ANTOINETTE BARBANERA v. GEORGE A. TIPTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5459-09T3

ANTOINETTE BARBANERA, f/n/a

ANTOINETTE TIPTON,

Plaintiff-Respondent,

v.

GEORGE A. TIPTON,

Defendant-Appellant.

_______________________________

September 29, 2011

 

Submitted September 12, 2011 - Decided

 
Before Judges Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-851-05.

 

George A. Tipton, appellant pro se.

 

Ernest R. Nuzzo, attorney for respondent.

PER CURIAM

In this post-divorce judgment matrimonial case, defendant-husband appeals from a June 2, 2010 order denying his motion to reduce alimony. We affirm, but remand for the judge to determine the proper garnishment rate of defendant's arrears.

In 2005, the parties divorced one another after a ten-year marriage and entered into a property settlement agreement (PSA). Pursuant to the PSA, defendant agreed to pay a sliding scale, limited duration alimony for ten years starting at $5,500 per month and declining to $2,500 per month in years nine and ten. When the parties entered into the PSA, defendant earned approximately $90,000, while plaintiff-wife earned approximately $7,000.

Following the divorce, defendant left his job in the textile industry and began working as a salesman, first selling cars and then, more recently, selling furniture. He contends that because his income has declined substantially, his alimony obligation should be reduced. In the alternative, defendant claims that the rate of arrears that the judge required him to pay is excessive, approaching sixty-five percent after taxes. He contends that he is living in a rooming house, in a spartan situation, and depends on sales commissions in a down economy to survive. He contends that he earned less than $30,000 in the year preceding the motion practice.

Plaintiff contends that defendant is underemployed and he has put himself in a poor financial situation through his own doing. She notes that he is over $250,000 in arrears and that he has generally been delinquent with alimony, having only made some modest payments since the divorce was entered. She notes that the limited duration alimony, with a sliding scale, was negotiated specifically to anticipate the parties' future circumstances, and that any adjustment is unwarranted.

After hearing the parties' contentions, the judge denied defendant's motion. In her written statement of reasons, the judge concluded that defendant failed to establish a prima facie case of changed circumstances to warrant a reduction of his support obligation.

On appeal, defendant makes the following arguments in his pro se brief:

1. TRIAL COURT ERRED IN NOT PROPERLY ASSESSING EQUITY AND FAIRNESS SINCE THIS IS THE FIRST PRINCIPLE OF JURISDICTION.

 

2. COURT DID NOT ACCOUNT FOR RELATIVE FINANCIAL CONDITIONS OF THE PLAINTIFF AND DEFENDANT, PARTICULARLY IN LIGHT OF THE FACT THAT THIS IS SPOUSAL SUPPORT, NOT CHILD SUPPORT.

 

3. TRIAL COURT ERRED IN DECLINING TO RECOGNIZE HEARING AS AN ABILITY TO PAY HEARING, RATHER THAN SIMPLY A CHANGED CIRCUMSTANCE REQUIRING LOWERED ALIMONY PAYMENTS.

 

4. TRIAL COURT FAILED TO RECOGNIZE THE PATTERN OF REDUCED INCOME OVER A LONG PERIOD OF TIME PRECEDING THE MARRIAGE'S DISSOLUTION WHEN ASSERTING THAT DEFENDANT IS "CHOOSING TO REMAIN" UNDER-EMPLOYED.

 

5. TRIAL COURT ERRED IN NOT PROPERLY ASSESSING IMPACT OF MAXIMUM GARNISHMENT AT 65% ON MY ABILITY TO SUPPORT MYSELF.

 

6. TRIAL COURT ERRED IN ASSESSING CHANGE OF CIRCUMSTANCE FROM TIME OF DIVORCE SETTLEMENT AGREEMENT AND THE CURRENT MOMENT.

