July 28, 2011
RAYMOND SEARS, PLAINTIFF-APPELLANT,
LAURE SEARS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-123-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2010
Before Judges Gilroy, Ashrafi and Nugent.
Plaintiff, Raymond Sears, appeals from a May 21, 2009 post-judgment order denying his motion to: reduce his child support and alimony obligations; modify payment of his arrears; modify his contribution toward the children's activity, educational/college, and medical expenses; and modify his obligation to maintain certain life insurance policies. Plaintiff argues the trial court erred in finding that he failed to make a prima facie showing of changed circumstances. We affirm.
The parties were married in May 1981, and two daughters were born of the marriage in 1988 and 1990. The parties were divorced in June 2003. The June 18, 2003 Dual Judgment of Divorce incorporated a property settlement agreement (PSA) requiring plaintiff to pay $4,500 monthly child support, $15,000 monthly alimony, the children's educational and other expenses, and premiums on life insurance policies for the benefit of the children and defendant. The PSA also required plaintiff to fund educational accounts for the children. When the parties entered into the PSA, plaintiff was earning $640,000 in base salary and defendant, Laure Sears, was receiving disability payments for a condition she had suffered from since 1996. On June 11, 2004, the court entered an order granting defendant's motion to enforce the PSA. On August 3, 2004, the parties entered into a consent order permitting defendant to move to California with the children. Plaintiff remarried and moved to the Netherlands.
In June 2005, plaintiff was terminated from his employment. In 2006, he received income from a part-time consulting job, a home renovation business he started that year, and his former employer. Claiming his aggregate income had decreased significantly, he filed a motion on July 26, 2006, seeking to reduce child support, alimony and other obligations required by the PSA. The court denied the motion on October 6, 2006, finding plaintiff failed to prove a good faith effort to find employment in light of evidence that he had declined to accept positions paying $400,000 annually.
During the ensuing year, the parties filed a series of motions and cross-motions, as defendant sought to enforce plaintiff's support obligations and plaintiff sought to reduce those obligations due to his diminished earning capacity. The court ordered the parties to exchange discovery and scheduled a plenary hearing. While the hearing was pending, the parties participated in a settlement conference and mediation. On April 8, 2008, they settled their disputes and entered into a memorandum of understanding (MOU), which was reduced to an order on October 20, 2008.
The October 20, 2008 order required plaintiff to pay: $150,000 to defendant by May 22, 2008, in full and final satisfaction of all child support arrears, alimony arrears, defendant's claim to certain stock, and any other financial obligations owed as of April 30, 2008; monthly alimony of $6,000; weekly child support of $311; the children's activity and college expenses; and the premiums for two life insurance policies to secure his support and alimony obligations. The MOU and order were based in part on $240,000 of annual income imputed to plaintiff, though he was not employed at the time, and $24,000 of annual income imputed to defendant.
Plaintiff did not comply with the order. Defendant filed an order to show cause seeking enforcement. On the return date, January 16, 2009, the court entered judgment against plaintiff for $150,000, to be paid by February 6, 2009. The court also ordered plaintiff's alimony payments to be made through the New Jersey Family Support Payment Center in the form of a wage garnishment. Finally, the court ordered plaintiff to pay defendant by February 6, 2009, $8,098.31 for the children's expenses and $5,686 in counsel fees.
On March 5, 2009, plaintiff filed a motion to modify his support and alimony obligations based on a change in circumstances, and to set aside part of the January 16, 2009 order. He argued that the April 2008 MOU imputed annual income of $240,000, but he had obtained employment with a Dutch corporation for $103,000 per year plus a possible ten percent bonus. He also asserted he had hired an investigator who uncovered proof defendant was no longer disabled. On May 21, 2009, the court denied plaintiff's motion, ordered probation to add $150,000 plus interest to his arrears, and ordered plaintiff to pay an additional $4,000 per month toward his outstanding obligations. The court also ordered that $8,081 be added to plaintiff's arrears for children's expenses; fixed his obligation for current children's expenses at $2,581.80; and fixed child support arrears at $22,218. Finally, the court entered judgment in favor of defendant's law firm for $5,686 plus interest, and ordered plaintiff to pay defendant $5,540 in counsel fees by June 15, 2009.
