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Burns v. Burns

Superior Court of New Jersey, Appellate Division

August 30, 2013

DONNA R. BURNS, Plaintiff-Respondent,
v.
JOHN G. BURNS, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically November 9, 2012

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1127-06B.

G. John Germann argued the cause for appellant (DeNoia & Tambasco, L.L.C., attorneys (Mr. Germann, on the briefs).

Noel S. Tonneman argued the cause for respondent (Tonneman, Vuotto, Enis & White, L.L.C., attorneys; Ms. Tonneman, of counsel, and on the brief; Lisa Steirman Harvey, on the brief).

Before Judges Axelrad, Nugent and Haas.

PER CURIAM

Defendant John G. Burns, a fugitive, appeals from the post-judgment Family Part Order that denied his motion for a hearing concerning recalculation of his spousal and child support obligations. He contends the court erred by denying his motion on the grounds he had withheld financial information and filed a misleading case information statement. He also contends that the court abused its discretion by issuing a bench warrant for his arrest after he defied three court orders, which he asserts were issued without due process. Lastly, he challenges both the judgment the court entered against him for support arrearages and the counsel fees the court awarded to plaintiff. Having considered the parties' arguments in view of the record and controlling law, we affirm.

I.

Married in 1992 and divorced in 2008, the parties have five children ranging in age from ten years old to eighteen years old. Incorporated into the parties' February 25, 2009 Amended Dual Judgment of Divorce (DJOD) is their sixty-seven page Matrimonial Settlement Agreement (MSA).[1] Article II of the MSA sets forth their agreement concerning custody and provides a comprehensive parenting plan. Plaintiff, Donna R. Burns, is "designated the primary caretaker and primary residential parent." Articles III and IV of the MSA, concerning child support and alimony, require defendant to pay alimony and child support to plaintiff so that she receives "$11, 000 per month in net support." Article III also addresses other expenses for the children, including health care, pre-school, and extracurricular expenses, as well as college expenses.

Notwithstanding the MSA provisions concerning spousal and child support, paragraph 85 of the MSA states:

The parties agree to settle their pending matrimonial matter notwithstanding the fact that they are in disagreement over this issue. The parties acknowledge that a significant component of this Agreement is the mandatory review provisions of Husband's support obligation, which review shall be conducted notwithstanding the fact that without such an Agreement, the case law suggests that Husband would not be entitled to such a review at the times to which the parties have agreed. The parties recognize that one issue that may need to be determined during the review process is the marital standard of living, and that by agreeing to not agree on the standard of living at this time, the parties may simply be delaying that ultimate resolution. The parties acknowledge that they have been advised by their attorneys of their right to have a hearing at this time with regard to the issue of determining the marital lifestyle, and have elected to voluntarily waive that right in furtherance of their desire to resolve this matter expeditiously and without incurring additional counsel fees and costs.

Paragraph 86 of the MSA further explains:

The parties acknowledge that they have not agreed upon the proper method for determining and defining the marital standard of living. In particular, the parties have not agreed whether a determination as to marital lifestyles should include an examination of the budget for any particular year during the marriage, as opposed to an examination of a compilation of years or some other methodology. The parties agree to forego resolution of this issue, and expressly reserve same for a future plenary hearing, should that become necessary.

In addition to the terms concerning review of defendant's support obligations, paragraphs 110 through 116, under the heading, "Review of Support, " state that if defendant does not lose his job, "a review of the support arrangement shall be undertaken in April 2009." The MSA requires that the review "be conducted by the parties and counsel with an agreed upon mediator, " and provides for judicial review if mediation is unsuccessful.

When the parties signed the MSA, defendant was a stock broker with UBS Financial Services, Inc. The MSA was based in part on defendant's representation that he currently earned $10, 000 net per month. Because defendant's net monthly income was $1, 000 less than his support obligations, the MSA permitted him to pay $4, 000 per month, up to a total of $25, 000, from a home equity line of credit (LOC) secured by a property in Branch Beach. The amounts defendant paid from the LOC were not to be considered support arrearages, but he was required to repay them.

In October 2009, defendant initiated the review process provided for in the MSA. Following motion practice, the court entered a consent order appointing a mediator, requiring the parties to exchange financial discovery, and continuing defendant's support obligations but suspending enforcement of those obligations, "by way of bench warrant, suspension of license, or otherwise . . . pending the conclusion of the mediation and/or further Order of the Court."

During the next one-and-one-half years, the parties were unable to settle their dispute through mediation. In June 2011, defendant filed a motion seeking a judicial hearing and recalculation of his support obligations as well as other relief. Plaintiff filed a cross-motion seeking a judgment against defendant for support arrearages in excess of $300, 000, vacating the provision in the previous order suspending enforcement of defendant's support obligations, compelling defendant to pay off the LOC, and other relief.

Following oral argument the court entered an order that, with certain exceptions, denied relief to all parties, but reserved a final ruling on such relief until defendant submitted financial information. Because defendant apparently no longer worked at UBS, the court granted plaintiff leave to subpoena defendant's employment records concerning defendant's compensation, severance packages, and other financial information from UBS. The court further ordered defendant to submit within ten days:

a. An updated, accurate and complete Case Information Statement [(CIS)], including, but not limited to, accurate year to date information on any and all income from UBS and any other source for 2011;
b. Information on the real property that defendant has owned since 1995 and was sold at a $115, 315.00 profit on December 9, 2010;
c. Copies of any and all paystubs from Merrill Lynch [plaintiff's current employer] for 2011;
d. The last three (3) paystubs from UBS [and] the disposition of defendant's UBS stock, valued at the time of the divorce at $196, 075.00, which stock was awarded to him in or about December 2005;
e. The status or disposition of the Liberator Medical Device stock, and if sold, a copy of the IRS tax return ...

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