NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 cohabitation." 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 ...