Party To Small Business Divorce Seeks Post-Judgment Modification

In Fiorenza v. Fiorenza, the Defendant appealed from the denial of a post-judgment Motion to modify his alimony obligation following a divorce including a small business. The Family Court judge initially ruled that alimony is not modifiable based upon anti-Lepis language in a negotiated Consent Order which set an amount below which the Defendant's alimony obligation could not be reduced. The parties in this case were married in 1986 and divorced in 2010. Three (3) children were born of the marriage. Only one child still remained at home at the time of the proceedings. During the marriage, the Defendant owned an MRI facility in addition to holding an interest in an accounting practice. The Defendant sold his interest in the MRI facility during the divorce because the business was failing. The marital settlement agreement (MSA) which was incorporated into the judgment of divorce directed that "the husband is self-employed and has average earnings of $250,000 per year" and the Plaintiff can reasonably earn "$25,000 per year." The parties agreed that in 2011 the Defendant would pay to the Plaintiff permanent alimony of $100,000 per year in monthly installments of $8,333. Within a few months the Defendant stopped paying support based upon his business suffering some financial hardships. The Plaintiff then petitioned the court to enforce the parties' agreement, resulting in Orders reducing the Defendant's six months' arrears and sending the parties to mediation. Mediation proved to be unsuccessful and the Defendant subsequently filed a Motion to reduce his support and the Plaintiff submitted a Cross-Motion to enforce litigant's rights. These Motions were resolved by the Consent Order that was at issue in the appeal. The exact provision at issue stated that "No matter defendant's annual gross income, at no time shall monthly support be lower than $5,000, except after the emancipation of [the parties' youngest child] when the child support component may be reduced . . . ." The Defendant then made $5,000 monthly payments to the Plaintiff for one year until he unilaterally reduced his payment to $2,000 and then the following month he paid nothing. The Plaintiff immediately moved to enforce the Consent Order to reinstate the support to $8,333, the amount negotiated in the MSA. The Defendant cross moved to reduce his alimony in accordance with Lepis v. Lepis, 83 N.J. 139 (1980) or Morris v. Morris, 263 N.J. Super 237 (App. Div. 1993). After hearing oral argument, the Family Court judge enforced the Consent Order holding the critical clause to operate as an anti-Lepis provision in accordance with the Morris decision. The judge noted that the Defendant did not dispute that both parties bargained for the agreement and each party got the expected benefit and burden of the contract. Although enforcing the Consent Order the judge ordered a plenary hearing to determine his ability to pay both alimony and arrears. After the hearing, the judge ordered the Defendant to pay $2,500 in alimony and child support with the difference between that sum and the required $8,333 under the agreement to accrue. Then the court ordered a nominal arrears payment of $100 per month. The Appellate Division affirmed the decision of the Family Court finding that the trial court was correct in holding that the parties had anticipated the decline in the Defendant's income when they negotiated the Consent Order and agreed that notwithstanding any such decline, his alimony obligation to the Plaintiff would never drop below $5,000 except upon the child's emancipation. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). No explicit reference to Lepis was required. Savarese v. Corcoran, 311 N.J. Super. 240, 243 (Ch. Div. 1997). Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Post-Judgment Alimony Dispute Leads To Appeals

In Dondona v. Dondona, a case appealed out of Morris County, the Defendant appealed from a 2014 Court Order that denied her post-judgment cross-motion to increase the alimony payments being made to her by the Plaintiff. The Appellate Court reversed the decision of the lower court. The parties in this case were married in 1984 and obtained a divorce in 2008. One child was born during the marriage. The parties executed a property settlement agreement (PSA) that was incorporated into their final divorce judgment which required the Plaintiff to pay $600 a month in alimony to the Defendant until their child was emancipated, and then the alimony was to increase to $950 a month. The PSA also specified that if the circumstances between the parties changed, they would come to an agreement with respect to the change or make an application to the court to resolve the dispute. In 2009, the Defendant began living with another man and the Plaintiff stopped making his alimony payments. In 2010, the Plaintiff filed a motion to terminate his alimony obligation altogether. In 2012, the parties executed a Consent Order in which the Plaintiff agreed to pay $375 a month for alimony until further Order of the court or consent of the parties. In 2014, the Plaintiff filed a Motion to emancipate the parties' daughter and for the termination of his alimony obligation due to the Defendant's six (6) years of cohabitation. The Defendant filed a cross-motion for alimony payments of $950 as was originally set forth in the PSA. The Plaintiff also claimed that his financial circumstances had changed and he was making much less than money than when the parties divorced. The Family Court judge granted the request to emancipate the parties' daughter but denied the motion to terminate alimony. Further, the Defendant's motion for an increase in alimony to $950 was also denied, and the Plaintiff was required to continue paying $375 a month. According to the Appellate Division, it needed to determine if each party presented a prima facie case of changed circumstances to warrant a termination or modification of alimony. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Both parties were seeking a change in alimony. The PSA provided that if the circumstances between the parties were to change, they could come to an agreement or request that the court make a determination. The Consent Order was an agreement between the parties to change the alimony amount at that specific time until they either came to a new agreement or a Court Order modified the amount. The Appellate Division held that both parties had provided sufficient financial information for the Family Court to order appropriate discovery and make detailed findings of fact as to a new alimony determination. Therefore, it reversed the decision of the Family Court and remanded the case back there for further proceedings to determine an appropriate alimony obligation. Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Child Support Modification Sought As Father's Income Decreased And Mother's Increased

