Court Denies Woman's Request To Reduce Alimony Obligation

In the recent Appellate Division case out of Essex County, Clark v. Pomponio, Bonnie Clark, Plaintiff, appealed from a 2013 post-judgment modification Court Order that denied her Cross Motion for a reduction in her alimony obligation owed to Defendant, Anthony Pomponio. The Appellate Division affirmed the decision of the lower court. The parties in this case were married in 1982 and only one child was born of the marriage. For the majority of the marriage the parties owned and operated North Jersey Diamond Wheel (NJDW). The Plaintiff filed for divorce in 2001 and the Defendant filed an Answer and Counterclaim in 2002. During the divorce proceedings the Defendant filed for Chapter 13 Bankruptcy. During his automatic bankruptcy stay under 11 U.S.C.A. 362(a) the trial court dismissed the Defendant's Answer for failure to provide discovery. After the stay was lifted the trial court entered a default judgment in 2004. In 2005, the court issued a judgment of divorce (JOD), which distributed the marital assets, set forth the Plaintiff's waiver of alimony, and awarded counsel fees to the Plaintiff. The Defendant appealed, arguing that his right to present an affirmative defense was denied because his Answer was improperly dismissed. In 2008, the Appellate Court reversed portions of the default judgment that pertained to equitable distribution, counsel fees, and alimony. After a trial was conducted on the issues, the Family Court judge rendered a decision in 2011 memorializing ownership of NJDW to the Plaintiff and required her to pay Defendant permanent alimony in the amount of $35,000 per year which was later reduced to $20,000 a year in 2012. In 2013, the Plaintiff submitted an application to reduce her alimony based upon a change in circumstances with regard to the finances of NJDW. The judge denied the Plaintiff's Motion for an alimony reduction because her Motion failed to attach all prior Case Information Statements (CIS) according to New Jersey Court Rule 5:5-4(a), as well as a lack of a prima facie showing of a change in circumstances. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). The Plaintiff appealed. The Appellate Division ruled that post-judgment Motions involving disputes concerning support obligations must be accompanied by both prior and current CISs according to N.J.C.R. 5:5-4(a). The rule is mandatory and not permissive. The CISs provide a way for the trial judge to get a complete picture of the finances of the movants in a modification case. Guyla v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991) . Further, alimony awards may be modified according to N.J.S.A. 2A:34-23 and the "party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes v. Innes, 117, N.J. 496, 504 (1990). In this case, the Plaintiff was unable to show that the reduction in her income was not merely temporary and therefore her Motion was properly denied. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification , equitable distribution, or other family law matters in New Jersey visit HeatherDarlinglawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

No Post-Judgment Modification Of Alimony Without Changed Circumstances

In the recent Appellate Case, Youngblood v. Youngblood, appealed out of Sussex County, the Plaintiff appealed from a post-judgment modification Court Order that affected his alimony and child support obligations and required him to obtain health insurance for his son. The Appellate Court affirmed the decision of the Family Court because the Plaintiff was unable to prove changed circumstances. The parties in this case were married in 1985 and two sons were born of this marriage. One of these sons was still unemancipated at the time of this action. The Plaintiff filed for divorce in 2010 and a trial proceeded on the issues of alimony and child support. The Family Court judge rendered a written statement of the reasons for his decision and in his statement he reviewed all of the statutory factors applicable to alimony according to N.J.S.A. 2A:34-23(b). With specific regard to his income, the Plaintiff argued that his business peaked in the previous five years but suffered extreme losses in 2008 after he lost two of his most important customers. The judge averaged out his income over two of the median years to best reflect a more accurate income figure. In the final divorce judgment the judge ordered the Plaintiff to pay permanent alimony of $2,500 a month and $185 a week in child support. In 2012, the Plaintiff filed a Motion to reduce his alimony and child support obligations. The Defendant responded with a Cross-Motion requesting that the Plaintiff provide health insurance for their son. The judge denied the Plaintiff's Motion and granted the Defendant's relief. The Plaintiff then filed a Motion for reconsideration. The Appellate Court affirmed the decision of the Family Court holding that changed circumstances is the standard with which any modification of child support and alimony must be evaluated. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). A change in circumstances can arise from various factors, including a reduction of income that occurs after the judgment of divorce. Lepis v. Lepis, 83 N.J. 139, 151 (1980). The Family Court must also consider whether the "changed circumstances have substantially impaired the [spouse's] ability to support himself or herself," however, "courts have consistently rejected requests for modification based upon circumstances which are only temporary. Lepis, 83 N.J. at 151. The Plaintiff's argument that he suffered a change in circumstances relies on the premise that the Family Court erred in computing his income, but the Plaintiff did not appeal from that judgment. According to the court, reconsideration is a "matter within the sound discretion of the Court, to be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). In sum, the Appellate Division found that the Plaintiff's argument that the Family Court judge erred in his decision were without merit because he did not provide any evidence before the motion judge that a change in circumstances since the rendering of the final divorce judgment "substantially impaired the ability to support himself." If you anticipate that you may want to petition the court for a post-judgment modification of your alimony or child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, divorce, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Appellate Court Upholds Parties' Agreement Regarding Alimony Waiver

