KATHLEEN J. LUCCI v. MICHAEL A. LUCCI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2918-07t32918-07T3

KATHLEEN J. LUCCI,

Plaintiff-Respondent,

v.

MICHAEL A. LUCCI,

Defendant-Appellant.

_______________________________________

 
Argued telephonically January 12, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-299-99.

Michael J. Evans argued the cause for appellant (Law Offices of G. Dolph Corradino, attorneys; Mr. Evans, on the brief).

Roy R. Claps argued the cause for respondent (Pennella & Claps, attorneys; Mr. Claps, on the brief).

PER CURIAM

Defendant appeals from orders entered by the Family Part on February 1, 2008, which reinstated his alimony obligation, retroactive to June 14, 2004; ordered defendant to pay the arrears in weekly installments; awarded plaintiff counsel fees and costs; and denied without prejudice defendant's motion to terminate alimony. For the reasons that follow, we affirm in part and reverse in part.

The following facts are relevant to our decision. The parties were married on January 8, 1983. Their marriage was dissolved by a final judgment of divorce filed on May 23, 2000. The judgment incorporated the parties' Inter-Spousal Agreement (ISA or agreement), dated May 23, 2000. The ISA provided, among other things, that defendant would pay plaintiff rehabilitative alimony in the amount of $300 per week for ten years and $100 per week for five years thereafter. The ISA further provided that defendant would pay child support for the parties' two children. The child support worksheet attached to the agreement indicated that defendant's gross annual income was $75,556 and plaintiff's gross annual income was $18,356.

On March 28, 2004, defendant filed a motion to terminate his obligation to pay child support and to terminate or reduce his alimony obligation. On April 30, 2004, the trial court entered a consent order that terminated defendant's child support obligation as of March 28, 2004. The order also reduced defendant's alimony payments from $300 to $150 per week, as of March 28, 2004, "as a result of a material change in [defendant's] financial circumstances." The consent order stated that:

[s]aid alimony shall remain at that level without prejudice to the right of either party to file an additional post-judgment motion to restore alimony to its prior level or to reduce alimony to a lower level based upon [d]efendant's future increases or decreases in earned income compared to his level of income at this time. Defendant shall promptly advise [p]laintiff of any changes in his employment compensation in the future and he shall provide her with his W-2 form each year so long as an alimony obligation exists pursuant to the Agreement incorporated in the Final Judgment of Divorce[.]

The order additionally stated that "all further aspects of [the] alimony payments" as contemplated by the ISA, including the reduction as of June 2010 and the elimination of alimony as of June 2015 "shall remain in full force and effect[.]"

In January 2005, defendant filed a motion seeking to terminate temporarily his alimony obligation. In a certification dated January 5, 2005, submitted in support of that motion, defendant asserted that, after the divorce, his "employment situation has steadily deteriorated." He stated that he lost his job at Acupac Packaging (Acupac) in April 2003, and thereafter started to look for another job, while collecting unemployment benefits of $938 every two weeks.

Defendant said that, in August 2003, he was hired by Brisar Industries (Brisar) at a salary of "approximately, $50,000 gross per year." Defendant asserted that he hoped to continue working at Brisar and find another job with a salary comparable to what he had been earning previously; however, defendant was laid off in October 2003, and he began to collect unemployment benefits in the amount of $933 every two weeks.

Defendant additionally stated that, in December 2003, he found a job with Intercos America, Inc. (Intercos) as an inventory analyst earning a gross annual salary of "approximately" $32,000. Defendant noted that, at the time of the divorce, he was working as a plant manager. Defendant asserted that he had been "effectively reduced" to employment as an inventory analyst. He said that he was "certain" that his age and economic circumstances after September 11, 2001 had adversely affected him and the manufacturing industry in which he was employed.

Defendant also stated that he filed his motion to terminate child support and terminate or reduce his alimony obligation in March 2004 because his children were emancipated by that time, and he realized that his then-current employment situation was not going to be temporary. He noted that the court entered a consent order on April 30, 2004, which terminated child support and reduced his weekly alimony obligation from $300 to $150. Defendant asserted that in July 2004, he lost his job at Intercos and, since that time, he had been collecting unemployment benefits in the amount of $933 every two weeks but those benefits were due to run out in January 2005.

