NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2048-17T4
L.S.,
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant. _________________________
Submitted February 11, 2019 – Decided April 25, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1170-13.
J.S., appellant pro se.
Gary Wm. Moylen, attorney for respondent.
PER CURIAM
In this post-judgment matrimonial matter, defendant (ex-husband) appeals
from two Family Part orders. He appeals from a December 4, 2017 order, denying his motion to reconsider a June 22 and a July 7, 2017 order. The June
22 order denied his motion to terminate or reduce his alimony obligation to
plaintiff (ex-wife), and the July 7 order awarded plaintiff $4970 in counsel fees.
Defendant also appeals from a December 12, 2017 order, denying his motion for
an order to show cause. We affirm.
The parties married in 1992 and divorced in 2014. Under the parties' June
2, 2014 matrimonial settlement agreement (MSA), which was incorporated into
their final dual judgment of divorce of the same date, defendant agreed to pay
"permanent alimony" in the amount of "$27,000 per year, payable in weekly
installments of $519 through the New Jersey Support Payment Center." Under
the MSA, defendant's alimony obligation would terminate "upon the death of
[plaintiff] or her remarriage, cohabitation[,] or alimony buyout under the terms
of th[e] [MSA]."
The MSA provided that the alimony provision was based upon the
following factors:
Both parties [were fifty-three] years old and in relatively good health. [Defendant] has been a contractor for his entire career. [1] The forensic
1 According to the MSA, defendant "owns or has owned the following business enterprises: North Jersey Wildlife Control, LLC […], East Madison Assoc., LLC[;] Broadview Development Group, LLC[;] and Broadview Associates, LLC." Plaintiff "waive[d] all interest and/or claims to these businesses." A-2048-17T4 2 accountant, Brian Corcoran, CPA, has determined his historical annual gross personal income to be between $115,000 and $130,000. Both parties dispute Mr. Corcoran's findings. [Plaintiff] believe[d] these amounts under-estimate [defendant's] income. [Defendant] believe[d] these amounts over-estimate his income. Over the past few years, [plaintiff] has worked as a part-time babysitter earning $15 per hour. She is now working full[-]time, earning gross income of approximately $450 per week, or $22,500 per year. [Plaintiff] agree[d] to the imputation of $25,000 gross income per year. Both parties [were] high school graduates. The parties have each certified to marital expenses of approximately $10,000 per month on their Case Information Statements [(CIS)] filed with the [c]ourt.
A handwritten addendum to the MSA provided:
For the first [eighteen] months or the sale of the marital residence, whichever first occurs, [defendant's] alimony obligation shall be reduced to one-half [or] $259.50 per week. The other one-half of this payment shall separately accrue for no longer than the [eighteen- month] period. During this time of accrual, the parties agree to a [two percent] annual interest on the unpaid amount. This unpaid amount shall be paid to [plaintiff] from [defendant's] share of the proceeds from the sale of the marital residence.
The marital residence referenced in the handwritten addendum was
addressed under the equitable distribution section of the MSA. Specifically, the
parties shared an "equal interest" in the marital residence, which had a "current
selling price of . . . between $925,000 and $1,000,000." Defendant's mother also
A-2048-17T4 3 "own[ed] a life estate on [the] property." Plaintiff was entitled to "sole
occupancy and possession of the [m]arital [r]esidence" and "agree[d] that upon
the consent of [defendant's mother] or upon a forced sale due to foreclosure,
whichever first occur[red], the marital residence [would] be sold."
Paragraph 3.5 of the MSA delineated how the proceeds of the sale of the
marital residence would be distributed. At closing, usual and customary costs,
$100,000 for defendant's mothers' life estate interest, and any outstanding
mortgages and loans on the property would be subtracted from the sale price.
The remaining balance would be divided between both parties, with plaintiff
receiving her one-half interest and the following amounts being paid to plaintiff
from defendant's one-half interest: 1) $32,430.61 in pendente lite obligations; 2)
one-half debt due on a Target credit card; 3) any outstanding support arrears;
and 4) $4282.02 in medical bills. Any shortfall not covered by defendant's share
would be added to defendant's support arrears.
