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Antoinette Barbanera, F/N/A Antoinette Tipton v. George A. Tipton

September 29, 2011

ANTOINETTE BARBANERA, F/N/A ANTOINETTE TIPTON, PLAINTIFF-RESPONDENT,
v.
GEORGE A. TIPTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-851-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 12, 2011

Before Judges Sabatino and Fasciale.

In this post-divorce judgment matrimonial case, defendant-husband appeals from a June 2, 2010 order denying his motion to reduce alimony. We affirm, but remand for the judge to determine the proper garnishment rate of defendant's arrears.

In 2005, the parties divorced one another after a ten-year marriage and entered into a property settlement agreement (PSA). Pursuant to the PSA, defendant agreed to pay a sliding scale, limited duration alimony for ten years starting at $5,500 per month and declining to $2,500 per month in years nine and ten. When the parties entered into the PSA, defendant earned approximately $90,000, while plaintiff-wife earned approximately $7,000.

Following the divorce, defendant left his job in the textile industry and began working as a salesman, first selling cars and then, more recently, selling furniture. He contends that because his income has declined substantially, his alimony obligation should be reduced. In the alternative, defendant claims that the rate of arrears that the judge required him to pay is excessive, approaching sixty-five percent after taxes. He contends that he is living in a rooming house, in a spartan situation, and depends on sales commissions in a down economy to survive. He contends that he earned less than $30,000 in the year preceding the motion practice.

Plaintiff contends that defendant is underemployed and he has put himself in a poor financial situation through his own doing. She notes that he is over $250,000 in arrears and that he has generally been delinquent with alimony, having only made some modest payments since the divorce was entered. She notes that the limited duration alimony, with a sliding scale, was negotiated specifically to anticipate the parties' future circumstances, and that any adjustment is unwarranted.

After hearing the parties' contentions, the judge denied defendant's motion. In her written statement of reasons, the judge concluded that defendant failed to establish a prima facie case of changed circumstances to warrant a reduction of his support obligation.

On appeal, defendant makes the following arguments in his pro se brief:

1. TRIAL COURT ERRED IN NOT PROPERLY ASSESSING EQUITY AND FAIRNESS SINCE THIS IS THE FIRST PRINCIPLE OF JURISDICTION.

2. COURT DID NOT ACCOUNT FOR RELATIVE FINANCIAL CONDITIONS OF THE PLAINTIFF AND DEFENDANT, PARTICULARLY IN LIGHT OF THE FACT THAT THIS IS SPOUSAL SUPPORT, NOT CHILD SUPPORT.

3. TRIAL COURT ERRED IN DECLINING TO RECOGNIZE HEARING AS AN ABILITY TO PAY HEARING, RATHER THAN SIMPLY A CHANGED CIRCUMSTANCE REQUIRING LOWERED ALIMONY PAYMENTS.

4. TRIAL COURT FAILED TO RECOGNIZE THE PATTERN OF REDUCED INCOME OVER A LONG PERIOD OF TIME PRECEDING THE MARRIAGE'S DISSOLUTION WHEN ASSERTING THAT ...


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