On February 4, 2005, the court entered a consent order suspending defendant's alimony obligation as of January 10, 2005

and until such time as Defendant becomes re-employed, self-employed and/or obtains additional unemployment compensation or disability payments, at which time the alimony payable by [d]efendant to [p]laintiff shall be restored to the sum of $150 per week if prior to June, 2010, or the sum of $100 per week if on or after June, 2010, as set forth in the Consent Order filed April 30, 2004. Such automatic restoration of alimony shall be without prejudice to the right of either party to file an additional post-judgment motion to either restore alimony to the levels set forth in the [ISA] or to reduce alimony to a lower level based on [d]efendant's increases or decreases in income compared to his level of income on April 16, 2004.

The court's February 4, 2005 order additionally stated that, as long as the order remains in effect and the term of alimony in the parties' ISA has not expired, defendant shall "promptly provide [p]laintiff with written notice of any change in his employment and/or income from all sources" and provide copies of all W-2 forms as well as the sources of all earned and unearned income.

In November 2007, plaintiff filed a motion to enforce her rights as a litigant and for post-judgment relief. In a certification filed in support of that motion, plaintiff recounted the circumstances that led to the entry of the April 30, 2004 and February 4, 2005 consent orders.

Plaintiff asserted that she had recently obtained a copy of defendant's current resume, which indicated that he had been employed by Advanced Forklifts, LLC (Advanced Forklifts) since 2003 as a sales/service representative. She said that defendant's resume "blatantly contradicts all documents, representations, and sworn certifications" that defendant had previously provided to the court and her attorney.

Plaintiff additionally stated that she believed defendant had "intentionally perpetrated a fraud upon" her and the court in the previous three years because defendant had been employed in that time and he was "fully able" to pay alimony in accordance with the final judgment of divorce and the ISA. Plaintiff asserted that she was "struggling financially" and was living "paycheck to paycheck." She said that she was "in dire need of restoration of the alimony" that had been "bargained for and agreed upon" at the time of the divorce.

Defendant opposed the motion and filed a cross-motion seeking an order terminating his alimony obligation. In his certification, defendant reiterated many of the statements he made in the certification that he filed in January 2005. He said that, at the time of the divorce, he had been employed by Acupac at a salary of "approximately" $75,556 per year but he lost that job in April 2003. Defendant stated that he was hired by Brisar in August 2003 at a gross annual salary of "approximately" $50,000, but he was laid off by Brisar in October 2003.

He also said that he obtained a job at Intercos in December 2003 at a gross annual salary of "approximately" $32,000, but lost that job in July 2004. Defendant provided a copy of his tax return for 2003, upon which he reported income of $75,696, and his tax return for 2004, upon which he reported income of $31,744.

Defendant further asserted that he was unemployed throughout the remainder of 2004, despite what he said were "constant and substantial efforts to obtain employment." Defendant stated that in 2006, he obtained employment with Advanced Forklifts as a salesman at a salary of $600 gross per week, plus commissions. Defendant provided a copy of a W-2 statement he received from that employer, which indicated that he had earned $44,701.08 in 2006.

Defendant also stated that he remained employed by Advanced Forklifts until September 15, 2007. According to defendant, the company "closed its doors" and he collected unemployment benefits from September 15, 2007 to October 20, 2007, in the amount of $536 per week.

Defendant further asserted that, on October 22, 2007, he obtained a job with Liftec Incorporated (Liftec) as a salesman. He said that he remained employed by Liftec, earning $461.54 gross per week, plus commissions and an allowance for a car. Defendant estimated that his total gross income for 2007 would be $30,000.

Defendant additionally stated that he had "forgotten" about the provisions of the 2004 and 2005 consent orders which required that he disclose information about any change in his employment status. He denied that he had perpetrated a fraud upon plaintiff or that the court's orders had been entered based upon false information. He asserted that the statement in his resume that he had been employed by Advanced Forklifts since 2003 was false.

Defendant also said that his current income was substantially below the income he had been earning at the time of the divorce. He stated that plaintiff had earned more than he did in 2007, and he anticipated that she would earn $52,000 plus overtime in 2008, while he would only earn $24,000, plus commissions and the car allowance. Defendant asserted that, under these circumstances it was unreasonable to require him to continue to pay alimony to plaintiff.

In response, plaintiff filed a certification by Thomas Schultz (Schultz), the owner and managing member of Advanced Forklifts. In his certification, Schultz asserted that certain statements in defendant's certification "are both intentionally misleading and materially false." Schultz said that defendant was first employed by Advanced Forklifts in June 2004 as an independent contractor and he worked continuously for the company until September 2007. According to Schulz, Advanced Forklifts paid defendant $11,200 in 2004 and $33,000 in 2005.