Under Paragraph 3.21,
[t]he parties agree[d] that the terms and provisions of this [MSA] act in full and complete satisfaction of any and all claims which either may have against the other, including their respective rights to equitable distribution under [N.J.S.A.] 2A:34-23. In further discharge of the claims of [plaintiff] for equitable distribution and alimony, [defendant] shall pay to
A-2048-17T4 4 [plaintiff] the totals described in Paragraph 3.5 tax[-] free, from the sale of the marital residence.
Under the bankruptcy provision of the MSA, the parties agreed that "[a]ll
of the provisions in th[e] [a]greement for the payment of money by either party
[were] not dischargeable in bankruptcy" and that "the debts incurred by either
[party] . . . [were] of such a nature that they [were] not dischargeable in a
bankruptcy proceeding, whether voluntary o[r] involuntary." Regarding counsel
fees in the event of a breach, the MSA provided:
If either party defaults in the performance of any provisions of this [a]greement, and if the other party shall institute and prevail in legal proceedings to enforce the performance of such provisions by the defaulting party, then the faulting party shall pay to the other party, the necessary and reasonable court costs and attorney's fees incurred by the prevailing party in connection with such legal proceedings. . . . This provision is intended to be enforced as a freely bargained for contractual agreement, and a counsel fee claim for reimbursement pursuant to this provision is not intended to and shall not be subject to the [c]ourt's discretion under [Rule] 4:42-9(a).
The parties further acknowledged that in executing the MSA, "they have
each been represented by counsel with respect to the negotiation, drafting, and
execution of th[e] [a]greement." Both parties "specifically indicate[d] their
satisfaction with the services of counsel, and further state[d] that they have had
an adequate opportunity to discuss th[e] [a]greement, its provisions, and the
A-2048-17T4 5 effects thereof with respective counsel[.]" Each party acknowledged that the
MSA "contain[ed] the entire understanding of the parties, and there [were] no
representations, warranties, covenants, promises or undertakings other than
those expressly set forth" in the MSA. They "agree[d] that their future relations
shall be governed and fully prescribed by the terms" of the MSA, and any
"modification or waiver of any of the provisions . . . shall be effective only if
made in writing." The parties also acknowledged that they were "entering into
[the] [a]greement voluntarily, without threat, force, coercion[,] or duress . . . by
any person[,]" and believed that the agreement was "fair, equitable, and
appropriate under all of the circumstances of th[e] case" and "their respective
individual best interests."
Thereafter, the parties engaged in extensive post-judgment motion
practice. In 2016, the marital residence was sold for $321,771.60. Pursuant to
a settlement agreement executed in a lawsuit filed by defendant's mother against
the parties in connection with the sale of the marital residence, defendant's
mother received $160,000, $130,000 of which was derived from the proceeds of
the sale. On February 17, 2017, plaintiff filed an enforcement motion to compel
defendant to pay her $519 per week in permanent alimony and to have the
accrued alimony, with two percent interest, that was deferred from June 2, 2014,
A-2048-17T4 6 until the resumption date of full alimony payments, added to defendant's support
arrears as required under the MSA and handwritten addendum. Plaintiff also
sought counsel fees. Defendant opposed the motion and cross-moved for
termination or reduction of his alimony obligation based on changed
circumstances. Although the motion judge directed defendant to provide
supplemental financial documents, including five years of income tax returns,
defendant only provided tax returns for three years, during which defendant
reported earnings of $31,200 in 2014, $42,400 in 2015, and $41,600 in 2016.
On June 9, 2017, Judge Michael Paul Wright conducted oral argument on
the motions,2 during which defense counsel argued that defendant's
"understanding" of "[P]aragraph 3.21" of the MSA was that "his obligation to
pay alimony would terminate when the house was sold and [plaintiff] got the
proceeds." Thus, according to defendant, Paragraph 3.21 constituted a "buy out"
provision. Alternatively, defendant argued for reduced alimony because he was
now remarried with an eleven-month-old child, caring for his sick mother,
unemployed, and having trouble finding work because of his health and age.
