SHARI LYNN POLLAK f/k/a SHARON LYNN POLLAK KALEN v. DAVID KALEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4185-09T3

SHARI LYNN POLLAK, f/k/a,

SHARON LYNN POLLAK KALEN,

Plaintiff-Respondent,

v.

DAVID KALEN,

Defendant-Appellant.

_________________________________________

July 5, 2012

Argued November 15, 2011 Decided

Before Judges Payne, Reisner and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-469-06.

David Kalen, appellant,argued thecause prose.

Jill L. Gropper argued the cause for respondent (Cohn, Bracaglia & Gropper, attorneys; Ms. Gropper, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant David Kalen appeals from the March 9, 2010 Family Part order denying his application for a downward modification of alimony and child support and for relief from several prior Family Part orders. Defendant also appeals from the April 21, 2010 order declining to hear part of his motion for reconsideration. Having considered defendant's contentions in light of the applicable law, we affirm.

The parties were married on September 21, 1991, and have three children. Plaintiff, then known as Sharon Lynn Pollak Kalen, filed a complaint for divorce on November 9, 2005. After a six-day trial, Judge Reed filed a written opinion on October 1, 2008, which required defendant to pay alimony of $2,000 per month and child support of $113 per week. Additionally, Judge Reed issued an Amended Judgment of Divorce (AJOD) on December 18, 2008.

In January 2009, plaintiff filed a motion for reconsideration requesting that the judge calculate the arrears due under the AJOD. Defendant filed a cross-motion for reconsideration, which the judge pointed out was mainly a motion to modify prior orders from 2007 and 2008 and for completely new relief. The judge decided to address some of the matters inappropriately raised by defendant to avoid further motion practice.

In the February 9, 2009 order, Judge Reed fixed defendant's miscellaneous arrears at $16,209 and his child support and alimony arrears at $6,207; offset the arrears due plaintiff by a $21,600 credit to defendant; and required defendant to pay the remaining amount within ten days, among other relief. Addressing defendant's cross-motion, the judge denied defendant's requests and, finding defendant "pursued that motion in bad faith because his motion does not even pay lip service to the applicable law or court rules," awarded plaintiff counsel fees for opposing defendant's cross-motion. Defendant filed an appeal of the order, which was eventually dismissed for lack of prosecution.

On March 27, 2009, Judge Marino denied defendant's motion for a stay of the February 9 order and request to be granted indigency status for his then-pending appeal because defendant had a yearly salary of more than $100,000. She also granted plaintiff's request for counsel fees after finding defendant's motion was made in bad faith. On August 19, 2009, in ruling on motions of both parties, Judge Marino denied defendant's request to reduce alimony and child support, due to his claim of reduced income, without prejudice to defendant filing again with appropriate proof, including sufficient documentation.

On February 3, 2010, defendant filed a motion requesting that

the February 9, 2009 Order and any and all pendente lite obligations, including but not limited to unreimbursed medical expenses, camp costs, legal fees, and all subsequent orders related to the Amended Judgment of Divorce rendered in this instant case at bar be dismissed and vacated for fraud, deception, false representations, misconduct by the adverse party and/or her attorneys, and for being void.

Specific requests included vacating the alimony award since defendant's income had dropped and plaintiff's imputed income was inaccurate; vacating the 2008 ruling on the fair market value of the marital home and defendant's automobile; vacating child support arrearages since the pendente lite support was improperly calculated in 2007; and vacating all prior counsel fee awards.

After a March 9, 2010 hearing, Judge Marino issued an order denying without prejudice defendant's motion for a downward modification of alimony and child support because defendant had failed to provide adequate documentation of changed circumstances. She also denied the remainder of defendant's motion, noting that his requests to reopen the prior orders had been made previously and his allegations were not supported by the record. In addition, the judge granted plaintiff's motion to adjust child support to credit her with 365 overnights per year and awarded her counsel fees. The judge denied several motions filed by plaintiff as well, which she did not appeal.

Further, Judge Marino granted plaintiff's motion to require defendant to submit all further motions to the judge for review prior to allowing them to be listed for a hearing. In her statement of reasons, she found that defendant

has demonstrated on multiple occasions his unwillingness to accept the Courts' decisions and his willingness to continue to file repetitive motions demanding relief which the court had previously denied, and in some instances, denied multiple times. Wife should not be compelled to continue to incur counsel fees due to Husband's repetitive bad faith motions. Therefore, any future motions filed by Husband shall first be screened and approved by the court prior to being listed for hearing.

