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Wheeler v. Wheeler

Superior Court of New Jersey, Appellate Division

July 24, 2013

BILLINGS WHEELER, IV, Plaintiff-Respondent,
v.
ANNA WHEELER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-882-05.

Judith L. Rosenthal, attorney for appellant.

Franzblau Dratch, attorneys for respondent (Patrick T. Collins, on the brief).

Before Judges Ashrafi and Guadagno.

PER CURIAM.

Defendant, Anna Wheeler, appeals from portions of the August 26, 2011 order of the Family Part denying her motion to modify alimony and child support, for reimbursement of back taxes and penalties from the 2003 and 2004 tax years, and for counsel fees. We affirm.

I.

The parties were married for twenty-seven years. They did not pay federal income taxes in either 2003 or 2004. As a result, penalties and interest accrued. In October 2005, plaintiff filed for Chapter 7 bankruptcy and was discharged in January 2006.

On January 24, 2007, the parties were divorced pursuant to a judgment of divorce (JOD). There was no property settlement agreement, but in February 2007 the JOD was amended, with the consent of both parties, requiring plaintiff to pay permanent alimony of $4, 166 per month. Although the amended judgment of divorce (AJOD) did not address the parties' respective tax liabilities, [1] it did provide that defendant was not permitted to assert an equitable distribution claim, "save for those asserted in plaintiff's bankruptcy case."

In 2008, the Internal Revenue Service sought to collect back taxes, penalties, and interest due from defendant for the 2003 and 2004 tax years. Defendant notified the bankruptcy trustee of the taxes owed and in January 2009, the trustee made partial payment. The IRS sought payment from defendant for the remaining balance due. Defendant hired counsel and eventually was recognized by the IRS as an "innocent spouse"[2] for the year 2004, which relieved her of the liability for that tax year. Defendant was denied innocent spouse status for 2003, as her application was not filed timely. In December 2010, defendant paid $13, 264.12 in back taxes, penalties and interest to the IRS and roughly double that to her tax counsel in legal fees.

In 2009, plaintiff moved for modification of his support obligations. On December 18, 2009, following a plenary hearing, the Family Part issued an order reducing plaintiff's alimony obligation to $251 per week due to a change in circumstances. No appeal was taken from this order by either party.

In March 2011, defendant brought a motion seeking an increase in alimony and reimbursement from plaintiff for back taxes, interest and penalties she paid to the IRS, and for counsel fees she incurred in connection with disputing taxes owed on plaintiff's 2003 and 2004 income.

Following a hearing on April 8, 2011, the court denied defendant's motion without prejudice, finding she had presented "insufficient information to fairly evaluate this matter" and had failed to present the matter in a timely manner to plaintiff.

Defendant sought reconsideration. On August 26, 2011, following oral argument, the court denied her motion to modify child support and alimony as well as her motion for reimbursement for back taxes, penalties, and counsel fees for the 2003 and 2004 tax years.

Defendant filed a notice of appeal from the August 26, 2011 order and raised the following points:

POINT I
THE STANDARD OF REVIEW.
POINT II
THE LOWER COURT DID NOT CONSIDER, OR FAILED TO APPRECIATE, THE SIGNIFICANCE OF PROBATIVE, COMPETENT EVIDENCE OF WIFE'S CHANGED CIRCUMSTANCES.
POINT III
THE LOWER COURT FAILED TO MAKE THE REQUISITE FINDINGS OF FACT AND CONCLUSIONS OF LAW.
A.THE LOWER COURT FAILED TO MAKE THE REQUISITE FINDINGS AND CONCLUSIONS WITH REGARD TO CHANGED CIRCUMSTANCES.
B.THE LOWER COURT FAILED TO MAKE THE REQUISITE FINDINGS AND CONCLUSIONS WITH REGARD TO "VOLUNTARY UNDEREMPLOYMENT" TO SUPPORT ITS ...

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