2 At oral argument, defense counsel submitted to the court the parties' 2012 income tax return when they were still married, showing a net income of $50,000.
A-2048-17T4 7 In a June 22, 2017 order, Judge Wright granted plaintiff's motion in its
entirety and denied defendant's cross-motion. In his accompanying six-page
statement of reasons, after reciting the applicable legal principles 3 and the
pertinent provisions of the MSA, the judge rejected defendant's argument that
the sale of the marital residence and distribution of the proceeds terminated his
alimony obligation. The judge explained:
The boilerplate integration language contained in [P]aragraph 3.21 cannot reasonabl[y] be read to excuse [d]efendant's alimony obligation, especially when read in conjunction with the alimony-specific provisions of the MSA. Paragraph 2.2 indicates [d]efendant's alimony obligation is "permanent." Paragraph 2.3 lists several termination events for [d]efendant's alimony obligation. Plaintiff's receipt of proceeds from the sale of the marital home is not one such event. The [handwritten] addendum reference[s] both alimony
3 See Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) ("Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability."); Rosen v. Rosen, 225 N.J. Super. 33, 36 (App. Div. 1988) ("However, courts have allowed modification of property settlement agreements under the catch - all paragraph (f) of [Rule] 4:50-1, . . . where there is a showing of inequity and unfairness."); Konzelman v. Konzelman, 158 N.J. 185, 194 (1999) ("Courts have continuing power to oversee divorce agreements . . . and the discretion to modify them on a showing of 'changed circumstances,' . . . that render their continued enforcement unfair, unjust, and inequitable.") (citations omitted); Crews v. Crews, 164 N.J. 11, 24 (2000) ("Courts have the equitable power to . . . revise [alimony] orders . . . 'on a showing of changed circumstances.'" (quoting Lepis v. Lepis, 83 N.J. 139, 146 (1980))).
A-2048-17T4 8 payments and the proceeds of the sale of the marital home. The addendum similarly does not provide for alimony termination upon the distribution of these proceeds.
See Flanigan v. Munson, 175 N.J. 597, 606 (2003) ("In interpreting a [property
settlement agreement], [i]t is not the real intent but the intent expressed or
apparent in the writing that controls." (second alteration in original) (quoting
Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 135
(2001))); Miller v. Miller, 160 N.J. 408, 419 (1999) ("Given the absence of
unconscionability, fraud, or overreaching in the negotiations of the settlement,
. . . no legal or equitable basis exists to reform the parties' property settlement
agreement.").
Turning to defendant's alternate request for a reduction of alimony, the
judge determined "[d]efendant ha[d] not established a prima facie showing of
changed circumstances" and denied the request without prejudice. The judge
noted that "[c]ourts have consistently rejected requests for modification based
on circumstances that are only temporary or which are expected to occur but
have not yet occurred." See Lepis, 83 N.J. at 151. According to the judge,
"[d]efendant's motion papers simply advance[d] a naked assertion that he [was]
no longer making the sums of money he did previously." Judge Wright was
A-2048-17T4 9 unpersuaded, particularly since "[d]efendant's financial status [was] totally
unverified by any persuasive proofs." The judge explained:
Defendant's 1040s indicate that from 2014 through 2016, [d]efendant earned a combined total income of $115,200. During those years, [d]efendant report[ed] paying alimony in the amount of $67,467. The [c]ourt is leery of these numbers given that—if accurate— [d]efendant's only available income for these three (3) years was the $47,733 that remain[ed] after deducting alimony. . . . Moreover, [d]efendant's previously filed CISs do not indicate that [d]efendant has liquidated any significant assets during this time. In fact, [d]efendant's CIS dated October 1, 2015[,] values his total assets at [$8000]. Defendant's CIS filed March 31, 2017[,] values his total assets at [$7000].
