July 17, 2013
MURIDIJA AXHIJAJA, Plaintiff-Respondent,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 cohabitating in a supporting relationship as set forth in the case law of New Jersey.
6. The Husband's earning are solely derived from his business All-Ports International, Inc.[, ] which has been evaluated by a forensic accounting firm Maggio and Co. The value of the business and the Husband's cash from the business are dependent on his retaining the two major customers, Kusha[, ] Inc.[, ] and Innovation Bargains, Inc., who provide 55% of the annual gross revenue to All-Ports International, Inc.[, ] according to the valuation of the business completed by Maggio and Company, Inc.[, ] dated August 20, 2007, page 8. In the event All-Ports International, Inc.[, ] should involuntarily lose either of these two customers who provide a substantial amount of business, such an event shall be deemed a change of circumstances so that Husband shall notify the wife of this event and he shall request a modification of the alimony amount. Under these circumstances, both parties shall cooperate in providing the necessary proofs of their earnings from all sources in an effort to resolve the alimony modification issue without the necessity of bringing the matter to court. If the parties cannot agree and a motion is submitted to court, the Husband shall provide proof of the involuntary loss to the court with his motion.
7. The Wife may earn up to $40, 000 gross per year from all sources, with the exception of alimony payments, without being subject to any reduction in alimony provided that the Husband's earnings remain substantially the same as his earnings applied in the agreement.
The DSA also included a section denoted "LIFE INSURANCE, " which obligated defendant to maintain life insurance in the total amount of $150, 000, naming plaintiff as beneficiary for "as long as he has a support obligation for [sic] her." This section also contains a handwritten amendment obligating defendant to provide plaintiff with annual proof of coverage.
Defendant claimed that, in 2008, he suffered "an adverse change in his economic circumstances" in his warehouse and trucking business, All-Ports International, Inc. (All-Ports). Starting in 2008, Innovations Bargains, Inc. (Innovations), failed to make timely payments of invoices, accumulating an arrears exceeding $200, 000 by 2009. Innovations was one of two specifically named "major customers" in paragraph 6 of the Alimony section in the DSA. Defendant claimed that he aggressively worked to secure the collection of this debt by refusing to waive his warehouse lien on goods owned by Innovations and retaining one of New Jersey's largest law firms to assist him in negotiating a payment schedule with Innovations. Although Innovations paid all arrears over a one-year period, it decided to terminate its business relationship with defendant. Thus, according to defendant, the loss of Innovations constituted an involuntary loss of one of the two major clients referred to in paragraph 6 of the DSA.
We pause from our recitation of the facts to note that, under paragraph 6 of the DSA, defendant was required to notify plaintiff in the event All-Ports involuntarily lost Innovations as a customer. At that point, defendant was also required to "request a modification of the alimony amount." The record shows, however, that when defendant lost Innovations as a customer in 2009, he did not notify plaintiff nor request a reduction in alimony.
In 2010, defendant sold All-Ports to Taylored Freight Services, L.L.C. (Taylored), a division of Taylored Business Holdings, Inc., a company defendant describes as "a larger company which performed the same services as All Ports International, Inc., with its main office in Edison, New Jersey." Although defendant averred that Taylored acquired from All-Ports its "book of business, " equipment, and all of its customers, including Kusha, Inc., the second major customer listed in paragraph 6 of the DSA, defendant did not disclose the price paid by Taylored for his business. We do know, however, that part of the deal included defendant working for Taylored as a vice-president at an annual salary of $175, 000, a $55, 000 increase from the salary defendant reported in paragraph 6 of the DSA. Taylored also hired the parties' middle child as a warehouse manager.
Due to economic downturns, defendant's salary at Taylored was reduced to $150, 000 in November 2010, and to $120, 000 in February 2011. Defendant was eventually terminated from Taylored on March 31, 2012. In his certification submitted to the Family Part in support of his motion, defendant averred that he did not receive any severance compensation from Taylored at the time of separation. With respect to finding new employment, defendant certified as follows:
I have contacted friends and competitors in the warehouse/transportation/distribution business, and there are no job prospects available. In the warehouse/trucking business the personal referral and a strong trust factor are very important because of the potential for theft of the vehicles and inventory while in transit or stored in the warehouse facility.
In response, plaintiff notes that defendant voluntarily sold his business, presumably received significant funds from the net proceeds of the sale, and obtained a salary increase, all as recently as 2012. Defendant did not submit a copy of his 2011 tax return to the Family Part. Plaintiff emphasizes that the 2010 tax return, the only tax return submitted by defendant to the Family Part, showed him reporting wages in the amount of $280, 654, capital gains of $257, 541, and partnership income of $212, 466. This amounted to a total reported income of $750, 661 for 2010.
Based on this record, the Family Part denied defendant's motion for a reduction or termination of alimony. The motion judge noted, with understandable consternation in our view, that after defendant lost his employment in April 2012, "he summarily and unilaterally . . . stopped paying his support obligation without any [c]ourt order [and] without making any motion." The motion judge further found that defendant "presented such a woefully incomplete financial package that [the judge] [was] not able to determine whether he is able to make his obligation."
In this light, the motion judge found that defendant was not entitled to an evidentiary hearing, because he "failed to make a showing of permanent changed circumstances, " as required by the standards established by the Supreme Court in Lepis v. Lepis, 83 N.J. 139, 157 (1980). Relying on our decision in Larbig v. Larbig, 384 N.J.Super. 17, 23-24 (App. Div. 2006), the motion judge also found that defendant, a fifty-one-year-old, able-bodied man with a great deal of experience in his chosen field of employment, had not attempted "to ameliorate his situation" nor shown that his financial condition at the time he filed his motion was permanent.
Finally, the motion judge found defendant's self-help acts, as exemplified in his decision to stop paying alimony without court authorization, coupled with the lack of substantive merit in the motion itself, indicated that he had filed his motion in bad faith. The Family Part awarded plaintiff limited counsel fees and ordered defendant to provide plaintiff verification of life insurance coverage as required under the DSA.
Our standard of review of the Family Part's decision here compels that we affirm. As we noted in Larbig,
[t]here is, of course, no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation. Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented, which we do not disturb absent an abuse of discretion . . . Neither compulsory discovery nor a plenary hearing is required until a movant provides sufficient evidence of a material changed circumstance.
[348 N.J.Super. at 23 (citing Lepis, supra, 83 N.J. at 157).]
Acknowledging the deference we owe to the Family Part, especially in matters involving the modification or termination of alimony, Innes v. Innes, 117 N.J. 496, 504 (1990), we discern no legal basis to interfere with the motion judge's decision. The record also supports the Family Part's decision to award plaintiff a measure of counsel fees. See J.E.V. v. K.V., 426 N.J.Super. 475, 493 (App. Div. 2012). Defendant's other arguments lack sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the motion judge. Affirmed.