On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0086-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Koblitz.
The parties were married on June 15, 1983. Their judgment of divorce, which incorporated a property settlement agreement (PSA), was entered on June 12, 2003. No children were born of the marriage. Defendant Albert Plessinger appeals from two orders dated June 24, 2011. One order denied his application to modify his alimony and life insurance obligations based on changed circumstances or, in the alternative, to schedule a plenary hearing; the second order granted a motion by plaintiff Freda Diggs to enforce litigant's rights. Defendant also appeals from judgments entered against him for unpaid support arrears on July 13, 2011, and July 15, 2011. We reverse and remand for further proceedings.
The parties' PSA requires defendant to pay permanent alimony "in the amount of $135,000 per year, by way of equal monthly payments in the amount of $11,250 to be made on the first day of each month, commencing June 1, 2003, and continuing each month thereafter." As noted in the PSA, the alimony figure was based on defendant's gross income of "approximately $400,000 per annum" and an imputed income to plaintiff of $35,000 per annum. To secure defendant's alimony obligation, the parties further agreed as follows:
Husband shall maintain at least $413,000 worth of life insurance coverage as supplied through his employment, insuring his life, for the benefit of Wife, so long as he has an alimony obligation to her. In the event husband's employment no longer provides him with the aforementioned level of life insurance coverage, then husband shall pledge other assets, sufficient to address his life insurance obligation.
In May 2010, defendant filed a motion to modify or terminate his alimony and life insurance obligations. In a supporting certification, defendant stated he had back surgery in 1975, "two additional surgical procedures" in 1990 when his back pain returned, and "a recurrence of serious back pain" in 2004. According to defendant, he accepted a voluntary early retirement package from Honeywell in 2004, and he moved from New Jersey to Arizona with the intention of "getting the rest [his] physicians were recommending and resuming [his] career in a warmer climate." Defendant submitted various medical reports to substantiate his medical problems, and he attached copies of his 2008 and 2009 tax returns to his case information statement.
Defendant certified he began searching for a job in 2007, and he "applied for more than 300 employment positions" without "so much as a first interview." Defendant also stated that his only income, in the amount of $3,913 per month, was derived from his portion of his pension, which had been equitably distributed. In addition, defendant claimed he "exhausted all savings and retirement assets," and he had "no other assets to liquidate to remain current on [his] obligation."
Plaintiff opposed defendant's motion. In an oral decision on June 11, 2010, the court denied the motion because defendant voluntarily discontinued "a significant employment," and he did not demonstrate a sufficient change in circumstances to modify or terminate alimony. Nevertheless, the court ruled there would be "a forbearance of enforcement" of defendant's alimony payment for a period of sixty days to afford defendant an opportunity "to obtain gainful employment."
In August 2010, defendant accepted a position as Manager of Information Technology Operations with AAA Northern California, Nevada, and Utah. Defendant's starting salary was $120,000 per year. However, he was promoted in March 2011, and his salary increased to $160,000 per year. In addition, he received a car allowance of $850 per month. After he obtained employment, defendant increased the amount of alimony he was paying but did not pay the full amount required by the PSA.
On May 16, 2011, plaintiff filed a motion to hold defendant in violation of litigant's rights for "willful noncompliance with his support obligation." In her supporting certification, plaintiff stated "defendant's arrears total $119,750.00 and he has made it clear that he has no intentions of complying with [the PSA]." Plaintiff stated defendant was paying less than half of his alimony obligation, and she also alleged defendant's "new found employment" confirmed that his prior application to modify or reduce his support obligation was filed in bad faith:
There is no excuse for defendant's continued non-compliance, especially considering the fact that shortly after this Court's 2010 orders directing defendant to continue payment of his alimony obligation in the amount of $11,250.00 per month, defendant immediately obtained a "consulting job." Yet, defendant's new found employment speaks volumes as to the bad faith nature and misrepresentations advanced by defendant in support of his prior application for modification/termination of his support obligation. In short, defendant's financial setting is nothing more than [a] self-created sham to try to avoid/reduce his continued payment of support to me. [(Emphasis in original.)]
Defendant opposed plaintiff's enforcement motion and filed a cross-motion to modify his alimony and life insurance obligations retroactive to August 1, 2010, based upon a change in circumstances. In the alternative, defendant asked the court to schedule a plenary hearing to determine the issue. In his supporting certification, defendant stated plaintiff was "well aware" of the back pain and discomfort that ultimately led to his retirement because his back problems "plagued [him] most of [his] adult life." Plaintiff also stated his sole source of income was from his employment ...