MARY K. BERGER v. BRUCE K. BERGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6113-08T26113-08T2

MARY K. BERGER,

Plaintiff-Respondent,

v.

BRUCE K. BERGER,

Defendant-Appellant.

 
 

Submitted May 5, 2010 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2035-07.

Bruce K. Berger, appellant pro se.

Thomas W. Williams, attorney for respondent.

PER CURIAM

Defendant Bruce K. Berger appeals from the June 26, 2009 Family Part amended order granting plaintiff Mary K. Berger's post-judgment motion to enforce litigant's rights while denying defendant's cross-motion for modification of his obligations to pay alimony and to provide life insurance. We affirm.

On July 10, 2007, plaintiff and defendant dissolved their marriage of twenty-six years. They entered into a Property Settlement Agreement (Agreement) that was incorporated into the final judgment of divorce. Pursuant to the Agreement, the parties agreed that alimony would be paid by defendant to plaintiff in the amount of $48,000 per year (in monthly increments of $4,000) and that defendant would also maintain a life insurance policy in the sum of $500,000, naming plaintiff as beneficiary.

Beginning in May 2009, defendant failed to meet his alimony obligations. Instead of filing a motion seeking modification, he unilaterally reduced the monthly payment to $500, but then later increased it to $1,000. In response, plaintiff filed a post-judgment motion seeking to enforce the terms of the Agreement requiring the agreed-upon $4,000 per month in alimony and proof of the existence of the life insurance policy. Only then did defendant file a cross-motion to decrease his alimony to $1,500 per month and modify the life insurance obligation to $250,000.

Defendant presented a Case Information Statement dated January 1, 2009, which indicated his net income for 2008 was in the amount of $91,636. For 2009, defendant claimed his annual salary was $69,600, but that he was also withdrawing retained earnings from a closely held corporation Metal Partners, Inc. to supplement his earned income. He also received the benefit of a corporate leased motor vehicle a Mercedes paid at the rate of $679 per month by defendant's business.

Defendant explained that he was trying to weather the economic storms of 2008 and 2009 by, among other things, attempting to diversify his core business by offering fabricated metal products to homeowners and businesses through a retail location in Ridgewood known as Architectural Metal Concepts. He indicated that he had to invest $60,000 in the new venture, which was generating revenue at a much slower rate than anticipated. Defendant also stated that his businesses suffered steep declines in sales, the value of inventories, and the ability to collect account receivables.

The Family Part judge expressed skepticism over the accuracy of defendant's financial data when she commented, "my problem is that it doesn't add up for me." For instance, the court noted that defendant's indicated income was clearly insufficient to cover his debt service including a $3,108 per month mortgage causing "pause and concern as to what your real gross income is and the amount that you're bringing home to be attributed to you." Ultimately, the Family Part stated to defendant:

I mean you're current on your debts, so that means you've paid your car, you've paid your mortgage, you've paid your electricity, and you tell me you're making less than $2,000 a month and yet you're paying for yourself more than [$]4,000, so that inures to me that what you've submitted to the Court is not credible and how can this Court substantiate a modification when what you have set forth before me as the terms for a modification [does not] add up under your own documents that you submitted?

In response, defendant argued that the court was confusing asset reduction with income, and that he was depleting assets from his allegedly insolvent business ventures to fund his now-unfair alimony obligation. The Family Part judge was still unconvinced, stating, "I don't see that you were very forthcoming." After reviewing the parties' financial conditions at the time they originally negotiated the Agreement, the court commented that it would be "speculative to go for a reduction now when business could yield more money this year than [defendant is] projecting."

After oral argument, the Family Part entered an order on June 26, 2009, directing defendant "to pay alimony for May [2009] and each month thereafter in the amount of $4,000.00." In addition, the court required defendant to "provide the plaintiff with proof of life insurance in the amount of $500,000, naming the plaintiff as beneficiary within [twenty] days of this order." At the same time, the court denied defendant's cross-motion.