The "numbers" simply do not add up. . . . Defendant provides no W-2s or profits and loss statements with his tax returns. If anything, it appears [d]efendant has been able to pay alimony for several years despite his argument regarding reduced income. Moreover, [d]efendant has failed to demonstrate any reduced income is involuntary. . . .
In that regard, Judge Wright referenced the findings detailed in a
September 15, 2014 order by a prior judge, stating:
Defendant claims his current employment has left him in dire financial straits, however, it seems . . . [d]efendant has willfully terminated his own more lucrative business ventures in an effort to frustrate the [o]rders of this [c]ourt and the provisions of the parties' [MSA]. . . . [T]he court notes [d]efendant's continual defiance of [c]ourt [o]rders and his recalcitrant behavior throughout the litigation of this matter. . . .
A-2048-17T4 10 [T]his behavior continually delayed or otherwise frustrated the proceedings in this matter, resulting in duplicative enforcement motions. . . . [Defendant's] reliance on the argument that his financial circumstances have changed dramatically and therefore render him unable to contribute towards these costs is directly related to his choice to abandon his previously successful business ventures. Defendant's scorched earth position cannot be countenanced[.]
Relying on Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006),
Judge Wright stated "[c]ase law in fact tells the [c]ourt to be leery of self-
employed individuals, as they are in 'a better position to present an unrealistic
picture of [their] actual income than a W-2 earner.'" Thus, Judge Wright rejected
defendant's claim of changed circumstances warranting modification pursuant
to Lepis, 83 N.J. at 151. Further, after analyzing the applicable factors under
Rule 5:3-5(c), Judge Wright granted plaintiff's request for counsel fees subject
to the submission of a certification of services as required under Rule 4:42-9(b).
The judge found that "[t]he majority of [d]efendant's requests were either denied
or denied without prejudice," and plaintiff "[was] in the inferior financial
position." Upon submission of the requisite certification of services, in a July
7, 2017 order, Judge Wright awarded plaintiff counsel fees in the amount of
$4970, payable within thirty days.
A-2048-17T4 11 On July 31, 2017, defendant moved for reconsideration of the June 22 and
July 7, 2017 orders, and, for the first time, requested an order compelling
plaintiff to pay him alimony. In support of his uncounseled motion, defendant
certified that, when the judge concluded that his assertions were "contrary to the
evidence," the judge failed to consider the financial documents he previously
submitted, including his 2014, 2015, and 2016 tax returns, a life insurance quote,
unemployment checks, and his most recent bank statement showing a $5
balance. He also certified that his income had been reduced by "more than
[seventy-five percent]" over "almost [thirty-two] months due to involuntary
poor economic circumstances in construction" as evidenced by several news
articles he referenced. He also accused the "[c]ourt [of] . . . recast[ing],
revis[ing,] or rewrit[ing] the MSA" by stating that his understanding was
unreasonable, and accused plaintiff and her attorney of making "false
representation[s]" to the court about him "hiding money" and "fraudulent
claim[s] that the [MSA does not] say what it means[.]" Additionally, he accused
Corcoran of "violat[ing] . . . the law[] and [professional] regulations" in his
valuation of defendant's business that was used in the MSA.
Plaintiff opposed the motion and cross-moved for an order incarcerating
defendant until he complied with the June 22 and July 7 orders. To refute
A-2048-17T4 12 defendant's claims of poverty, plaintiff submitted "a monthly bank statement of
[defendant's] company 'North Jersey Wildlife Control LLC […],'" showing
monthly deposits of $153,845.61, $184,477.37, and $175,000. Plaintiff also
provided a joint bank statement in the names of defendant and his new wife
showing a $3500 deposit, which, according to plaintiff, provided evidence of
defendant's ability to "hide income." In reply, defendant certified that the bank
deposits were "[four-and-one-half] to [five] years old." He also submitted his
Chapter 7 bankruptcy petition dated August 31, 2017, and a May 13, 2014 email
from defendant to plaintiff's attorney discussing a possible alimony buyout.
