June 8, 2012
HENRY J. LEINGANG, PLAINTIFF-APPELLANT,
JANE E. LEINGANG, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-0259-96. Henry J.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2012
Before Judges Parrillo and Alvarez.
Plaintiff Henry J. Leingang, pro se, appeals from an April 15, 2011 order denying his motion to: (a) release funds held in his retirement account with Smith Barney; (b) quash a writ of execution to that account; (c) terminate his life insurance obligation to defendant Jane E. Leingang; (d) stay enforcement of orders entered May 2010 and August 2010; and (e) terminate his alimony and medical insurance obligations to defendant.
Plaintiff also appeals the relief the order granted to defendant: (a) compelling Smith Barney to release funds, on a prorated basis, as to individual investments in the account, to satisfy $91,311.46 in arrears, thereby satisfying a writ of execution previously issued for that purpose; (b) compelling Smith Barney to satisfy any future turnover orders also on a prorata basis as to individual investments; (c) compelling Smith Barney to continue to "freeze" plaintiff's accounts and holdings until further order of the court; and (d) awarding $2165 in counsel fees.
Plaintiff also seems to be requesting that we "reconsider" prior 2010 orders entered on May 18 and August 3. Since plaintiff did not file a timely notice of appeal as to these orders and proffers no legal basis for us to now consider them out of time, we decline to do so. We affirm the April 15, 2011 order for the reasons stated by the Family Part judge with the following comments.
Plaintiff's efforts to reduce his 1996 alimony obligation commenced in 2003, when he filed his first motion for downward modification. The facts and circumstances we would ordinarily reiterate have been extensively detailed in the two prior unpublished opinions issued as a result of plaintiff's earlier appeals. See Leingang v. Leingang, Nos. A-0307-05 and A-1425-05 (App. Div. Jan. 3, 2007), and Leingang v. Leingang, No. A-0594-03 (App. Div. Oct. 22, 2004). Suffice it to say that plaintiff's alimony was substantially reduced on May 18, 2010, from $11,833 per month to $6500 per month, inclusive of medical and dental insurance. The order required plaintiff to actually pay $8000 per month, the $1500 difference being allocated towards plaintiff's outstanding arrears.
Plaintiff stopped making payments in 2005. Only by obtaining access to plaintiff's Smith Barney retirement account has defendant been able to collect alimony due to her. Plaintiff is a self-employed California resident.
In rendering his decision from the bench, the trial judge said:
The [c]court after holding -- the Honorable Ann R. Bartlett, after holding a plenary hearing that took place over the course of . . . 5 days in 2009, entered an order on May 18, 2010, clearly outlining the plaintiff's obligations by virtue of a remand that occurred from the Appellate Division regarding alimony. The plaintiff asks me to accept the fact that he has never been served with a copy of this order and based on the evidence before me, I do not accept that representation.
As far as the judgment that this
[c]court entered on January 7, 2011, it was a writ of execution to levy on the plaintiff's retirement funds to pay the defendant the support that he has not paid her in quite some time. By all accounts, including the plaintiff's, he has not paid her a dime of the support that has been ordered by this
[c]court. The plaintiff's application . . . suffer[s] from two things, number one, his historic lack of credibility which he asks me to discard. He asks me to ignore very substantial findings that Judge Bartlett made finding him to be utterly without credibility. That is a difficult proposition to make in light of the fact that the plaintiff has not appealed or sought reconsideration of Judge Bartlett's order for . . . what is now almost going to be a year.
So, I cannot do that . . . .
I do not find that he has established a change of circumstances. If anything, the documents he provided to me which he attempted as much as possible today to provide clarity, and I certainly appreciate that, ha[ve] not left me with any more clarity. The plaintiff tells me and when I invited him to suggest the lifestyle figure, that his lifestyle is $180,000 a year, $15,000 a month. That's net. In order to gross an income to meet those expenses, that would clearly put the plaintiff in a position where he would be able to pay his wife the alimony. So, that doesn't demonstrate a change of circumstances in this [c]court's mind.