Schultz said that, beginning in January 2006, Advanced Forklifts employed defendant as a salaried employee and paid him $45,681.08 in 2006. Defendant continued his full-time employment from January 1, 2007 to September 14, 2007, and earned a total of $32,117.76 in that time. According to Schultz, in the fall of 2007, the company sold some of its customer accounts to Liftec and, as part of the transaction, Liftec continued the employment of many of Advanced Forklifts' employees, including defendant. Schultz added that defendant:

was employed on a full-time basis by Advanced Forklifts, LLC from June 2004 through September 2007 and he currently remains so employed by Liftec, Inc. If his income tax returns for 2004 and 2005 do not reflect such earned income, it is because he omitted reporting said income to the IRS and State of New Jersey. I now note that the social security number . . . which he provided to our payroll department in 2004 and 2005, when he was an independent contractor, is slightly different than the social security number . . . which he provided for 2006 and 2007 when he was an employee.

Schultz also stated that that it appeared that defendant had applied for and received unemployment compensation benefits for the second half of 2004 while he was employed by Advanced Forklifts as an independent contractor.

Defendant then filed what he called a "replacement" certification. He conceded that he had obtained employment with Advanced Forklifts in July 2004 as a salesman/independent contractor. He admitted that, in his January 2005 motion, he failed to mention his employment with Advanced Forklifts or the income that he was earning there. He also stated that he had not disclosed these facts to his attorney.

Defendant said that the 2005 consent order had been based upon "incomplete information" and he agreed that the 2005 consent order should be vacated. He asserted, however, that the 2004 consent order had been based upon "true and accurate information" and that order should remain in full force and effect through February 1, 2007 and his alimony obligation should be terminated as of that date.

The trial court considered the motions on February 1, 2008, and placed its decision on the record on that date. The court noted that, based on the information provided in the certifications, it had written to the Internal Revenue Service (IRS), the State's Division of Taxation, the Sussex County Prosecutor and the Social Security Administration, to report defendant's conduct. In its letter, the court stated that certifications filed with the court indicated that there were inconsistencies between the amounts that defendant reported on the tax returns and the defendant's history of earnings; defendant had used two social security numbers; and defendant had apparently received unemployment benefits while he was employed.

The court found defendant in violation of litigant's rights because he failed to provide plaintiff with updated information regarding his employment and earnings, as required by the court's orders. The court found defendant in contempt of court. The court also found that defendant should have been paying alimony from June 2004, when he became employed at Advanced Forklifts.

The court ordered reinstatement of alimony in the amount of $300 per week as of June 14, 2004, found that the arrears totaled $52,200, and ordered defendant to make partial weekly payments of the arrears. The court awarded plaintiff attorneys' fees and costs in the amount of $3,595.

The court also denied defendant's motion to terminate alimony without prejudice. The court stated that defendant had not provided sufficient information concerning his lifestyle or his earnings and, therefore, the court could not rule on the application. Orders were entered memorializing the court's determinations and this appeal followed.

Defendant argues that the trial court erred by imposing retroactive alimony as a "punitive device," which he contends was contrary to the statute governing the award of alimony, N.J.S.A. 2A:34-23. Defendant also argues that the trial court's failure to consider and apply the statutory factors in N.J.S.A. 2A:34-23 requires reversal of the court's order restoring alimony.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). The findings of the trial court are considered binding on appeal when they are "supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova
Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Furthermore, we "accord deference to family court factfinding" because the Family Part has "special jurisdiction and expertise in family matters[.]" Id. at 413.

Here, the record clearly supports the court's finding that defendant violated the terms of the April 30, 2004 and February 4, 2005 consent orders by failing to provide plaintiff with notice of any change in his employment status and income, as well as copies of his W-2 forms and other documentation regarding his earned and unearned income. It is now undisputed that, shortly after the 2004 order was entered, defendant obtained employment with Advanced Forklifts. Defendant was obligated by the 2004 and 2005 orders to provide that information to plaintiff promptly, along with documentation regarding his income. He clearly failed to comply with the court's orders.

The record also shows that the February 4, 2005 consent order suspending defendant's alimony obligation had been entered based on defendant's false and misleading statements. In his January 5, 2005 certification, defendant stated that he became unemployed in July 2004 and the only income he received after that date was unemployment benefits. Defendant reiterated these statements in his December 20, 2007 certification. He asserted, however, in his so-called "replacement" certification that his earlier statements regarding his employment and income were "incomplete." Defendant's statements were not simply "incomplete." They were patently false.

