On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1477-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Defendant appeals from the Family Part order compelling him to provide plaintiff with monies earned in counsel fees as payment for alimony, arrears, and money owed in equitable distribution. Defendant contends he was entitled to a plenary hearing on the issues he raised because he presented sufficient evidence of changed circumstances. We disagree and affirm.
Following a thirty-six-year marriage, the parties were divorced by a Final Judgment of Divorce (FJD) entered August 25, 2006. The FJD, in addition to an award of equitable distribution, awarded plaintiff permanent alimony fixed at $9500 per month, based upon the trial court's finding that defendant's annual income at the time was $357,000. Beginning in 2008, plaintiff filed a number of motions to enforce litigant's rights to compel defendant to honor his obligations under the FJD. Each time plaintiff filed a motion, defendant cross-moved, seeking relief that included a reduction in his alimony obligation based upon changed circumstances. In orders dated August 1, 2008 and May 14, 2009, the court granted plaintiff's motions and denied defendant's motions, finding on both occasions that defendant failed to establish changed circumstances justifying the relief that defendant sought from judgment.
The May 14, 2009 order directed defendant to pay plaintiff the equitable distribution owed to her, plus interest, totaling $461,636.01, and included a provision that if defendant failed to pay plaintiff the three years past-due equitable distribution, plaintiff was permitted to "bring a motion for enforcement that includes sanctions ranging from further economic penalties to loss of driver's license to incarceration." The court also awarded plaintiff $4,597.50 in counsel fees.
On appeal, we affirmed, rejecting defendant's argument that changed circumstances warranted the relief he sought, and agreed there were no genuinely disputed issues of material fact to warrant a plenary hearing. Forman v. Frost, No. A-5334-08 (App. Div. January 21, 2011) (slip op. at 2, 8). We specifically found that other than his cancer diagnosis, which condition defendant never argued had increased his cost of living or affected his ability to work, his "arguments in support of a finding of changed circumstances [were] not materially different from those he posed in his previously denied application for a reduction of his alimony obligation in 2008." Id. at 13.
On October 26, 2010, while Forman v. Frost, supra, slip op. 1, was pending before this court, plaintiff filed an order to show cause in the trial court, seeking enforcement of defendant's outstanding equitable distribution award and alimony arrears from counsel fees he was to receive from his law practice's work on a case, Spagnola v. City of Paterson, (Spagnola). Judge Domzalski presided over the motion. Because a stay pending appeal had not been granted, the judge considered the matter. After conducting a telephonic oral argument at which only plaintiff appeared, despite notice to defendant, Judge Domzalski entered an order at its conclusion requiring defendant to escrow all of the proceeds from Spagnola defendant was slated to receive, pending the return date on the order to show cause. The court denied defendant's motion for reconsideration.
Following the court's denial of reconsideration, defendant filed an order to show cause on November 8, 2010, seeking an order permitting him to pay plaintiff $20,000 from the Spagnola settlement, with the remaining monies to be "disbursed to his clients and used to pay business and personal expenses." The trial court conducted oral argument during which defendant admitted that he paid a creditor $41,270.87 from the proceeds received in attorney's fees from Spagnola, notwithstanding the court's earlier order directing him to escrow the counsel fees awarded in connection with the that matter.
Judge Domzalski entered an order on November 9, 2010, in which it determined that for purposes of enforcing the order, the court would treat defendant and his current and past law firms as the same person/entity with respect to the Spagnola monies. Thus, any monies distributed to defendant, Mark B. Frost & Associates, or Frost & Zeff, from Spagnola, would be subject to the order. The order required defendant to provide plaintiff's attorney with proof of his payments to creditors, and to transfer the balance of the proceeds of the Spagnola settlement not paid to creditors, $208,729.13, to plaintiff's attorney, in trust, to be distributed as follows: $20,000 to plaintiff towards defendant's alimony obligation; $4,348.32 to pay for defendant's health insurance; and the balance to remain in trust until defendant provided proof of costs advanced for prosecution and money owed to clients and third-party venders in the Spagnola suit. Once defendant provided the proofs, plaintiff's attorney gave him $175,446.15 from the remainder of the first installment of the Spagnola settlement to pay his clients, third-party vendors, and creditors.
On February 18, 2011, defendant filed a certification in opposition to plaintiff's October 29, 2010 order to show cause. Defendant again certified his inability to pay his outstanding obligations under the FJD. Following oral argument, the court granted plaintiff's request to compel defendant to provide her 100% of his proceeds from Spagnola, with the exception of those funds necessary to pay the plaintiffs from the lawsuit, creditors and third-party vendors. The court also granted plaintiff's request to compel defendant to immediately bring his alimony arrears current, and granted plaintiff's request to enforce defendant's alimony obligations of $9500 per month. The court pointed out that defendant was approximately twelve to fourteen months in arrears. The judge also noted that in a 2010 Statement of Revenue and Expenses included in defendant's certification, he reported a total revenue of $343,543.55 in 2010, a net income of only $93,167.80, approximately $20,000 in auto expenses, and over $1000 in entertainment. Thus, the judge found defendant still derived benefit from his business.
Judge Domzalski spread defendant's obligations to pay plaintiff's attorney's fees, both from the present order as well as from past orders, over a period of ninety days. Defendant was also ordered to provide plaintiff with information on his current and pending cases, as well as information regarding the litigation between him and his former partner, all of which had some bearing on his cash flow. Judge Domzalski explained this information was important for plaintiff to "ascertain the validity" of defendant's proposals, and without such information, the court could ...