BARBARA ZAHL v. JAMES ZAHL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3881-08T23881-08T2

BARBARA ZAHL,

Plaintiff-Respondent,

v.

JAMES ZAHL,

Defendant-Appellant.

_______________________________________

Argued telephonically February 9, 2010 - Decided March 4, 2010

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-255-92-A.

James Zahl, appellant, argued the cause pro se.

Barbara Zahl, respondent, argued the cause pro se.

PER CURIAM

Defendant James F. Zahl appeals from an order entered by the Family Part on March 11, 2009, which denied his motion to reduce or eliminate his child support obligation and require plaintiff Barbara Zahl to bear a portion of the cost of their son's health insurance. We affirm.

The following facts are pertinent to our decision. The parties' were married in 1988. One child was born of the marriage. The marriage was dissolved by a final judgment of divorce filed on March 19, 1993, which incorporated the parties' property settlement agreement (PSA). The PSA provided, among other things, that the parties would enjoy joint legal custody of their child; plaintiff would have primary physical and residential custody of the child; and defendant would pay child support in the amount of $200 per week until the child's emancipation. The PSA additionally required defendant to "maintain hospital, medical and major medical insurance, or its equivalent, for the benefit of the unemancipated child born of the marriage."

In December 2008, defendant filed a motion in the trial court to reduce or eliminate his child support obligation and require plaintiff to pay a share of the cost of their child's health insurance. Defendant said that relief was warranted due to changed circumstances. Defendant asserted that in 2005, he was forced to relocate to Florida and pursue a new career in the yacht brokerage business. It appears that, at some point, defendant remarried and fathered another child.

Defendant stated that in the fall of 2008, the parties' child left home and became a full-time college student. Defendant additionally stated that his annual income had been "dramatically reduced" in the period from 2006 through 2008. He said that he had been making less than $10,000 per year for the previous three years and had completely depleted his savings. Defendant also said that his home was in foreclosure and he was supporting his new family with the financial assistance of certain family members.

Plaintiff filed a cross-motion to enforce litigant's rights. She sought an order compelling defendant to maintain personal life insurance in the amount of $150,000, designating their child as the beneficiary, which was required by the PSA. Plaintiff also sought an order requiring defendant to contribute towards the child's college costs, which also was required by the PSA. In addition, plaintiff sought an order requiring defendant to reimburse the child $13,000, which defendant allegedly withdrew from the child's college fund.

The trial court heard the motions on March 6, 2009, and placed its decision on the record on March 11, 2009. The court found that defendant had not "demonstrated a permanent change in circumstances" warranting relief from his financial obligations. The court noted that defendant said that he was employed as a "yacht broker" but had not presented sufficient evidence, by way of documentation, to show that "this particular niche of work . . . has suffered significant decline." The court also noted that "if the conditions in the yacht brokerage business are as defendant perceives them to be, . . . he has not looked to move away from that income area to another line of work."

The court additionally found that the change in the child's status did not warrant a reduction in child support. The court noted that, although the child divides his time between his mother's home and college, this should not affect defendant's obligation to pay child support particularly since the child was not, as yet, emancipated. The court further found no basis to require plaintiff to contribute towards the cost of the child's health insurance.

The court also determined that defendant must continue to maintain personal life insurance in the amount of $150,000 and contribute towards the child's college costs, as required by the PSA. However, the court denied plaintiff's motion to compel defendant to reimburse the child $13,000. The court noted that there was no evidence to support plaintiff's allegation that defendant had taken these monies from the child's college fund. The court entered an order dated March 11, 2009, memorializing its decisions on the motions. This appeal followed.

Defendant argues that the trial court erred by denying his motions. He maintains that he presented sufficient evidence to show a permanent change in circumstances warranting a reduction or elimination of his child support obligation and a sharing of the cost of the child's health insurance. We disagree with these contentions and affirm substantially for the reasons stated by the trial court in the decision placed on the record on March 11, 2009. We add the following brief comments.

A party seeking modification of a support obligation "has the burden of showing such 'changed circumstances" as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)). The "party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Ibid. However, modification of a support obligation is not warranted if the change in circumstances is "only temporary" or is "expected but [has] not yet occurred." Id. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)).

Here, defendant established that he suffered a diminution in income but failed to demonstrate that the change is permanent. He also failed to establish, through the submission of competent evidence, that his field of endeavor was suffering a permanent decline. In addition, defendant did not establish that he could not earn up to his full incoming-earning potential in some line of work other than in the yacht brokerage business or even that he had tried to find other employment.

As the trial court found, the burden was on defendant to show a permanent change in circumstances sufficient to warrant relief from his financial obligations. In our view, the trial court correctly determined that defendant failed to carry his burden.

Affirmed.

 

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