In a December 4, 2017 order, Judge Wright denied defendant's motion in
its entirety and granted, in part, plaintiff's request to incarcerate defendant for
noncompliance. In his eight-page statement of reasons, the judge found that
"[d]efendant fail[ed] to provide new persuasive evidence" to support "his
position" that the court "overlook[ed] his financial information, his closed
business, . . . his reduction in income[,]" or "his dire financial circumstances[.]"
According to the judge, defendant "fail[ed] to establish that the [c]ourt failed to
appreciate the significance of probative evidence" or that "the [c]ourt . . . made
its decision on an incorrect basis of facts[,]" as required for relief on a motion
for reconsideration under Rule 4:49-2 and Cummings v. Bahr, 295 N.J. Super.
A-2048-17T4 13 374, 384 (App. Div. 1996). Instead, the judge stated "[d]efendant simply
disagree[d] with the [c]ourt's analysis." See Palombi v. Palombi, 414 N.J. Super.
274, 288 (App. Div. 2010) (explaining that reconsideration "is not appropriate
merely because a litigant is dissatisfied with a decision of the court or wishes to
reargue a motion"); Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super.
159, 175 (App. Div. 2005) ("A motion for reconsideration is properly based on
'matters . . . which counsel believes the court has overlooked or as to which it
has erred.'" (alteration in original) (quoting R. 4:49-2)).
In particular, Judge Wright noted "[d]efendant [did] not specify certain
facts for the [c]ourt to reconsider, but [made] bold statements of dissatisfaction
with the [c]ourt's decision." For instance, [d]efendant
provide[d] no bank statements, no tax returns, or anything else that would indicate the status of his financial circumstances. He simply allude[d] to documents and cite[d] a two . . . page letter that refer[red] to these documents as attachments without providing the actual documents. . . . Additionally, defendant [did] not provide proof of his seventy-five percent . . . reduction in income with anything other than news articles regarding the state of the economy.
Thus, the judge concluded defendant "provide[d] no new arguments that
persuade[d] the [c]ourt its previous analysis was incorrect."
A-2048-17T4 14 Likewise, the judge determined defendant's argument "that the [c]ourt
attempted to 'recast' the parties[' MSA] when disagreeing with [defendant's]
interpretation of Paragraph 3.21" failed "to meet his burden for a motion for
reconsideration." Judge Wright pointed out that rather than "provid[ing]
evidence demonstrating the [c]ourt's interpretation as unreasonable" or "cit[ing]
to any prior communication that would clarify any of the alleged ambiguity of
the language between both parties[,]" defendant "simply challenge[d] the
[c]ourt's analysis . . . regurgitating the same arguments previously offered."
Regarding defendant's newly minted request for plaintiff to pay him alimony,
the judge noted that the motion was "not appropriate on reconsideration[.]"
Nonetheless, the judge denied the motion on the merits, explaining that by
providing defendant's "bank statements which point to better financial
circumstances than . . . [d]efendant would like the [c]ourt to believe[,] . . .
[p]laintiff . . . provided the court with good cause to deny [defendant's] request
for alimony."
Turning to plaintiff's cross-motion, Judge Wright explained that when a
party fails "to comply with the terms of an order[,]" a "litigant may seek relief
from the [c]ourt" pursuant to Rule 1:10-3. According to the judge, such relief
is appropriate where the party's "recalcitran[ce]" justifies an order "to coerce
A-2048-17T4 15 compliance" and the judge "find[s] on the record that the delinquent party has
the ability to comply with the order enforcing litigant's rights." See Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 392 (1995).
The judge found that:
Defendant has failed to comply with several court orders for payment of alimony, dating back to 2014. Likewise, [d]efendant's conduct of noncompliance has been noted in the language of prior [c]ourt [o]rders . . . . Additionally, [d]efendant has continued to file frivolous litigation with his current [m]otion for [r]econsideration in order to prolong litigation and continue to avoid compliance with the [c]ourt's prior [o]rders.
. . . Defendant has a history of noncompliance that continued to prejudice [p]laintiff.
