminated. The benefits that accrued to defendant from those two events were significant; a further benefit in the elimination of accrued arrears was not warranted under the circumstances.

We are further satisfied that the judge properly denied defendant's motion for reconsideration. As noted, in support of that motion defendant simply reiterated the assertions in his prior motion. Thus, he failed to comply with Rule 4:49-2, which requires the moving party to provide "a statement of the matters or controlling decision which [he] believes the court has overlooked or as to which it has erred."

"Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence . . . ." [Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

Defendant failed to demonstrate any basis for reconsideration.

Finally, we address two pending motions. Defendant filed a motion on April 23, 2010, to strike certain pages of plaintiff's appendix; plaintiff thereafter filed a motion to "reconsider [her] brief AS IS." We hereby grant defendant's motion to strike those portions of plaintiff's appendix containing and/or referring to documents that were not part of the record before the Family Part judge. Plaintiff does not dispute the fact that these documents were not in evidence; rather, she simply asks us to accept her brief and appendix "as is." Rule 2:5-4(a) mandates that "[t]he record on appeal shall consist of . . . papers on file in the court or courts . . . below . . . ." Appellate courts will generally not "consider evidentiary material which is not in the record below . . . ." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:5-4 (2011).

Defendant's motion to strike is granted. Plaintiff's motion to accept her brief "as is" is denied; we have considered the brief but disregard any materials that were not part of the record in the trial court.

The orders under appeal are affirmed.


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