As part of its written rationale for the entry of this order, the Family Part stated:

The Defendant also has failed to make a documented financial demonstration that a reduction of alimony is warranted. Therefore, the Defendant may re-file an application for modification in [six] months if the temporary situation is unchanged and shall provide further demonstration of a change of financial circumstances including personal and business tax returns and business evaluations. In addition, according to his Case Information Statement, the Defendant's material obligations are greater than his alleged gross income[,] which indicates that remuneration from his self-owned businesses are also greater than the Defendant reports.

Defendant now takes issue with several of the Family Part's determinations, including its ad hoc six-month moratorium on prosecuting applications for alimony modification. On appeal, defendant contends that the Family Part order should be reversed, arguing the following points:

Point Heading I

THE TRIAL COURT ERRED IN ITS EVALUATION OF FINANCIAL DOCUMENTATION PRESENTED WITH DEFENDANT'S CERTIFICATION AND DURING ORAL ARGUMENT.

Point Heading II

THE TRIAL COURT ERRED IN ITS EVALUATION THAT THE CHANGE IN THE DEFENDANT'S FINANCES ARE TEMPORARY.

Point Heading III

THERE WAS SUFFICIENT DOCUMENTATION PRESENTED IN THE CERTIFICATION AND ORAL ARGUMENT TO SATISFY PRIMA FACIE.

Point Heading IV

A SIX MONTH LIMITATION TO FILE A NEW MOTION OR REHEARING WITH ADDITIONAL EVIDENCE IS IN CONFLICT WITH CASE LAW AND N. J. STATUTE LAW.

We are not persuaded by any of these points and conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(1)(E).

A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This is especially true in the Family Part, which has "special jurisdiction and expertise in family matters." Id. at 413. "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless it is convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Taken as a whole, we understand the Family Part's oral comments, credibility findings, and written rationale to reach the conclusion that defendant failed to meet his burden of a prima facie showing that his recent business setbacks were a significant change of circumstances warranting modification of support. See Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002).

In like vein, a decision regarding the modification of support obligations due to changed circumstances "rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)). See also Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). On appeal, the court should not disturb that decision "absent an abuse of discretion." Id. at 23.

Against this standard, we would be remiss if we failed to observe that it is a long-acknowledged policy in New Jersey to favor consensual agreements that were made to resolve marital controversies. Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). "The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistently with their post-marital responsibilities." Id. at 193. Therefore, "'fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Id. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).

Nonetheless, we recognize that it is equally well-established that "[s]pousal support agreements are always subject to modification pursuant to N.J.S.A. 2A:34-23[,] upon a showing of changed circumstances." Deegan v. Deegan, 254 N.J. Super. 350, 354 (App. Div. 1992) (citing Lepis v. Lepis, 83 N.J. 139, 145 (1980)). "The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes, supra, 117 N.J. at 504 (internal citations omitted). A court may reject requests for modification based on circumstances which are only temporary, voluntary or which are expected but have not yet occurred. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950); see also Lepis, supra, 83 N.J. at 151 (similarly observing that "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred."); Caplan v. Caplan, 182 N.J. 250, 268 (2005). A judge is therefore required to reject a request for modification based on circumstances that are merely temporary. Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009). In Larbig, we held that the trial court properly refused to find changed circumstances when defendant failed to demonstrate that the decrease in his income from his private business was "anything other than temporary." Larbig, supra, 384 N.J. Super. at 22.

Here, given the relatively short span of time between the execution of the Agreement and the date when defendant applied for modification, it was well within the authority of the Family Part to conclude that the most defendant demonstrated was simply a temporary financial setback. Moreover, although the Family Part's discretionary order could be read to close and lock the courthouse doors to defendant for a six-month hiatus, we do not view this as anything more than a reasonable attempt to provide guidance to the parties and avoid incessant modification applications. If there were any error in the court's six-month standstill provision, it was harmless. R. 2:10-2.

Affirmed.

 

This amount included earned and unearned income for the calendar year 2008.

Apparently defendant re-paid himself for corporate loans he had made to his close corporation, replacing the so-called investment with lines of credit from several third-party lenders.

Metal Partners, Inc. was described as a "distributor of stainless steel products to O.E.M. manufacturing companies in the U.S. and abroad."

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A-6113-08T2

May 21, 2010