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Wheeler v. Wheeler

Superior Court of New Jersey, Appellate Division

August 1, 2013

ROBERT L. WHEELER, Robert-Appellant,
v.
ELLEN A. WHEELER, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 10, 2012

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1900-03.

Dennigan Cahill, P.C., attorneys for appellant (Elizabeth A. Smith, of counsel and on the briefs).

Howard R. Rabin, attorney for respondent.

Before Judges Parrillo and Maven.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Robert Wheeler (Robert) appeals from the November 4, 2011 Family Part order denying his motion to reduce alimony. We conclude that Robert failed to provide the trial court with sufficient evidence of a significant changed circumstance, pursuant to Lepis v. Lepis, 83 N.J. 139, 152 (1980). Accordingly, we affirm.

In April 2011, we rendered opinions on two appeals filed by Robert in matters substantially similar to this instant appeal. In one opinion, we upheld the trial court's denial of Robert's request to terminate his alimony and life insurance obligations, [1]and, in the other opinion, we upheld the trial court's denial of his subsequent motions for reconsideration of the denied motion.[2]In each opinion, we concluded that the motion judge did not abuse her discretion in denying Robert's motions for modification based on (1) Robert's failure to provide a sufficient factual basis to establish changed circumstances; and (2) the alimony obligation's intended purpose as recompense for Robert's wrongful depletion of marital assets.

The background facts and procedural history have been set forth at length in our prior opinions. Because the same parties are involved here, we recount only those facts that are necessary and relevant to this appeal. The parties were married on August 14, 1976, and divorced in March 2004. Pursuant to the Final Judgment of Divorce and separate Consent Agreement, both filed on March 4, 2004, the parties engaged in binding arbitration to resolve alimony and equitable distribution matters. On August 22, 2005, the arbitrator awarded, among other things, permanent alimony to Ellen Wheeler (Ellen) in the amount of $250 per week, as recompense for Robert's depletion of $89, 534 from the marital estate as well as for her future maintenance. Robert was also required to maintain a life insurance policy in the amount of $250, 000 naming Ellen as the beneficiary.

The parties each have filed numerous post-judgment motions, with Ellen seeking to enforce alimony and collect on arrears, and Robert seeking to reduce or terminate his alimony and life insurance obligations. Robert's applications have been denied with the court finding that he had not established a prima facie showing of changed circumstance. As stated, we affirmed the two most recent 2009 trial court orders in April 2011.

Robert filed the instant motion for modification of alimony and reduction of life insurance on October 4, 2011, again providing a recitation of his financial circumstances and asserting a further downward reduction in his income. Ellen filed a cross-motion to enforce litigant's rights. In support of his application, Robert submitted a certification and documentation of his jobs and salary, a list of his employment search efforts for the years since the divorce and, particularly, since his last 2009 modification application, as well as tax returns.

On November 4, 2011, following oral argument, the judge rendered an oral opinion denying Robert's motion. The judge found that Robert had not met the burden of demonstrating a prima facie case of changed circumstances. First, the court determined that Robert's proffered employment history demonstrated "his ability to continuously find employment . . . that ultimately result[ed] more times than not in his decision to leave and find supplemental employment, with each move by and large a diminution in the income that he obtained." Further, notwithstanding the list of more than thirty job searches conducted over a period of six years, the court rejected Robert's general "unsupported" statements regarding his earning capacity and found that he failed to provide a basis for the court to conclude that his reduced employability was permanent. The court also found that Robert's submitted tax returns were unreliable, as they were unsigned, undated, self-reported and failed to have the appropriate W-2 form attached to them.

On appeal, Robert maintains that the trial court erred by concluding that he voluntarily and willfully changed employment, which resulted in his diminished income. He argues that the judge "fail[ed] to consider the marketplace, Robert's age, the failing economy or Robert's true employment prospects under the ...


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