 

7. TRIAL COURT ERRED IN ITS EVALUATION OF WHAT CONSTITUTES GOOD EFFORT TO IMPROVE ONE'S LOT.

 

8. TRIAL COURT ERRED IN ASSESSING WHAT CONSTITUTES FIELD OF ENDEAVOR THAT REQUIRE CHANGE.

 

9. TRIAL COURT IGNORED THAT CHANGING OCCUPATIONAL FIELDS REQUIRES RETRAINING. RETRAINING REQUIRES MONEY. MONEY REQUIRES RELIEF OF GARNISHMENT.

 

10. COURT FAILED TO RECOGNIZE THAT THE RIGHT TO PERMANENT ALIMONY CAN NOT BE NEGOTIATED AWAY SINCE THAT RIGHT DOES NOT EXIST IN THIS CASE. NO DIMINUTION OF PLAINTIFF'S POSITION EVER OCCURRED.

Although we have considered and rejected defendant's arguments as unmeritorious, our focus is on whether the judge erred by denying his request to reduce alimony and by purportedly fixing the payment of arrears at the maximum rate of sixty-five percent.

Notwithstanding the existence of a PSA between parties, the court retains jurisdiction to modify marital agreements based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). Inclusion of a property settlement within a divorce decree does not render the agreement immutable. Thus, "[c]ourts have continuing power to oversee divorce agreements and the discretion to modify them on a showing of changed circumstances that render their continued enforcement unfair, unjust, and inequitable." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999) (citations and internal quotation marks omitted). The party seeking modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157.

This State's "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Lepis, supra, 83 N.J. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)). The "ability to earn and the probability of [a spouse] earning the support awarded are relevant matters to be considered in fixing the amount [of alimony]." Id. at 275. "If it were otherwise, a [spouse], by deliberate intent or disinclination to work, might defeat or avoid his [or her] marital obligation of support." Robins v. Robins, 106 N.J. Eq. 198, 200 (N.J. 1930).

Our review of a trial court's findings of fact is limited. Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Roe v. Roe, 253 N.J. Super. 418, 433 (App. Div. 1992). Moreover, "[w]hether an alimony obligation should be modified based upon a claim of changed circumstances rests with 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)). We will not disturb a trial court's findings "unless they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

Here, the trial judge found that the parties had specifically anticipated their future circumstances, negotiating alimony of limited duration based on a sliding scale. The judge explained that defendant has detailed a "long and storied employment history." She concluded that he remains willfully underemployed as a result of his own doing, and explained that "defendant has not presented any facts to demonstrate that he is disabled or that his employment situation is not temporal in nature." From the record before us, we see no abuse of discretion, as there is ample credible evidence to justify the denial of defendant s application.

Defendant also argues that he is unable to support himself because his wages are being garnished at a maximum rate of sixty-five percent. The federal Consumer Credit Protection Act sets the maximum rate at which wages can be garnished for support orders. 15 U.S.C.S. 1673 states:

(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed--

 

(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week[.]
 

New Jersey implements this fifty-percent maximum rate under N.J.S.A.2A:17-56.9: "The total amount of income to be withheld shall not exceed the maximum amount permitted under . . . the federal Consumer Credit Protection Act[.]" Further, we have previously held that "in the face of a continuing noncompliance with both a current order and an arrears payment order, the wage execution, up to a permissible maximum . . . must cover both." Burstein v. Burstein, 182 N.J. Super. 586, 595 (App. Div. 1982). Thus, "[c]urrent support should be paid first and, if there is a difference remaining between current support and garnishable wages, the difference may be allocated to arrearages." Ibid.
Here, the judge did not assess what rate of garnishment the defendant was or should be paying. If defendant is correct that he is paying sixty-five percent of his weekly disposable income to wage garnishment, then he is well over the maximum rate allowed under federal and state law. On remand, the judge should assess the rate that defendant is actually paying and determine what the appropriate rate should be. This is especially important because defendant claims that his income was $30,000 in the year before he filed his motion.

W

e affirm the denial of alimony reduction and remand for the judge solely to determine and explain what the proper garnishment rate of defendant's arrears should be. We do not retain jurisdiction.