We are convinced, however, that the record before the trial court does not warrant full restoration of alimony as of June 14, 2004. In our view, the record only justified restoration of alimony in the amount of $150 per week, as of January 10, 2005. As we stated previously, the weekly alimony payments had been reduced by the April 30, 2004 consent order from $300 to $150, and suspended by the February 4, 2005 order.

Defendant has essentially conceded that the February 4, 2005 consent order was entered based on his false and misleading statements. The record therefore supports the vacation of that order, thereby restoring alimony in the amount of $150 per week as of January 10, 2005. We note that this was the relief that plaintiff sought in her motion in aid of litigant's rights. Moreover, in his "replacement" certification, defendant agreed that the February 4, 2005 consent order should be vacated.

We reject defendant's assertion that the trial court erred by failing to consider and apply the factors in N.J.S.A. 2A:34-23 in deciding whether to reinstate alimony. Here, the trial court was not concerned with the award of alimony. Rather, the court was called upon to decide whether defendant's failure to comply with its prior orders and his false statements warranted restoration of the alimony initially agreed upon by the parties. Furthermore, defendant failed to provide the court with sufficient information to warrant a decision on his motion to terminate alimony. Therefore, the trial court was not required to consider the factors under N.J.S.A. 2A:34-23 in deciding whether to reinstate defendant's alimony obligation.

Although we conclude that restoration of alimony of $150 per week as of January 10, 2005 was warranted here, the record does not support restoration of alimony in the amount of $300 as of June 14, 2004. Although defendant violated the April 30, 2004 order by failing to disclose his employment with Advanced Forklifts, we cannot say based on this record that alimony in the amount of $300 would have been restored had that information been disclosed in a timely manner.

Moreover, the present record does not establish that the April 30, 2004 consent order was based on any false and misleading statement by defendant. According to defendant, the reduction in alimony agreed upon by the parties in 2004 was based upon the fact that he had been earning about $75,000 per year at the time of the divorce but was only earning about $32,000 per year in 2004 at Intercos. It would appear, therefore, that the fact that defendant lost his job at Intercos in July 2004 and was hired at about that time by Advanced Forklifts would not have altered the basis upon which the parties had agreed to the reduction in alimony.

Nevertheless, we are not inclined to accept defendant's assertions about his income at face value, particularly in view of his admitted failure to disclose his employment by Advanced Forklifts; his apparent use of two separate social security numbers; his apparent receipt of unemployment compensation benefits at the time he was working; his filing of what may have been false tax returns; and his admitted filing of false and misleading certifications with the trial court.

We therefore conclude that plaintiff should be afforded an opportunity to further explore defendant's earnings in 2004 and to establish that the reduction in alimony from $300 to $150 per week was based upon false and misleading statements by defendant. We remand to the trial court for discovery and for a plenary hearing on that issue, if the evidence so warrants. If the trial court determines that the reduction in alimony in 2004 was due to any false and misleading statement by defendant, the court may vacate the April 30, 2004 consent order and reinstate alimony in the amount of $300 as of March 28, 2004.

We are further convinced that the full amount of counsel fees and costs awarded by the trial court should be affirmed. Although we have determined to reverse in part the order reinstating alimony, we are satisfied that plaintiff obtained sufficient relief in her motion in aid of litigant's rights to warrant the full award of counsel fees and costs.

We additionally note that, in his brief, defendant has not addressed the provision of the order denying his motion to terminate alimony without prejudice. Any challenge to that provision of the order is therefore deemed waived. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008).

To summarize our decision, we affirm the court's order to the extent that it restores alimony in the amount of $150 per week as of January 10, 2005, and direct the trial court to recalculate the arrearages in accord with that determination. We remand the matter to the trial court for discovery and a plenary hearing on whether the April 30, 2004 consent order was entered based on any false and misleading statement by defendant and whether alimony in the amount of $300 per week should be reinstated as of March 28, 2004. We also affirm the award to plaintiff of counsel fees and costs and the denial without prejudice of defendant's motion to terminate alimony.

Affirmed in part, reversed in part, and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

We have been advised that in May 2008, defendant filed a motion in the trial court to terminate and/or reduce alimony. The trial court denied the motion by order filed on June 20, 2008. We note that, because this appeal was pending, the trial court did not have jurisdiction to consider the motion. R. 2:9-1(a).

(continued)

(continued)

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A-2918-07T3

January 30, 2009