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Susan Plocharczyk v. andrew Plocharczyk

November 19, 2012

SUSAN PLOCHARCZYK, PLAINTIFF-RESPONDENT,
v.
ANDREW PLOCHARCZYK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0092-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2012

Before Judges Harris and Hoffman.

In this post-judgment matrimonial matter, defendant Andrew Plocharczyk, appeals from a September 9, 2011 order of the Family Part denying his motion to reduce his alimony and child support obligations. Plaintiff argues the motion judge erred in denying his motion, and in failing to schedule a plenary hearing. For the reasons that follow, we reject these arguments and affirm.

I.

Plaintiff and defendant married in 1986 and divorced in 2008. They have two daughters together, one born in 1988, who is emancipated, and the other born in 1997, who resides with plaintiff.

Following a five-day trial, the parties were divorced on March 6, 2008, with the trial court ordering defendant to pay plaintiff permanent alimony in the amount of $600 per week and child support in the amount $324 per week. Defendant appealed and we affirmed, finding no basis to interfere with the trial judge's rulings. Plocharczyk v. Plocharczyk, No. A-3749-07 (App. Div. May 13, 2009). We noted, the trial judge's "decision is supported by the trial evidence and is entirely consistent with applicable law." Id. at 5.*fn1

For purposes of context, we set forth the principal findings and conclusions of the judge following the divorce trial, as summarized in our previous opinion:

During the marriage, defendant provided the primary financial support for the family, which he earned by operating two restaurants. He ran the restaurants as cash businesses. The family enjoyed an upper middle-class lifestyle and paid cash for most of their major expenditures. They were able to acquire two houses, paid for extensive renovations, bought a time-share in Mexico, and accumulated substantial savings. They were also able to spend considerable sums on their daughter's participation in pageants.

The judge began his opinion by setting forth in detail his conclusions that plaintiff gave straightforward and credible testimony, while defendant's testimony was evasive and incredible. Those credibility determinations in turn were a significant factor in the judge's decisions regarding the parties' finances. Based on the reports of financial experts, and on credibility determinations, the judge found that defendant's income was considerably higher than that reported on his tax returns. This conclusion was also supported by defendant's settlement with the State Division of Taxation, in which he stipulated to a much higher annual income than he had reported on his returns. Based on this evidence, the judge imputed income of $170,000 per year to defendant.

Additionally, the judge concluded that defendant had no good-faith basis for selling one of his two restaurants during the pending divorce case, despite a court order prohibiting the parties from dissipating assets. The judge found that although defendant owed $70,000 in back taxes, he had other readily-available sources of funds to pay the taxes and had no need to sell the restaurant. Judge Haas also credited plaintiff's financial expert, who opined that the sale was not an arms-length transaction. The judge further found that defendant either had obtained, or could readily obtain, employment at another restaurant to replace any income lost as a result of the sale. Accordingly, the judge declined to reduce his calculation of defendant's annual income because of the sale. [Id. at 2-3 (footnote omitted).]

The month after we issued our opinion affirming the trial judge's rulings, defendant filed a motion to reduce his alimony and child support. Before the motion was decided, the parties entered into a consent order on July 21, 2009, wherein plaintiff agreed to a reduction in alimony from $600 to $400 per week and a reduction in child support from $324 to $250 per week.*fn2 She also agreed to accept a lump sum payment of $25,000 in full satisfaction of a $59,352.30 judgment the trial court had entered in her favor against defendant one year earlier. The order further provided that defendant would continue to pay $50 per week towards his arrearages, as well as a lump sum payment of $5,000 towards his arrearages in September 2009.

Two years later, on August 1, 2011, defendant filed another motion to reduce both his alimony and child support obligations. In support of the motion, defendant submitted a four page certification, a family part case information statement (CIS), copies of the state and federal tax returns filed for himself and his business for 2010, and a pay stub from June 19, 2011. He also provided reports from his doctors regarding ...


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