The plaintiff's argument that he's not taking all of the vacations he used to take, but is still taking vacations, the fact that he is not a member of all the clubs that he used to be a member of, but is still a member of a country club, the fact that he's selling luxury items, Porsches, the fact that he still has them to sell them, the fact that he hasn't paid his wife even if one were to assume that Judge Bartlett's conclusions that the plaintiff engaged in a fraud by pursuing the action in California were untrue, doesn't give me any clarity, let alone any comfort as to whether or not a change of circumstances has occurred.
Being in the condition that the plaintiff is in right now, the answer that the [c]court would have thought would have been the case would have been that he had taken no vacations, that he had long since cashed in his bond on his country club and is no longer golfing or even doing what country club members do. That he had long since had the Porsche either seized from him or sold it, and the fact that he -- assuming the California action to be true, has not paid his wife anything doesn't necessarily mean that what's good for her is good for the defendant that's before this [c]court. That is not the intent of the law. That is not the intent of the Appellate Division on its remand, and that is not the intent of Judge Bartlett's very reasoned decision that she made almost a year ago.
. . . The parties are . . . oblig[ed] to file accurate case information statements and accurate certifications -- are to provide the [c]court with the reliable, substantial and credible material . . . with which to make a decision and I . . . don't have that clarity and that clarity is further clouded if not utterly obliterated by the fact that . . . Judge Bartlett made some pretty substantial and very onerous assertions against the plaintiff and his credibility. I've quoted that at length and I'll repeat it here, "[p]laintiff's sense of entitlement is so out of proportion to the reality of his finances that the [c]court finds him to be utterly incredible." He was very reluctant to give revealing and damaging answers. He faltered noticeably when giving answers about the California child support order, answers that turned out to be inaccurate or lacking in significant part. He has attempted to put assets beyond the [c]court's view and this [c]court's reach and has tied up his income in a California court obtained on false pretenses. The
[c]court finds that he has not only attempted to make himself judgment proof, but he has willingly -- and willing to knowingly mislead the [c]court while under oath. Consequently, the [c]court has no confidence in his ability to present [a] reliable and  reasonable picture of his finances.
. . . The case information statement that the plaintiff filed does [nothing] to provide me with a clear understanding that his circumstances have changed. If anything, it continues the shell game that Judge Bartlett described in her decision.
In a supplemental written statement of reasons, the trial judge made detailed and comprehensive findings of fact, including the following:
Plaintiff certifies, but provides no objective proof, that he is actively pursuing full time employment. . . .
Plaintiff's current Case Information Statement indicates that he earned $270,300 gross in 2009. But it has no information on it regarding his 2010 income. Plaintiff's Case Information Statement also indicates that he incurs $41,221 per month, or $494,652 per year, in expenses.
Plaintiff raises the following points for our consideration:
LOWER COURT IGNORED EVIDENCE AND PLAINTIFF DEMONSTRATED PRIMA FACIE SHOWING OF CHANGED CIRCU[MS]TANCE AND INABILITY TO SUPPORT HIMSELF THE LOWER COURT IGNORED EVIDENCE OF DENIAL OF DUE PROCESS THE LOWER COURT TAKES EVIDENCE OUT OF CONTEXT TO DRAW ERRONEOUS CONCLUSIONS THE LOWER COURT ABUSES ITS DISCRETION IN THE ARDUOUS PROCESS AND PROVES SYSTEMATIC BIAS AGAINST THE PLAINTIFF "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980). We do not disturb the trial court's determination of changed circumstances "absent an abuse of discretion." Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). And we do "not disturb the 'factual findings and legal conclusions of the trial judge unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Plaintiff's first contention on appeal is that he demonstrated a prima facie case of changed circumstances. We do not agree. It was plaintiff's obligation to document, in a credible fashion, changed circumstances since his alimony payments were modified on May 18, 2010. See Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009) (stating that changes in circumstances are evaluated from the time of the last modification).
