October 10, 2012
PAUL J. POLLOCK, PLAINTIFF-APPELLANT,
LINDA C. POLLOCK, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1346-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 27, 2012
Before Judges Reisner and Hayden.
In this post-judgment matrimonial matter, plaintiff Paul J. Pollock appeals from the June 24, 2011 Family Part order denying without prejudice his motion to decrease alimony and child support payable to defendant Linda C. Pollack. We affirm.
The record reveals that the parties were married in 1988 and had two children. The parties' final judgment of divorce, dated December 21, 2006, incorporated a Property Settlement Agreement (PSA). Paragraph 12 of the agreement states: "The Husband Shall Pay to the Wife for the support of unemancipated children of the marriage the sum of $75,000 per year." Paragraph 7 stipulates that the "Husband shall pay to the Wife, as alimony, the sum of $125,000 per year."
Paragraph 7(b) of the PSA provides in pertinent part:
The Wife shall be entitled to additional alimony, should the Husband's earned income exceed $600,000, annually. In the event the Husband's earned income is in excess of $600,000 the Wife shall be entitled to receive 20 percent of that amount paid to her by the Husband. Under no circumstances shall the Wife be entitled to share in the Husband's earned income beyond $750,000.
According to plaintiff, he earned about $800,000 per year from before the time of the divorce until November 2010, when his income fell to $400,000. On February 15, 2011, plaintiff filed a motion based on changed circumstances seeking to terminate or modify alimony and child support. Additionally, he requested that the court suspend or modify his obligations pending mediation or schedule a plenary hearing on the issue.
Defendant acknowledged that plaintiff appeared to have suffered an adverse change in circumstances, but argued that his motion was premature as plaintiff could not show the change was more than temporary.
On the return date of the motion, March 11, 2011, the parties entered a Consent Order agreeing to attend mediation with the full costs to be paid by plaintiff. The parties also agreed that if mediation was unsuccessful, the parties would enter into discovery and schedule a plenary hearing in September 2011.
Before mediation commenced, in April 2011, plaintiff obtained a position where his salary was set at $600,000 per year through December 2011. If the business exceeded its fiscal year projection for 2011, he would receive a bonus of $50,000 and would also be eligible for additional bonuses.
The parties attended the mediation session in May 2011, which proved unsuccessful. Shortly thereafter, defendant filed a motion to dismiss plaintiff's February 15, 2011 motion. Defendant contended, based upon plaintiff's new employment, that he could no longer demonstrate a change of circumstances as, under Paragraph 7(b) of the PSA, the threshold for setting alimony was $600,000. Plaintiff filed a cross motion, asking for discovery and for either a plenary hearing or an order compelling mediation or arbitration.
On June 24, 2011, Judge Lisa Perez Friscia denied defendant's request to dismiss the February motion, because that motion had been disposed of by the March 11, 2011 Consent Order. She noted that, Plaintiff has since the previous motion and court order, obtained new employment which has a salary of $600,000 from the start date of April 2011 through December 2011. It is unclear as to Plaintiff's possible bonuses and it is premature to address same. Additionally, the compensation package Plaintiff receives is subject to review at the end of the year. As Plaintiff's compensation has changed again, the Court does not find a warranted change of circumstances justifying a downward modification. The Plaintiff is not precluded from filing in the future should the compensation which is projected for December satisfy a warranted change in circumstances.
Accordingly, the judge denied plaintiff's motion for discovery and a plenary hearing. This appeal followed.
On appeal, plaintiff raises the following contentions for our consideration:
POINT I: THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CONSIDER THE SUBSTANTIAL CHANGE IN THE FINANCIAL CIRCUMSTANCES OF THE PLAINTIFF INCLUDING THE DRAMATIC DECREASE IN THE INCOME OF THE PLAINTIFF OVER A SUSTAINED PERIOD OF TIME COUPLED WITH A DIMINUTION OF HIS ASSETS.
POINT II: THE COURT COMMITTED REVERSIBLE ERROR IN DETERMINING FINDINGS OF FACT BASED UPON CONFLICTING CERTIFICATIONS OF THE PARTIES AND FURTHER SHOULD HAVE ALLOWED THE PLAINTIFF AND DEFENDANT TO ENGAGE IN DISCOVERY AND HAVE HAD THE BENEFIT OF A PLENARY HEARING.
POINT III: THE TRIAL COURT ERRED IN NOT ENFORCING THE TERMS OF THE MARCH 11, 2011 CONSENT ORDER. THE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT CHANGE IN CIRCUMSTANCE WARRANTING THE DISMISSAL OF PLAINTIFF'S AGREED UPON RIGHT TO A PLENARY HEARING.
We review the judge's decision on a motion to reduce child support or alimony for abuse of discretion. See Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). To be entitled to either financial discovery or a plenary hearing, the applicant must make a prima facie showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157-58 (1980). A court may decline to order a requested modification if based on "circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151. Whether alimony or child support should be modified due to changed circumstances is within a Family Part judge's sound discretion. Larbig, supra, 384 N.J. Super. at 21.
There is no brightline rule to distinguish the duration of temporary changed circumstances from those that are long-term. Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (citing Larbig, supra, 384 N.J. Super. at 23)). Rather, the determination of when changed circumstances have persisted long enough to warrant modification is left to the discretion of the court. Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig, supra, 384 N.J. Super. at 23. Each motion to modify support "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Donnelly, supra, 405 N.J. Super. at 127 (quoting Larbig, supra, 384 N.J. Super. at 21). See also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Applying these deferential principles, we affirm the denial of plaintiff's motion for modification of child support and alimony. We have found no reason in the record to question the discretion exercised by the trial judge, especially in light of the fact that plaintiff's salary was subject to augmentation by promised and optional bonuses at the end of the year. We need not reach defendant's claim that the threshold amount for her current alimony and child support is $600,000. We reject plaintiff's argument that he should have been allowed discovery and a hearing as both would have been premature without knowing the 2011 salary, including year end bonuses. As the trial judge noted, plaintiff is free to file a future Lepis application, provided it is properly supported by competent evidence of changed circumstances.
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