On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-600-06B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall, and Alvarez.
In this post-divorce judgment matter, plaintiff Michael Bell, Jr., appeals from a March 7, 2011 order of the Family Part denying his motion to reduce or terminate alimony to defendant Margaret Bell and to discontinue his obligation to maintain a life insurance policy on her behalf. Both parties also appeal that portion of the order awarding defendant $12,000 in counsel fees. We affirm save for the attorney fee feature, which we remand for a recalculation of the amount.
The parties were married on October 6, 1989,and divorced on February 26, 2007. They have one child, who is now emancipated. In their dual judgment of divorce (FJD) with stipulations, the parties, who were both represented by counsel, agreed that support obligations would be based on an annual income of $191,000 for plaintiff and $40,000 for defendant, and thus set plaintiff's permanent spousal support for defendant at $800 per week. The agreement contained a provision that plaintiff could seek to terminate or modify alimony in the event that defendant began cohabiting with another man. Plaintiff also agreed to have a life insurance policy with defendant as the beneficiary, with the benefit starting at $300,000 and decreasing by $50,000 every five years.
Three years after the FJD, on May 18, 2010, plaintiff moved to reduce alimony, terminate alimony arrearages and eliminate the life insurance requirement. The basis for relief was the changed circumstance of his purported reduced income, although in a reply certification to defendant's opposition, he alleged the additional reason of defendant's cohabitation with another man. A four-day plenary hearing on both issues was held, at which the following facts were adduced.
At the time of the divorce, plaintiff worked as a salesman for State
National Training Service (State National), a company owned by his
mother that helped train job-seekers to take civil service exams
through a "home study" course. Prior to State National, plaintiff
worked at National Training Service, which was owned by his father.
Plaintiff reported a total income of $115,954 in 2007.*fn1
His 2008 1040 reports a total income of $111,729.
In approximately July 2008, the Attorney General of New York began investigating State National's business practices. According to plaintiff, in November 2008, he lost his job at State National due to the negative publicity surrounding the investigation. The Bell family, however, continued to operate the same type of business as State National under different names. Thus, in December 2008, DeWaf, Inc., owned by plaintiff's father, was incorporated. DeWaf conducted business as Public Service Pathways and Career Development since the name of State National "was dirtied."
In early 2009, plaintiff began collecting unemployment benefits in the amount of $1,118 every two weeks. Around this time, plaintiff stopped paying alimony and on July 6, 2009, he was incarcerated for support arrearages. He was released upon a $10,000 payment made by his family and thereafter Probation began garnishing his unemployment checks. Plaintiff's 2009 1040 reports a total income of just $31,851.
Despite his termination from State National in November 2008, plaintiff still drove a company car and assisted State National during the New York State investigation. He also continued performing services for the company, including recording a voice message to solicit new students "around a year after the shut down of State National."
Although out of work since November 2008, the earliest documentation of a job search is January 28, 2010, when plaintiff posted his resume on CareerBuilder.com. According to that site, plaintiff applied for sixty-three positions on January 28, 2010, nine positions the next day, and thirty-seven positions on February 1, 2010. There is no documentation of any job searches thereafter. Plaintiff received a few interview requests and invitations to job fairs, however, he did not attend any of the conferences. Plaintiff admitted turning down approximately thirty job offers, and that he was not "looking for a job . . . as eagerly as [he] should have . . . ."
By the time of the plenary hearing in January 2011, plaintiff had remarried and just began working as a salesman for Metro Media Productions, a company owned by his father. According to plaintiff, he currently earns only $600 per week, although no documentation was offered supporting this figure, and his parents supposedly continue to pay his $2,600 monthly rent.
After her divorce, defendant met Robert Worthington, a widower, in September 2007 and shortly thereafter became engaged to him. They each have maintained a separate residence, assets and financial accounts over the years. Although the engagement was eventually called off in September 2010, the two maintain a relationship. In fact, defendant continues to be employed by Worthington as a personal assistant and secretary, earning $500 a week together with health insurance.
Throughout their relationship, defendant borrowed money from Worthington, evidenced in each instance by either a promissory note or mortgage. These loans were occasioned by the need to buyout plaintiff's interest in the marital home and make up for missed alimony payments plaintiff owed defendant. For instance, the first mortgage was for $74,600 on October 7, 2007 to assist defendant in refinancing her home. Borrowings of $201,000 on January 7, 2008 and $3,400 on January 18, 2008 followed. After plaintiff stopped paying alimony, defendant borrowed additional money from Worthington on ...