Following the entry of the May 21, 2009 order, the parties engaged in additional motion practice, including a motion and cross-motion concerning the modification and amendment of the May order. While the motions were pending, on July 6, 2009, plaintiff appealed from the May 21, 2009 order. On July 15, 2009, the trial court entered an order amending the May order so that it could be docketed as a judgment.
On August 11, 2009, the court entered an order arising out of a probation enforcement hearing. The order fixed plaintiff's arrears; required plaintiff to make a lump sum payment and liquidate certain assets; and required plaintiff to make weekly payments to satisfy his support obligations and arrears.
On appeal, plaintiff argues:
THE MAY 21, 2009 ORDER, THE JULY 15, 2009 AMENDED ORDER, AND THE AUGUST 11, 2009 ORDER SHOULD BE REVERSED AS THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S REQUEST TO MODIFY HIS SUPPORT OBLIGATIONS AS PLAINTIFF-APPELLANT HAS DEMONSTRATED A PRIMA FACIE CASE OF CHANGED CIRCUMSTANCES IN ACCORDANCE WITH LEPIS V. LEPIS, 83 N.J. 139(1980).
Plaintiff argues his circumstances have permanently and substantially changed since April 8, 2008, and claims he has been unable to find employment at a salary equal to his MOU imputed income of $240,000, despite sending his resume to thousands of potential employers. Plaintiff also claims that because of financial setbacks and the downturn in the economy, he is unable to pay the $150,000 in arrears he agreed to pay in the MOU. Lastly, he claims defendant's MOU imputed income should be higher based on the findings of the investigator he hired to observe her activities.
The trial court supported its decision denying plaintiff's motion with a written statement of reasons, and concluded that plaintiff had not shown a permanent and substantial change in circumstances since entering into the MOU on April 8, 2008. The court also concluded that defendant was disabled, as determined by the New Jersey Division of Pensions. The court found that the evidence presented by plaintiff concerning defendant's disability, including a videotape, was unpersuasive.
The standard for modifying support post-judgment under Lepis is "changed circumstances." See generally Donnelly v. Donnelly, 405 N.J. Super. 117 (App. Div. 2009) (explaining application of the Lepis requirements). Whether a child support or "alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). "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.'" Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).
A court may reject "requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Lepis, supra, 83 N.J. at 151. A judge is therefore required to reject a request for modification based on circumstances that are merely temporary. See Donnelly, supra, 405 N.J. Super. at 127-28.
Applying these deferential principles, we affirm the denial of plaintiff's motion for modification of the MOU and implementing orders. Plaintiff entered into the MOU on April 8, 2008, and its terms were reduced to an order dated October 20, 2008. Plaintiff filed the motion to modify the MOU and October 2008 order on March 5, 2009, less than one year after the parties entered into the MOU and less than six months after the implementing order. We find no reason to question the discretion exercised by the trial court, particularly in light of the relatively little time that elapsed between the date of the MOU and plaintiff's motion to modify it.
There is, of course, no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation. Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented, which we do not disturb absent an abuse of discretion. [Larbig, supra, 384 N.J. Super. at 23.]
In Larbig, we noted a twenty-month lapse between the parties' signing of a PSA and the motion to modify "strongly suggested defendant's reduced income had not become permanent." Id. at 19. Here, the time lapse is less, and plaintiff's employment status had actually improved. More significantly, the trial court had a thorough understanding of the parties' motion history, financial history, and other circumstances relevant to plaintiff's motion. We conclude that the court did not abuse its discretion in determining that plaintiff had not demonstrated a prima facie case of changed circumstances.
In time the permanency of plaintiff's situation may become apparent. The trial court did not abuse its discretion in determining that such time had not yet come to pass.
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