June 21, 2012
NABIL HAMADE, PLAINTIFF-APPELLANT,
RIMA HAMADE, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-469-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2012
Before Judges Fuentes, Graves, and Koblitz.
Plaintiff Nabil Hamade appeals from a May 27, 2011 order denying without prejudice his motion to terminate or reduce his alimony and child support obligations. He also appeals from a July 22, 2011 order denying his motion for reconsideration. We affirm.
The parties were married in 1984, and three children were born of the marriage. Plaintiff filed for divorce in 2003. Following a twenty-four day trial in Warren County, the parties were divorced on December 14, 2006.*fn1
An amended judgment of divorce (AJOD) was entered on June 12, 2007. The AJOD required plaintiff to pay child support in the amount of $290 per week from March 6, 2009, until the marital home was sold, alimony in the amount of $1231 pending the sale of the marital home, and $500 per month towards the mortgage on the property. The marital residence was to be listed for sale in June 2007, and the net proceeds were to be divided equally between the parties. Upon the sale of the residence, plaintiff is to pay child support in the amount of $281 per week and alimony in the amount of $1110 per week. According to the AJOD, plaintiff's support arrears "were in excess of $28,000" as of December 14, 2006.
On October 2, 2008, the court heard argument on defendant's application to enforce the AJOD and for other relief. Plaintiff "appeared by telephone" because he was residing in Dubai in the United Arab Emirates. Following a "limited plenary hearing," the court entered an order on October 17, 2008, affirming plaintiff's obligations under the AJOD. The order also adjourned plaintiff's motion for a reduction in support until November 13, 2008, and plaintiff was directed "to file and serve an updated Case Information Statement in advance of the November 13, 2008 date."
On November 13, 2008, defendant was present in court with counsel, but the motion judge was unable to reach plaintiff by telephone at the number he provided. Plaintiff also failed to file a case information statement. Consequently, in an order dated January 5, 2009, the court denied plaintiff's application to reduce his support obligations and awarded counsel fees to defendant in the amount of $7960. In a statement of reasons attached to the order, the motion judge stated:
The [c]court finds the plaintiff to have acted in clear bad faith first by absconding to Dubai, and second by repeatedly failing to make himself available at his self-reported phone number in Dubai for court dates, and for contact between himself and defendant's counsel. Plaintiff has essentially made it impossible for the [c]court or defense counsel to contact him in any way. Plaintiff indicated in his last contact with the [c]court that he was starting a business in Dubai. Whatever assets he is using to start this business are hidden from the [c]court, and the [c]court believes the plaintiff to be intentionally thwarting the defendant's attempts to obtain the monies due to her from the parties' divorce.
In a subsequent order dated January 7, 2010, the court found plaintiff in violation of litigant's rights for failing to comply with his support obligations and entered judgment in favor of defendant in the amount of $133,700 for unpaid alimony and child support. The court also stated it could not confirm plaintiff's claim he was "struggling financially" because he failed to file a case information statement.
After venue was transferred from Warren County to Sussex County, plaintiff filed a post-judgment motion seeking, among other things, to discharge his "spousal and child support obligation[s] as well as the arrears." In a supporting certification dated March 17, 2011, plaintiff stated he was assigned to a management position in Dubai by Mars, Inc., in 2006. After his assignment ended in March 2008, he was offered a position in the United States at a lower salary. According to plaintiff, he met with defendant in May 2008 (at the Jefferson Diner) to discuss his plans to start his own business in Dubai, and defendant agreed to support his efforts. Accordingly, plaintiff accepted a retirement package and started "an energy management business" in Dubai. However, defendant certified that his business has not been successful because "[m]ore than half of all construction projects in Dubai have either been put on hold or cancelled" due to a weak economy.
In his March 17, 2011 certification, plaintiff said he had a monthly budget of "approximately $1,200," he lived "with [his] wife in her home," and he was "paying only for bare essentials." Plaintiff asserted that his "only current source of income" was his "Mars retirement of $4,412.21 per month," however, the "entire amount" was "diverted to defendant." Plaintiff stated that in "good faith" he "made great efforts to find employment," and "[s]ince 2008," he "applied to dozens of jobs," "reached out to every contact [he knew] in the Middle East," and posted his resume on job and social media sites. Plaintiff asserted that, while job searching, he "continue[d] to market and grow [his] own business, hoping that one day it will be successful." Plaintiff stated that he had "no way to earn the income [he] was [earning] in 2008 with Mars[,] which was $182,000."
Defendant opposed plaintiff's motion to modify the AJOD, and the matter was heard on May 27, 2011. Following oral argument, the court denied plaintiff's motion without prejudice because it was "procedurally defective." The court found plaintiff: (1) failed to provide "sufficient information" regarding the status of the former marital residence; (2) failed to submit his prior case information statements; (3) failed to include his year-to-date income for 2011; and (4) failed to explain how he was able to pay his current expenses in the amount of $2517 each month.
In June 2011, plaintiff filed a motion for reconsideration, which was denied without prejudice on July 22, 2011. On appeal, plaintiff primarily argues the matter should be remanded for discovery and a plenary hearing. We do not agree.
The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
N.J.S.A. 2A:34-23 allows the court to "make such order as to the alimony or maintenance of the parties, and also as to the care . . . and maintenance of the children . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." The statute further provides that "[o]rders so made may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23(c).
Pursuant to Rule 5:5-4(a), when a motion is brought for the modification of an order or judgment for alimony or child support based on changed circumstances, "the pleading filed in support of the motion shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement." As we have previously noted:
This mandate is not just window dressing.
It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movant in a modification case. This is important because the movant bears the initial burden in such a case under Lepis v. Lepis, 83 N.J. 139, 416 (1980). [(Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991).]
As our Supreme Court stated in Lepis, supra, 83 N.J. at 157, "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." To be "entitled to a hearing on whether a previously-approved support award should be modified, the party moving for the modification 'bears the burden of making a prima facie showing of changed circumstances.'" Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Miller v. Miller, 160 N.J. 408, 420 (1999)). In addition, a prima facie showing of changed circumstances must be made "before a court will order discovery of an ex-spouse's financial status." Lepis, supra, 83 N.J. at 157. To make a prima facie showing, the party seeking modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Ibid.
In the present case, the trial court found that plaintiff's application to terminate or reduce his support obligations was deficient because he failed to submit prior case information statements as required by Rule 5:5-4(a); his current case information statement was incomplete; and he failed to explain how he was meeting his current expenses. The court also found that plaintiff failed to provide documentation to support his claim that he deeded his interest in the former marital residence to defendant. Those findings are amply supported by the record, and we find no error or abuse of discretion by the court.
Plaintiff's remaining arguments are without sufficient merit to warrant any additional discussion. R. 2:11-3(e)(1)(E).