By way of comparison, we note that plaintiff's 2005 motion for modification included income tax returns, "a list of companies and search firms plaintiff contacted before obtaining his present employment," and other supporting documents. Leingang, Nos. A-0307-05 and A-1425-05, supra, slip op. at 8-9. In his 2011 application, plaintiff included only 1040s for 2009, reflecting an adjusted gross income of $368,053, and earlier years. No tax information for 2010 and 2011 was included, nor corroboration of job searches despite plaintiff's claim that he was unemployed.
We view plaintiff's assertion that he cannot be expected to prove a negative, namely, that he has no income, with some skepticism. We are also mindful that a temporary change in income "'should be viewed more expansively when urged by a self-employed obligor,' as here, who is 'in a better position to present an unrealistic picture of his or her actual income than a W-2 earner.'" Donnelly, supra, 405 N.J. Super. at 128-29 (quoting Larbig, supra, 384 N.J. Super. at 23). Indeed, the trial court was troubled by this complete lack of supporting evidence or corroborating documents, and reasonably relied on the absence of such proofs in rendering its decision.
The court found plaintiff's statement of expenses to be incredible in light of plaintiff's claimed lack of income. "[U]nsupported certifications . . . [are] not sufficient to warrant either an order in [movant's] favor or a hearing to resolve a factual dispute. . . . [T]he applicant . . . has the threshold burden to establish a prima facie case to obtain a hearing on a motion for relief from the terms of an agreement." Dworkin v. Dworkin, 217 N.J. Super. 518, 525 (App. Div. 1987).
Furthermore, plaintiff's 2011 Case Information Statement indicates his 2009 gross income was $270,330, while on his 2009 income tax return he reported total income of $474,587 and an adjusted gross income of $368,053. Despite his assertion that his current wife owns and has had sole responsibility for the mortgage on their home since the separation in 2007, plaintiff deducted real estate taxes and home mortgage interest on his 2009 returns.
Nor did plaintiff account for the value of his separate property as per the California separation decree: ThinkLift, Inc., Bechtel 401K plan, First Allied IRA, and the Bernstein SEP IRA. He simply claims he has "no assets left to liquidate." Yet as the judge observed: "Plaintiff stated that he withdrew $180,000 from his IRA despite failing to produce a 1099 demonstrating his claim." Plaintiff simply failed to present an adequate paper trail of the disposition of his assets.
The judge refused to release the Smith Barney retirement account to plaintiff. Since it is a known asset from which plaintiff's overdue obligation can be satisfied, accessing the account for defendant's benefit is not error. Plaintiff provides us with no fact or law that makes that decision unjust, particularly in light of his failure to pay since 2005.
Similarly, the court also refused to vacate the requirement that plaintiff maintain life insurance and pay medical insurance on behalf of defendant. We reiterate, plaintiff did not establish a prima facie case of changed circumstances and, in any event, the orders he challenges on this point were issued May 18, 2010, August 3, 2010, and October 8, 2010.
Plaintiff contends that the fact he was not able to listen to the Family Part judge render her decision on May 18, 2010 was a violation of due process. Plaintiff was provided with an email notice advising him of the date the decision would be announced in court. It was a proceeding at which the trial judge merely created a record of his analysis of the facts and legal issues. And Rule 1:6-2(f) only requires that where the court "intends to place its findings on the record at a later date . . . [it must] give all parties one day's notice . . . of the time and place it shall do so." Here, that rule requirement was met. In any event, he cannot be heard to challenge the 2010 order out of time.
In our view, the trial judge who issued the April 15, 2011 order did not "take evidence out of context[,]" "abuse [his] discretion[,]" or "prove systematic bias against the plaintiff[.]" We are not inclined to disturb his factual findings and conclusions of law because they are supported by the "competent, relevant and reasonably credible evidence." See Cesare, supra, 154 N.J. at 412.
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