In the recent post judgment Appellate Division case, Bigge v. Walker, the Plaintiff appealed from a 2013 Family Court Order that denied his Motion to modify his child support and life insurance obligations. The Appellate Division reversed the decision of the lower court. The parties involved in this case were married in 1987 and subsequently divorced in 1999. One child was born of the marriage in 1991. The parties' divorce judgment directed that the Plaintiff was to pay $105 a week in child support plus an additional $45 a week toward an arrears that had accumulated after they separated. The amount was determined by the parties without using the NJ Child Support Guidelines. In addition, the divorce judgment required that the Plaintiff maintain $100,000 in life insurance to secure his child support obligation. In 2013, the Plaintiff filed a Motion to modify his child support obligation because his work was not steady and he was often unemployed and as a result he fell into arrears. He further asserted that he was suffering from severe health problems and had recently undergone a triple bypass heart surgery which impeded his ability to work. In 2010, he had got a job working in a mail room an earned $26,955 a year as of 2012. In 2013, the Family Court denied the Plaintiff's Motion to modify his child support. The Plaintiff appealed. According to the Appellate Court, child support orders are subject to modification pursuant to N.J.S.A. 2A:34-23 and based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). A Family Court motion judge may modify a child support obligation when the party seeking the alteration satisfies the burden of showing a change in circumstances. Dramatic changes in the income or earning capacity of either party, or in the circumstances of their children due to events such as attending college, may result in a finding of a changed circumstance. Colca v. Anson, 413 N.J. 405, 415-16 (App. Div. 2010). In this case, the Appellate Division found that the Family Court judge mistakenly exercised his discretion when he denied the Plaintiff's Motion to modify his child support as his income had been significantly reduced while the Defendant's income had increased. Therefore, the Appellate Division was satisfied that the Family judge did not make adequate findings with respect to the Plaintiff's child support obligation and life insurance requirement and the decision was reversed and remanded back to the Family Court for further proceedings. If you anticipate that you may want to petition the court for a post-judgment modification of your 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, divorce, child support, 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.

Equitable Distribution Impacts Alimony Calculation

In the recent Appellate Division case, Overbay v. Overbay, the Defendant Mary Ellen Overbay appealed from a 2013 Family Court Order that reduced her alimony award and the amount of life insurance that her ex-husband, the Plaintiff Bruce Overbay, must maintain for her benefit as part of the process of equitable distribution. The parties in this case were divorced in 2002 following a thirty-one year marriage. All three (3) of their children were emancipated at the time of their divorce. The Plaintiff is currently seventy years old and the Defendant is sixty-seven. At the time of their divorce, the Plaintiff was working for ExxonMobil earning $132,000 per year. The Defendant was not in good health at the time of the divorce and was teaching two classes at Seton Hall University and earned $12,000 a year. Given her significant medical problems, the judge found that her "future employability [was] uncertain." The court ordered equitable distribution and determined that the Plaintiff should pay to the Defendant $3,000 a month in alimony. Both parties appealed and the Appellate Court affirmed on all issues regarding equitable distribution but remanded for a re-calculation of alimony. Following a hearing, the Family Court judge ordered the Plaintiff to pay $3,750 a month in alimony and again the parties appealed. Again, the Appellate Court reversed the lower court's decision and reinstituted the Defendant's monthly budget to reflect $8,000, according to Rule 2:10-5. The Appellate Court then remanded back to the Family Court to modify the alimony award consistent with its ruling. Shortly thereafter, the Plaintiff filed a Motion for a downward modification of his alimony obligation based upon a reduction in his salary. The judge found that the Plaintiff had "proven a substantial and permanent change in circumstances based upon a change in employment at a reduced salary" and that the Defendant had a "decrease in the amount of alimony needed due to an increase in her income." In 2013, the Plaintiff's alimony obligation was reduced to $1050 a month and reduced the amount of life insurance that the Plaintiff had to maintain to $150,000. This appeal followed. The Appellate Court found that in determining an award of alimony, N.J.S.A. 2A:34-23(b) directs that a court should consider a set of statutorily defined factors to determine the obligation amount. The goal of an alimony award is to help the supported spouse to achieve a reasonably comparable lifestyle to what was enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). A judge may modify alimony based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). "In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999). However, this is only one factor that is considered and other factors such as personal assets and capacity to earn should also be considered. The Appellate Division then re-calculated the Plaintiff's alimony obligation retroactively to compensate for the slow decline in his salary and ordered that from 2013 forward he pay $2,000 a month in alimony and have to pay arrearage amounts pursuant to an established schedule. The equitable distribution of assets and alimony are of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts or alimony it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony contested divorce, uncontested divorce, spousal support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way 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.

