On February 2, 2009, the Appellate Division released a reported (precedential) decision that affirmed a decision of the trial court denying the former husband’s motion for a downward modification of his alimony and child support obligations.  The Appellate Division found that the trial judge properly exercised his discretion particularly when viewed against his findings from a multi-day plenary hearing (trial) that occurred less than one year prior. To see the full text of this case, click here.

The parties were divorced in 2003 and entered a Property Settlement Agreement (PSA) where he agreed to pay $1,000 per week in alimony and $350 per week in child support for the parties’ 3 children.  In addition, based upon the joint accountant’s finding of the five year average of the husband’s income, he agreed that support was based upon $185,000 for him.

In 2005, the husband moved for a reduction in his support obligation claiming a downturn in his law practice.  The plenary hearing on this motion was held over several days in December 2006.  After the hearing, the judge denied the husband’s motion finding that during the time that the husband’s income had supposedly decreased, he obtained a new $58,000 Lexus and bought a home for $785,000 with a $600,000 mortgage.  The judge also found that based upon the evidence at trial and his CIS, that the husband’s income was more in the $140,000 range and not $100,000.  The judge also rejected the husband’s claim that he was indebted to the Internal Revenue Service in the amount of $55,000 because Gregory failed to provide any documentation to
support that assertion.

In addition, the judge found no proof to support the husband’s claims about his practice’s “deteriorating case load.” He held that the husband’s testimony, which was the only evidence provided  “unconvincing” and his testimony that  he was unable to support the marital standard of living was “incredulous.”   Further, while  unpersuaded that his level of income had substantially deteriorated, the judge also referred to the Appellate Division decision in Larbig v. Larbig,  and held he was “not convinced” that the husband’s alleged decline in business “is of [a] permanent nature which inhibits his ability to sustain himself as well as child support and alimony payments” in the amount set forth in the PSA.

Nine months after the January 2007 Order denying the first motion, the husband filed a second motion for essentially the same relief.  On this occasion, the motion was denied after oral argument without a plenary hearing.  The Court found that since the original motion was filed in 2004, the husband took on greater obligations that were reasonable if his income were actually dwindling.  The husband appealed.

The husband argued that the trial judge was in error because he was committed to his prior findings.  The Appellate Division agreed that this was no doubt true but not error and as such, the case should not be assigned to another judge.  The Court further held:

As we have already indicated, the judge was not required to wipe the slate clean and consider a similar contention regarding Gregory’s earnings less than one year after the prior order as if the earlier hearing had never occurred. To the contrary, the judge was required to consider not whether there was a substantial change since the 2003 PSA but whether there was a substantial change since he rendered his fact findings in December 2006. Admittedly, a sworn assertion that the obligor’s income had fallen to $50,000 strongly suggests a substantial change in circumstances — if that is all that is considered.   The judge correctly observed, however, that the focus must also be on the length of time that had elapsed since the last milepost in these post-judgment proceedings. In Larbig, for example, we affirmed a trial judge’s determination that a motion for a reduction in support filed “a mere twenty months after the parties’ execution of the PSA,” 384 N.J. Super. at 22, alleged only a temporary change. See also Lepis, supra, 83 N.J. at 151 (“Courts have consistently rejected requests for modification based on circumstances which are only temporary . . . .”).

The Court further found that given that this motion was filed 9 months after the last one, the husband had not demonstrated a change of circumstances.

Not surprisingly, there was skepticism regarding the husband’s income which was enhanced because he was self employed and thus could manipulate his income.  In fact, the Appellate Division stated:

As we also observed in Larbig, “what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor,” as here, who is “in a better position to present an unrealistic picture of his or her
actual income than a W-2 earner.” 384 N.J. Super. at 23. The judge recognized this in denying Gregory’s motion; indeed, the judge’s decision on Gregory’s first Lepis motion reflects a determination that Gregory’s actual income was greater than what
was urged.

This case demonstrates a problem that is often seen in the cases, post-judgment, to wit, repeated motions for the same relief without providing competent evidence, and then re-filing the motion over and over without really providing more.  The Court correctly determined that it need not expend the wife’s money in counsel fees or the Court’s resources to have another trial less than one year later.

2 Responses to No Hearing Required for Serial Modification Motions

I do not understand how I read about all these reduction in alimony cases and the judge actually listens and people get somewhere. I pay PERMINENT alimony to my ex-husband and have been trying to prove cohabitation to the courts and I get nowhere fast! I have proof just not the proof that the courts want. My ex gets more from my paycheck than I take home in my pay! He has his girlfriend and her two children living in his home. They had an inground pool put in in 2008, fenced the entire property, bought a car for my daughter, went to Florida for a week at Thanksgiving 2008 and now are putting an addition on the house. And I get nowhere in court and struggle each day financially. I now consider food a luxury not a necessity and am so stressed out I have lost too much weight and have been sick with bronchitis twice in one month the end of 2008. Oh and I make too much money to qualify for any help from the state or government.But since my ex was granted social security disabilty for life according to NJ law I am responsible for his financial being until he dies, I die or he gets remarried. Well, he’s not dying, he’s not getting re-married and I’m still here so in my PSA it says I can ask for reduction in alimony if I can prove cohabitation, yea right, try and prove that on your own without a prviate investigator. Not going to happen, so when does the law help the little people, the people who go to work every day and struggle. I guess never unless you have millions and can afford to get an attorney or someone to help you. I pray every night that something changes but so far…

MODIFICATION OF ALIMONY AND CHILD SUPPORT BASED UPON INCOME REDUCTION CAUSED BY THE ECONOMIC DOWNTURN – THE GROUNDSWELL CONTINUES

We have previously posted many blog entries regarding modifying alimony and child support based upon job loss and/or reductions in income in light of the historic, current economic down turn. To see some of my prior posts, click here, here,…

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