On April 6, 2010, defendant filed a motion to reconsider the prior order. On April 21, 2010, Judge Marino granted that part of the motion that pointed out a mistake in the judge's calculation and modified defendant's child support obligation from $288 per week to $229 per week due to the calculation error in the March 9, 2010 order. Judge Marino also "administratively withdrew" the remainder of defendant's motion for reconsideration since the March 9 order "set forth that any future motions filed by Defendant must first be reviewed by the court prior to being listed for argument" and defendant failed to follow the mandated procedure. This appeal followed. On appeal, defendant raises the following contentions for our consideration.

POINTI: TRIAL JUDGE EGREGIOUSLY ABUSED DISCRETION IN DISMISSING DEFENDANT'S MOTION TO VACATE AND SUBSEQUENT MOTIONS FOR RECONSIDERATION ON NUMEROUS GROUNDS.

POINTII: TRIAL JUDGE ABUSED DISCRETION BY "IMPUTING" AND AWARDING IMPROPER ALIMONY AGAINST DEFENDANT.

A. DEFENDANT PROVES A PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCES.

POINTIII: TRIAL JUDGES ABUSED DISCRETION IN DENYING DEFENDANT'S REQUEST TO VACATE ORDERED UNREIMBURSED MEDICAL, DENTAL AND LEGAL EXPENSES OF PLAINTIFF ON GROUNDS PLAINTIFF FAILED TO PROVIDE DOCUMENTATION OR CIS. TRIAL JUDGES ALSO ABUSED DISCRETION ON DENYING VACATING OF ARBITRARY RULING ON FAIR MARKET VALUE OF MARITAL HOUSE THAT CAUSED DEFENDANT LOSS OF EQUITY AT THE TIME OF SALE.

A. DENIAL OF REQUEST TO VACATE UNREIMBURSED MEDICAL AND DENTAL EXPENSES OF PLAINTIFF ON GROUNDS PLAINTIFF FAILED TO PROVIDE DOCUMENTATION OF CIS.

B. LEGAL FEES.

POINTIV: TRIAL JUDGE ABUSED DISCRETION ON DENYING VACATING OF ARBITRARY RULING ON FAIR MARKET VALUE OF MARITAL HOUSE THAT CAUSED DEFENDANT LOSS OF EQUITY AT TIME OF SALE.

POINTV: TRIAL JUDGES ABUSED DISCRETION BY DENYING AND VACATING DEFENDANT'S ARREARS, DENYING CREDITING DEFENDANT'S OVERPAYMENTS FOR THIS AMOUNT BECAUSE IT WAS IMPROPERLY CALCULATED. TRIAL JUDGES ABUSED DISCRETION BY DENYING DEFENDANT'S REQUEST TO VACATE DENIAL OF VEHICLE ADJUSTMENT CREDIT BASED ON ARBITRARY FIGURES BY PLAINTIFF.

We begin with some well-established principles. In general, a trial court's factual findings will be binding on appeal so long as they are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citingRovaFarmsResort,Inc.v.InvestorsIns.Co.,65 N.J.474, 484(1974)). Thefindingsshould onlybedisturbedif "theyare somanifestlyunsupportedby orinconsistentwith thecompetent,relevantandreasonablycredibleevidence asto offendtheinterestsofjustice." Id. at 412 (quotingRovaFarms,supra,65 N.J.at 484). Furthermore, since the Family Part has special expertise in family matters and has had the opportunity to see and hear the witnesses testify firsthand, its fact-finding should be accorded particular deference on appeal. Id. at 413. However, the Family Part judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" on appeal. Manalapan Realtyv. Manalapan Twp.Committee, 140 N.J. 366, 378 (1995).

We have carefully reviewed the record and have determined that Judge Marino did not abuse her discretion in issuing the March 9 order. We affirm substantially based upon the judge's well-reasoned opinion of that date. We add the following comments.

Alimony and support orders are always subject to review and modification on a showing of changed circumstances. Lapisv. Lepis, 83 N.J. 139, 146 (1980). The party seeking modification has the burden of establishing a prima facie case of changed circumstances prior to the court ordering discovery, full financial disclosure of both parties, and a plenary hearing. Id. at 157-59. However, modification of alimony is not warranted if the change in circumstances is only temporary. Id. at 151. Moreover, in determining ability to pay alimony, other factors besides present earnings are considered, including potential to generate income, "[r]eal property, capital assets, investment portfolio and capacity to earn by 'diligent attention to . . . business.'" Miller v. Miller, 160 N.J. 408, 420-21 (1999) (quoting Innes v.Innes, 117 N.J. 496, 503 (1990)).