As a result, Judge Wright ordered that:
Defendant shall make a good faith payment of ten thousand dollars . . . within seven . . . days of the date of this [o]rder. Should [d]efendant fail to make said payment, upon . . . [p]laintiff's certification of noncompliance, the [c]ourt will immediately schedule an enforcement hearing exposing . . . [d]efendant to immediate incarceration. Likewise, should [d]efendant fail to pay [p]laintiff the remaining arrears within the time frame mandated, upon [p]laintiff's certification of noncompliance, an enforcement hearing will be scheduled exposing defendant to further incarceration.
On December 11, 2017, defendant filed a motion for an order to show
cause, requesting an ability to pay hearing, an "indigency" hearing, a plenary
A-2048-17T4 16 hearing regarding the interpretation of the MSA, and an order restraining
plaintiff from seeking defendant's incarceration. In a supporting certification,
defendant reiterated his prior arguments, stated he "continue[d] to be irreparably
harmed and damaged with threats of incarceration based on inadmissible,
fraudulent evidence[,]" and requested a stay of the December 4 order. In a
December 12, 2017 order, Judge Wright denied defendant's application without
prejudice. In rejecting defendant's application, the judge found that "[d]efendant
fail[ed] to provide proof of service" in compliance with Rule 4:52-1(a), and
"failed to establish irreparable harm" pursuant to Crowe v. De Gioia, 90 N.J.
126, 132-34 (1982).4 On January 3, 2018, defendant filed the instant notice of
appeal.
Defendant argues the judge abused his discretion 5 by denying his motion
for reconsideration of the June 22 and July 7 orders, and deprived him of "all
4 On December 14, 2017, we denied defendant's emergent application, seeking a stay of the December 4 order, noting that "[i]f arrested, the trial court must conduct an ability to pay hearing before defendant can be incarcerated." On December 15, 2017, over defendant's objection, plaintiff's attorney filed a certificate of non-compliance with the court, averring that defendant failed to comply with the December 4 order and requesting an enforcement hearing. 5 An "abuse of discretion only arises on demonstration of 'manifest error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's decision is "made
A-2048-17T4 17 [d]ue [p]rocess [r]ights." Defendant asserts the "[j]udge made his decision on
palpably incorrect reasoning," which was "based on stale and inadmissible
financial and income proofs." According to defendant, the judge failed to
consider evidence of his "changed circumstances[,]" particularly that his income
had been "substantially reduced," and "failed to consider and weigh" the
statutory factors enumerated in N.J.S.A. 2A:34-23(b).6 Further, defendant
contends the judge's decision was based on a palpably incorrect interpretation
of the MSA, rendering the "order . . . unjust" or "inequitable." Additionally,
defendant contends the judge erred in denying his motion for an order to show
without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). 6 We note that the fourteen enumerated factors were part of the amendments to N.J.S.A. 2A:34-23(b), enacted on September 10, 2014, over three months after the execution of the MSA and the entry of the final judgment of divorce in this case. Because the Legislature specified that the amendment would not be applied retroactively to modify "any enforceable written agreement between the parties" in effect prior to the amendment, L. 2014, c. 42, § 2, it is not applicable to this case.
A-2048-17T4 18 cause because an application of the Crowe factors7 "support[ed] the issuance of
emergent relief."
We have considered defendant's contentions in light of the record and
applicable legal principles and conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm
substantially for the reasons expressed by Judge Wright in his comprehensive,
cogent, and well-reasoned statement of reasons accompanying the December 4
and 12, 2017 orders.
Affirmed.
7 Under Crowe, a party seeking interim injunctive relief must demonstrate: (1) whether the injunction is "necessary to prevent irreparable harm"; (2) whether "the legal right underlying [the] claim is unsettled"; (3) whether the applicant has made "a preliminary showing of a reasonable probability of ultimate success on the merits"; and (4) "the relative hardship to the parties in granting or denying [injunctive] relief." 90 N.J. at 132-34. A-2048-17T4 19