On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1201-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy.
We consolidate these appeals which challenge various orders of the Family Part pertaining to post-judgment alimony and child support. In the first appeal, A-4465-09, defendant, Stan Greenberg (Greenberg), appeals Family Part orders entered on February 5 and 11, 2010,*fn1 requiring him to pay plaintiff, Alina Green (Green), $10,000 per month in alimony and $10,000 per month in child support, and setting Greenberg's arrearages for both at $148,000 as of March 1, 2010. In the second appeal, A-0108-10, Greenberg appeals an order entered August 17, 2010, setting his arrearages at $215,770.94, but finding that he only has the ability to pay $7500 per month "toward his [s]pousal [s]upport/[c]hild [s]upport obligation." That monthly obligation was to begin as of August 1, 2010.
In the third appeal, A-0933-11, Green appeals an order entered on September 23, 2011, modifying Greenberg's alimony and child support obligations and requiring him to pay $21,368 per year in alimony, effective January 3, 2011; $235 per week in child support from January 3, 2011, to May 27, 2011; and $18 per week in child support thereafter.
We reverse the orders at issue in the first and second appeals, and remand the matters to the Family Part for discovery, if necessary, and such plenary hearings as may be appropriate. We affirm the order at issue in the third appeal.
We discern the facts from the record.
Greenberg and Green were married and divorced, and married again on March 27, 1999. Two children were born of the marriage. On May 2, 2008, their second marriage was dissolved by a judgment of divorce, which incorporated the terms of a property settlement agreement (PSA) the parties had entered on November 1, 2007. Section II of the PSA, entitled "Alimony and Support of the Wife and Children," stated:
The Husband shall pay to the Wife the sum of $240,000.00 for one year as and for alimony and child support, commencing November 1, 2007, payable in equal monthly payments of $20,000.00 on the first day of each month. The aforesaid payments should be allocated as $10,000.00 in nontaxable alimony and $10,000.00 in child support. Commencing November 1, 2008, the Husband shall pay the Wife no less than $10,000.00 per month, allocated $5,000.00 as nontaxable alimony and $5,000.00 as child support. In the event, however, the Husband earns more than $300,000.00 per year, the Husband shall pay the Wife one-half of any money in excess of said $300,000.00, net of taxes, up to a maximum amount of $20,000.00 per month. The additional sum owed by the Husband shall be retroactive to November 1 of each year, and shall be allocated one-half as nontaxable alimony and one-half as child support.
The PSA also provided that the parties shared joint legal custody of the children and that Green had primary residential custody.
In accordance with his understanding of the PSA, Greenberg paid to Green $20,000 per month from November 1, 2007, and $10,000 per month, of which $5000 was allocated to alimony and $5000 to child support, as of November 1, 2008. In January 2009, however, Greenberg ceased paying the $5000 in child support because the children moved into his home and he had assumed the obligation to pay for the children's private school tuition. The children resided with Greenberg through September 2009, and Greenberg paid their school tuition through Spring 2010.
On November 18, 2009, Green filed a motion to enforce litigant's rights, alleging that Greenberg had, in fact, violated the PSA by failing to continue to pay $20,000 per month after November 1, 2008. On February 5, 2010, following oral argument, the Family Part judge entered the order which is the subject of the first appeal. The judge explained that he "cannot conclude that [Greenberg] has submitted evidence [to support the claim] that [Section II] of the PSA . . . kicks in and automatically lowers" Greenberg's obligation from $20,000 to $10,000 per month. The judge also denied a later motion for reconsideration.
Following our order of July 1, 2010 remanding the matter, the Family Part held an ability to pay hearing over the course of four days and then entered an order on August 17, 2010, which is the subject of the second appeal. The motion judge explained that after considering the testimony, and "acknowledging" Green's lack of discovery, "the [c]court comes to the conclusion and makes factual determinations, at the present time, I believe [Greenberg] has the ability to pay $7,500 per month toward his spousal support and child support obligation." The judge also set arrearages based on the terms of the order of February 5, 2010. Greenberg appealed.
Greenberg thereafter filed a motion before the Family Part for modification of his support obligations, as well as a motion before us to remand to allow consideration of the modification motion. On January 3, 2011, the appeal was temporarily stayed to allow defendant to file a Lepis motion*fn2 to modify his alimony and child support obligations, and to permit the Family Part's consideration of the motion.
Another Family Part judge presided over a plenary hearing which was held over the course of eight days from March 2011 to July 2011. The judge entered an order on September 19, 2011, and thereafter issued an amended order on September 23, 2011, which reduced the amount defendant is obligated to pay in alimony and child support obligations. This order is the subject of the third appeal.
The judge, in a written and well-reasoned opinion, made detailed findings of fact and conclusions of law in support of her order. The judge considered the factors set forth in N.J.S.A. 2A:34-23 and opined, in part:
N.J.S.A. 2A:34-23 sets forth the non-exclusive list of factors a court must consider in making an alimony determination.
1. The Actual Need and Ability of the Parties to Pay
It is uncontroverted that the Defendant was a high wage earner during the marriage, making more than $500,000.00 annually. In 2009, the Defendant's monthly expenses totaled $16,167.00. Since then, his businesses have failed, his bankruptcy petition has been discharged and he is working at a job earning $104,000.00 per year, a reduction in income of over 80%. Likewise, he has downsized his lifestyle. He now reports his monthly expenses to be $3,260.00, a reduction of approximately 80%. While the Defendant has always been a superior wage earner, I am satisfied his earnings have suffered a significant and drastic decrease warranting modification of his alimony obligation.
Given the Defendant's inability to continue to pay the prior alimony award, it is unreasonable for the plaintiff to expect she can maintain the consumptive lifestyle she enjoyed during the marriage.
Currently, the Defendant's gross yearly income is $104,000.00, leaving him after 30% tax withholding with $72,800.00 His bare bones expenses prior to accepting residential custody of one child were $39,432.00. Adding an additional $1,000.00 per month for shelter expenses, his yearly need totals $51,432.00 ...