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Axhijaja v. Axhijaja

Superior Court of New Jersey, Appellate Division

July 17, 2013

MURIDIJA AXHIJAJA, Plaintiff-Respondent,
v.
BASHKIM AXHIJAJA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1594-06.

Brause, Brause & Ventrice, attorneys for appellant (Peter Ventrice, on the briefs).

Atkinson & DeBartolo, attorneys for respondent (Matthew R. Abatemarco, on the brief).

Before Judges Axelrad and Fuentes.

PER CURIAM

Defendant Bashkim Axhijaja and plaintiff Muridija Axhijaja were married in July 1980 and divorced in March 2008. They had three children, who are now all emancipated. The parties reached an agreement in their divorce action through which they resolved all of the traditional issues associated with marital dissolution. This "divorce settlement agreement" (DSA) was incorporated in the final dual judgment of divorce (JOD) entered by the Family Part on March 18, 2008. At issue here is the part of the DSA that obligates defendant to pay plaintiff permanent alimony in the amount of $750 per week.

On May 18, 2012, defendant moved before the Family Part, seeking to modify or terminate his alimony support obligation to plaintiff. He argued that, under the specific terms of the DSA, he was entitled to this relief or, alternatively, had met his burden of showing a prima facie case of changed circumstances warranting an evidentiary hearing. Plaintiff opposed defendant's motion and filed a cross-motion seeking an award of counsel fees and an order from the Family Part permitting her to contact defendant's life insurance carrier to verify that a policy listing her as beneficiary remained in effect as provided in the DSA and incorporated by reference in the JOD. Plaintiff also sought the right to obtain an ex parte warrant for defendant's arrest in the event he failed to comply with any relief awarded by the Family Part for more than fourteen days of its due date.

After considering the arguments of counsel and the documents submitted in support thereof, the Family Part denied defendant's motion and granted in part plaintiff's cross-motion by limiting the award of counsel fees she requested and directing defendant to provide plaintiff with confirmation that the life insurance coverage provided in the DSA remained in effect. The Family Part denied plaintiff's application to seek an ex parte warrant for defendant's arrest as a means of enforcing its order.

Defendant now appeals, arguing that the Family Part misinterpreted the DSA and erroneously denied his right to modify or terminate his alimony obligation. Alternatively, defendant argues that he met his burden of establishing a prima facie case of changed circumstances, entitling him to an evidentiary hearing. We disagree and affirm.

We will limit our factual recitation to address the discrete issues raised by defendant on appeal. The section of the DSA addressing alimony reads, in pertinent part, as follows:

4. For purposes of the alimony calculations, the Husband's averaged earnings of $120, 000 per year have been used, and the Wife has been imputed $20, 800, which figures the parties have agreed to as fair.
5. The Husband shall pay permanent alimony to the Wife in the amount of $750.00 per week through the New Jersey Family Support Payment Center by income withholding effective the first day of April, 2008. He shall pay this alimony to the Wife until the death of either party, the remarriage of the Wife, or the Wife ...

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