In a recent Appellate Division case, Degilio v. Degilio, the Plaintiff, Julianne Degilio appealed from a Family Court order arguing that the judge erred by not allowing her to petition for alimony despite a term contained in a property settlement agreement (PSA) between her and the Defendant, James Degilio, in which both parties agreed to forever waive alimony. The parties in this case were married in 1990. In 2005, they were divorced pursuant to a Final Divorce Judgment which included a PSA that specified the equitable distribution of their marital property. One particular term contained in the PSA stated that both parties “now and forever waive any and all claims for alimony and support, past, present and future, that they have or may have against the other party.” Further, the language of the PSA specified that “but for this waiver of rights to request alimony, the Husband would not have agreed to the equitable distribution arrangement set forth herein.” After the parties were divorced, the Defendant failed to make payments to the Plaintiff as he was directed under the terms of the PSA. The Plaintiff submitted a motion to the court to enforce the terms of the agreement. Once again, the parties engaged in negotiations and reached an agreement that modified their existing PSA by consent order. One of the modifications specified that the Defendant was to pay $300,000, in tax-free equitable distribution . . .” on a monthly basis until the obligation was satisfied. In addition, the consent order directed that “the parties specifically preserve all provisions set forth” in the previous PSA. Over time, the Defendant began to default on his obligation again and the Plaintiff filed multiple motions to compel him to pay. In 2011, the Plaintiff filed an unopposed motion to reopen the parties’ Judgment of Divorce seeking an alimony award because the Defendant continued to default on his obligation. The Family Court denied her motion. The Defendant continued to neglect his obligation and the Plaintiff yet again filed a motion to enforce the terms of the agreement and to reopen the Judgment of Divorce seeking alimony. This time, the Family Court found the Defendant in violation of litigant’s rights but did not reopen the Judgment of Divorce. The Plaintiff appealed from this order. In its opinion the Appellate Division first notes that it typically affords substantial deference to the decisions of Family Court judges. Donnelly v. Donnelly, 405 N.J. Super 117, 127 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Next, in affirming the Family Court’s decision, the Appellate Court holds that with regard to the Plaintiff’s argument that the Family Court judge erred in denying her motion to reopen her Judgment of Divorce – the courts are courts of equity and as such they strive to uphold settlement agreements whenever possible. Massar v. Massar, 279 N.J. Super. 89 (App. Div. 1995). With regard to this case, the Defendant had substantially complied with the terms of the PSA because he had “made payments for a number of years before he got into default,” and therefore the Appellate Court was unwilling to disturb the terms of their PSA as a matter of public policy. Further, with regard to the Plaintiff’s motion for reconsideration, the Appellate Court also found that the Plaintiff’s challenge to the initial opinion and order under Rule 1:7-4 was without merit because the judge’s decision adequately set forth the findings and legal grounds for denying her application. If you anticipate that you may want to file an application with the court to modify an existing alimony award or for a modification of your Final Judgment of divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, equitable distribution, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and in no way is it intended to replace the advice of an attorney.