GAIL H. SLATER v. LANCE E. SLATER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3977-09T3

GAIL H. SLATER,

Plaintiff-Respondent,

v.

LANCE E. SLATER,

Defendant-Appellant.

____________________________________________

May 11, 2011

Submitted March 29, 2011 - Decided

Before Judges Parrillo and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-487-05.

David S. Rochman, attorney for appellant.

Archer & Greiner, P.C., attorneys for respondent (Leif M. Nissen, on the brief).

PER CURIAM

Defendant, Lance Slater, appeals from a March 30, 2010, Family Part order denying his post-judgment motion for modification of alimony based on changed circumstances. We affirm.

The parties were divorced on June 26, 2008, by final judgment of divorce incorporating a letter opinion setting forth the court's findings of facts and conclusions of law. Defendant was ordered to pay child support in the amount of $2,197 per month and alimony of $10,833 per month, based on plaintiff's imputed annual income of $7,436 and defendant's income of $360,000 annually. Defendant's good will or "book of business" as a stockbroker was determined to be subject to equitable distribution and to have a value of $224,298 based on the testimony of a forensic expert at trial. The trial court set off plaintiff's interest in defendant's "book of business" against defendant's interest in the former marital residence by way of equitable distribution.

At the time of the divorce and through the spring of 2009, defendant was employed as a stockbroker with Wachovia Securities (Wachovia). Defendant alleges he was terminated from Wachovia when it was taken over by the FDIC and purchased by Wells Fargo. By March 2009, defendant had secured employment with UBS Financial Services, Inc. (UBS).

On June 16, 2009, the parties entered into a consent order resolving a motion filed by defendant shortly after his change in employment in March 2009, alleging changed circumstances based on a decrease in his income. The consent order acknowledged defendant had recently commenced employment with UBS and that he intended to maintain his support and other financial obligations under the final judgment of divorce. The parties agreed that the proceeds of a signing bonus or forgivable loan offered to defendant from UBS upon commencement of his new employment would not be utilized for purposes of the currently pending motion or any future motions for modification of support. Plaintiff contends she agreed not to seek any discovery of the loan in consideration for defendant's acknowledgement and intention to continue paying his obligations of $10,833 per month in alimony and $2,917 per month in child support.

In September 2009, defendant filed a new application to modify his alimony obligation based on the same alleged decrease in his income. An order dated October 16, 2009, denied defendant's application to modify his alimony obligation without prejudice, for failing to submit his prior and current case information statements pursuant to Rule 5:5-4(a). Defendant immediately filed a subsequent motion seeking a reduction in his permanent alimony obligation, again, based on allegations of a substantial decrease in his income. At oral argument on December 4, 2009, the trial judge determined further submissions were required to reach a final determination of the issue. On March 30, 2010, defendant's application to reduce his alimony obligation was denied. The court found defendant had not established a prima facie case of changed circumstance. This appeal followed.

On appeal, defendant contends the trial court abused its discretion by denying his request for modification of alimony. We disagree. 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 family courts, which have "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. of Am., 65 N.J. 474, 484 (1974)).

Similarly, a decision regarding 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 Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). On appeal, the court should not disturb that decision "absent an abuse of discretion." Larbig, supra, 384 N.J. Super. at 23.

Against this standard, we first note that it is a long-established policy in New Jersey to favor consensual agreements 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." Ibid. 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 acknowledge that it is equally well-settled 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 (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 (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 Caplan v. Caplan, 182 N.J. 250, 268 (2005); Lepis, supra, 83 N.J. at 151. In Larbig, we held the trial court correctly 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.

In Lepis, the court set forth a procedural framework for the Family Part's consideration of a motion to modify support payments. Lepis, supra, 83 N.J. at 157. The moving party must show that the changed circumstances have "substantially impaired" his or her financial means. Ibid. Upon such a prima facie showing, the court may permit discovery and it may subsequently hold an evidentiary hearing if genuine issues of material fact exist. Id. at 157-59; see also Miller v. Miller, 160 N.J. 408, 420 (1999); Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998).

We find no abuse of discretion in the Family Part's order dated March 30, 2010, denying defendant's motion. The judge correctly analyzed the law and evidence submitted and determined that defendant had not made a prima facie showing of a substantial change of circumstances since the judgment of divorce or the consent order entered on June 16, 2009. The court aptly observed that defendant was employed at UBS at the time the consent order was entered, and that less than two months later the defendant filed his application for a decrease of his alimony obligation. In its statement of reasons denying defendant's motion for modification, the trial court stated:

Furthermore, although the defendant claims that his income has been drastically reduced because of his new employment with UBS, the court is without sufficient information to determine whether the circumstances are temporary or permanent. . . . In addition, the circumstances under which defendant left employment with Wachovia appear to have been voluntary and not as a result of his termination by Wachovia. Defendant has not provided a sufficient factual basis for leaving employment with Wachovia, particularly given his 2008 gross income as reflected on his tax return and his 2009 year-to-date earnings from Wachovia as reflected in the paystubs he submitted.

Here, at the time defendant entered into the June 16, 2009 consent order, defendant was fully aware of the financial terms of his new employment and agreed to make current and timely payments of his alimony, child support and any other financial obligations contained in the judgment of divorce. We are satisfied the record supports the trial court's determination that defendant had not demonstrated a permanent change in his income, substantially impairing his ability to meet his support obligation, since the last order of support.

There is some merit to defendant's argument that his UBS signing bonus should not be considered as income in recalculating an alimony modification because his "book of business" was distributed as an asset in the divorce. Here, we need not reach that issue since the court made no recalculation. The basis of the trial court's denial of defendant's motion to modify alimony was a failure to provide sufficient evidence establishing that defendant's change in employment was involuntary or that the purported decrease in his earnings was anything but temporary.