Evidentiary Hearings Are Required In Child Custody Cases If There Is A Genuine Factual Dispute

The New Jersey Appellate Court recently ruled that evidentiary hearings are required in child custody cases if there is a genuine factual dispute. In the matrimonial case, M.H.S. v. L.G.S., the Defendant appealed multiple orders of the Family Court that permitted unsupervised overnight visitation to the Plaintiff, her husband; transferred temporary custody of the couple's infant to her husband; and denied her petition for a stay. In her appeal, the Defendant claimed that the aforementioned orders were issued without an evidentiary hearing to decide the Defendant's belief that her child was at risk because her husband was addicted to internet pornography of an incestuous nature. The New Jersey Appellate Court held that the Family Court erred in failing to conduct an evidentiary hearing based upon the Defendant's accusations and ordered changes in parenting time and custody despite the serious allegations. In its opinion, the Court reversed the lower court's orders and remanded the case back down to the trial court to conduct an evidentiary hearing. In order to establish a need for an evidentiary hearing in a custody or parenting time dispute, a party must demonstrate that a genuine issue of material fact exists according to Segal v. Lynch and Lepis v. Lepis. A plenary hearing is required if there is evidence that demonstrates that a genuine and substantial factual dispute regarding the welfare of a child. The trial judge determines if such a hearing is necessary upon a review of the evidence presented. In this case, the Defendant submitted evidence obtained from the Plaintiff's computer that listed a series of pornography websites that he had visited. The Defendant also submitted screenshots of these sites. The Appellate Court determined that this evidence was enough to warrant an evidentiary hearing. During or after divorces parenting time and custody battles can be extremely complicated and emotionally exhausting. Further, when emotions run high such battles can become very adversarial. If you are engaged in a custody and parenting time dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information about custody, visitation, parenting time, divorce, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Clear Proof Of Changed Circumstances Is Needed To Win Motion To Modify Support Obligation

The NJ Appellate Court recently found the Defendant had made a prima facie showing of changed circumstances that would allow him to proceed with his motion for a modification of his support obligations. In DeRosa v. DeRosa, the Defendant owned his own business for installing sprinkler systems for homeowners and provided proofs that the business had experienced a substantial decline in sales revenue from 2006, to 2010, 2011, and 2012. Under the seminal case of Lepis v. Lepis, the court set forth the standard that a prima facie showing of changed circumstances is required to modify support. In DeRosa, the Trial Court denied Defendant's Motion without the benefit of a hearing wherein the Defendant would be permitted to provide evidence and testimony regarding changes circumstances. The Appellate Court remanded the matter to the Trial Court to follow the procedures set forth in Lepis. These cases are determined on a case by case basis which leads to non-uniformity in the court's decisions on cases which may seem similar in nature. The party seeking the modification bears the burden of establishing the prima facie showing of a genuine change of circumstances that is not a mere temporary change but substantial and long-term in nature. It may be due to loss of job by either spouse, decreased income to either spouse, increased income to either spouse, disability of either spouse, increase in cost of living, or the dependent spouse's cohabitation with a paramour. Once it has been established that a substantial change of circumstances exists, the Court will order discovery of all financial documentation and a hearing will take place. If you want to seek a modification of support, are owed support, want to establish or terminate support or if you have been served papers regarding a support issue then you should consult with an experienced family law attorney to protect your rights. For more information about support, child custody, divorce, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Child Support Obligations Upon Change of Custody

In the recent case of Wong, Jr. v. Wong, the Appellate Court, in its unpublished opinion, reversed the trial court's order obligating the Plaintiff-father to continue to pay child support to the Defendant-mother and denial of request for child support from Defendant-mother after the granting of a change of custody whereby the parties' son began living with the father. The trial court had ruled that a prior consent order between the parties whereby the Plaintiff-father waived his right to seek modification of his child support obligation for any reason and Defendant-mother waived her right to receive any further alimony prevented Plaintiff-father from seeking a subsequent termination of his child support obligation and a request for child support from Defendant-mother. The parties agreed to the terms in the consent order after plaintiff-father fell behind on his support payments due to a loss of employment. The Appellate Court cited to Lepis v. Lepis, 83 NJ 139 (1980) and the holding in Morris v. Morris, 263 N.J. Super. 237(App. Div. 1993) to support its finding that although a waiver to any future modification of support may be enforceable for specific limited reasons, the court can change an agreement if it finds equity requires it. It further found that the language of the parties' consent order does not indicate that when it was negotiated the parties considered the possibility of a transfer of custody which is a change of circumstances that warrants a look into the financial circumstances of the parties and a running of the child support guidelines worksheet. Therefore, it was appropriate to remand the matter to the trial court. Plaintiff-father did not challenge the denial of his application for child support from defendant-mother in his appeal but only the denial of his request to terminate his child support obligation. The Appellate Court held that on remand the trial court must consider the needs of the child, the parties' consent order, and the financial circumstances of the parties prior to determining whether or not Plaintiff-father should be permitted to waive child support from Defendant-mother. If you are owed or paying child support, have experienced a change of circumstances which may allow for a modification of child support, of if you have been served papers regarding a child support issue then you should consult with an experienced family law attorney to protect your rights. For more information about child support, child custody, divorce, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.