We agree that the record supports the judge's finding that defendant has not presented sufficient evidence of a permanent change in circumstances based on an involuntary decrease in salary. He has failed to show a loss of earning capacity by documentation such as a filed tax return. Additionally, defendant did not present any evidence that he has attempted to maintain his salary, nor did he reveal his attempts at gaining other employment. "[I]t is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances." Donnelly v.Donnelly, 405 N.J. Super. 117, 131 n.5 (App. Div. 2009). Defendant has not done so here.

Next, defendant argues that, pursuant to Rule 4:50-1, all prior orders in this matter should be vacated since both trial judges abused their discretion. UnderRule4:50-1, acourt may,"uponsuch termsas arejust,"relieve aparty froman orderfor anumber ofreasonsincluding"mistake,inadvertence,surprise,""fraud"or"misrepresentation"as wellas "anyotherreasonjustifyingrelief."R.4:50-1(a),(c) and(f). Motions forrelief fromjudgmentsare tobe decidedat thesounddiscretionof thetrialjudge.MorristownHousingAuth.v.Little,135 N.J.274, 283(1994). Wedo notdisturb theresultunlessthere hasbeen aclear abuseofdiscretion. Ibid.

We find no merit in defendant's argument that Judge Marino erred in denying his Rule 4:50-1 motion. Defendant contends that he is entitled to relief under Rule 4:50-1(c) and (d) since plaintiff acted in "bad faith" by not submitting proper financial documents, intentionally providing false information to the court through testimony and false certifications, and hiding financial assets, causing both Judge Reed and Judge Marino to err in their financial calculations of arrears. The trial judge found, and we concur, that defendant did not submit any competent evidence contesting the financial documents at issue or the validity of plaintiff's certifications nor did he provide any proof of fraud. Likewise, there was no evidence in the record that the orders defendant challenges were "void."

Additionally, defendant asserts that all prior orders should be vacated under Rule 4:50-1(f) since the trial judges failed to act impartially; wrongfully accused defendant of filing frivolous motions; improperly calculated the base upon which support was set in 2007; and improperly calculated the value of the marital home and the automobile in 2008. However, as Judge Marino found, defendant presented no documentation or other evidence that supported his allegations, which had been considered and denied at prior hearings. Furthermore, our thorough review of the record demonstrates no evidence showing that the trial judges were biased against defendant in their decisions.

In addition, we reject defendant's claim that Judge Marino's order, which required that any motion defendant files be reviewed by the judge prior to being listed for argument, demonstrated bias against defendant. Her stated purpose in issuing the mandate was to prevent defendant from continuously filing repetitive motions. We have recognized the inherent authority of the courts to control the filing of frivolous motions and to curtail "harassing and vexatious litigation." Rosenblum v. Boroughof Closter, 333 N.J. Super. 385, 390 (App. Div. 2000) (citing Lydia v.Commissioner of InternalRevenue, 816 F.2d 311, 312 (7th Cir. 1987)). However, the court's discretion to condition a litigant's ability to present his or her claim "must be used sparingly; it is not a remedy of the first or even second resort." Parish v.Parish, 412 N.J. Super. 39, 54 (App. Div. 2010). Such limitation on access to the court is only appropriate where a judge has found past pleading to be frivolous or abusive, and has previously tried to abate the abuse by employing sanctions such as those contained in Rule 1:10-3 or Rule 5:3-7. Id. at 54-55. "Additionally, any restraint entered must be circumscribed, not global, and narrowly focus on the issues shown to warrant restraint." Ibid.

We are satisfied that under the unique facts of this case Judge Marino's requirement of judicial review as a prerequisite for defendant's future motions being listed complied with our provisions in Parish. Both Judge Reed and Judge Marino made findings in the past that defendant had brought motions in bad faith. Both had awarded plaintiff counsel fees due to defendant's bad faith. However, because defendant was not deterred, Judge Marino issued the order for the narrowly focused purpose of preventing defendant from continuing to file repetitive frivolous motions. As we find this limited order to be a suitable exercise of judicial discretion in this case, we reject defendant's claim that it indicates bias against him.

Defendant's remaining arguments are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E).

Affirmed.