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.

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.