JOSEPH E. TRAMMELL v. JUDITH TRAMMELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2489-11T3

JOSEPH E. TRAMMELL,

Plaintiff-Appellant,

v.

JUDITH TRAMMELL,

Defendant-Respondent.

_________________________________________________

March 25, 2013

Submitted October 2, 2012 - Decided

Before Judges Alvarez, Waugh and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0220-04.

August J. Landi, attorney for appellant.

Law Offices of Veronica M. Davis, attorneys for respondent (Veronica M. Davis and Nancy B. Marchioni, on the brief).

PER CURIAM

Plaintiff Joseph E. Trammell appeals from a December 13, 2011 post-judgment order of the Family Part denying his motion to terminate his alimony obligations and his obligation to provide life insurance, vacate all alimony arrears, vacate the bench warrant for his arrest, and for other relief. For the reasons discussed below, we affirm.

I.

The following summarizes the facts and procedural history surrounding the entry of the dual judgment of divorce (JOD) and the post-judgment motions related to the parties' bitter and protracted dispute over alimony.

The parties were married on January 20, 1973. Two children were born of the marriage, a son born in 1981 and a daughter born in 1985. Both are emancipated. A JOD was filed March 23, 2005. The parties' matrimonial settlement agreement (MSA) was made a part of the JOD.

Plaintiff agreed to pay defendant $2881 a week "through probation by wage garnishment." The amount was based on plaintiff's representations that he earned $66,000 per year, and defendant's earnings of $23,000 per year. Plaintiff agreed to "transfer ownership of $100,000 term life insurance to" defendant and to pay the insurance premiums. The MSA also set forth the equitable distribution of the parties' property, including real property, plaintiff's pension, vehicles, bank accounts, stocks and bonds, tangible property, and plaintiff's company, Navesync, Inc. (Navesync), the value of which was stipulated at $75,000.

With respect to the December 13, 2011 order, plaintiff argued that since the date of the divorce, he has fallen on hard times financially and his "business has slowed to a trickle th[ese] past two years" preventing him from being able to make his scheduled alimony and arrearage payments. Plaintiff claimed that Navesync grossed only $83,000 in 2010, in contrast with $346,900 in 2005. His personal income in 2010, plaintiff contends, was $10,000. In addition, plaintiff said he suffers from chronic pain which prevents him from working.

On December 24, 2010, plaintiff, as sole shareholder and board member, caused Navesync to file for protection under Chapter Eleven of the United States Bankruptcy Code.2 Plaintiff nevertheless received a $55,397 loan from Navesync earlier that year.

The court issued a June 9, 2010 order requiring plaintiff to pay $5096.86 in alimony arrears to defendant. On January 5, 2011, the court entered another order, requiring plaintiff to pay $12,104.86 in arrears. The order stated that plaintiff could avoid a bench warrant if he made a lump sum payment of $1000 by January 13, 2011, which he did. That was plaintiff's only alimony payment since August 9, 2010.

On April 13, 2011, the court issued a warrant for plaintiff's arrest. On July 25, 2011, the probation division delivered a notice of delinquency to plaintiff, informing him that his account was in arrears of $20,064.86. By November 17, 2011, plaintiff owed $25,504.86 in arrears to defendant.

On August 25, 2010, New York Life Insurance Company informed plaintiff that his insurance policy had lapsed due to non-payment. This was the policy plaintiff was required to maintain for defendant's benefit.

On November 18, 2011, plaintiff filed a pro se motion to terminate his alimony obligation, reduce his unpaid alimony payments to zero, terminate his obligation to maintain life insurance for defendant, and terminate the bench warrant. Plaintiff did not request a plenary hearing, discovery, or for the matter to be sent for mediation or arbitration.

On November 21, 2011, defendant filed an opposition and a pro se cross-motion to enforce litigant's rights. She sought the following: to enforce the court's June 6, 2010 and January 14, 2011 orders; enforce the MSA provision regarding alimony; order plaintiff to make a lump sum payment of $25,000 towards arrears; order the garnishment of plaintiff's wages; and order plaintiff to reinstate the life insurance policy naming defendant as beneficiary. Plaintiff responded with an "objection letter."

On December 13, 2011, Judge Leslie-Ann M. Justus issued an order and comprehensive written opinion. The judge amplified her opinion in writing on April 24, 2012. As to plaintiff's request to reduce alimony, the judge pointed out that he had not met his burden of showing "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 158 (1980). When the support obligation was established, income was imputed to plaintiff in the amount of $66,000. The judge noted that plaintiff's pay stubs indicated that although he works only sporadically, he is still able to work.

The judge also found it significant that plaintiff purchased over $82,000 in equipment for Navesync in 2009, and that the company loaned plaintiff money in 2010. Furthermore, the judge emphasized that plaintiff failed to submit either a personal or corporate tax return for 2009, but that his case information statement (CIS) indicated that he earns $60,476 a year. This amount, she stated, "is not a substantial and permanent reduction in his income from the $66,000 imputed to him in the MSA."

In addition, the judge noted that a temporary reduction in income does not warrant a reduction in alimony, particularly for the self-employed. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). The judge also pointed out that plaintiff's physical problems existed during the marriage, and were known at the time of divorce. The judge concluded that "plaintiff has not met his burden of proving that he has sustained a substantial and permanent reduction in his income warranting a modification of his alimony arrears. Nor has plaintiff presented any basis for [the c]ourt to vacate his alimony arrears."

II.

We now address plaintiff's contentions on appeal that due to changed circumstances he is entitled to a reduction in alimony payments, termination of his obligation to provide life insurance, vacation of all alimony arrears, vacation of the bench warrant for his arrest, and other relief.

Plaintiff has the burden of showing such "changed circumstances" as would warrant relief from the support or maintenance provisions involved. Martindell v. Martindell, 21 N.J. 341, 353 (1956). A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status. Lepis, supra, 83 N.J. at 157. "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. This requires full disclosure of the [obligor] spouse's financial status, including tax returns." Ibid. Furthermore, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268 (1950)).

Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989) (quotation and quotation marks omitted). "[A] court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller v. Miller, 160 N.J. 408, 420 (1999).

Plaintiff has not met his burden by providing any credible evidence to the court that would support his application for changed circumstances. Aside from plaintiff's contention that his income is significantly reduced, he has simply failed to provide documentary evidence to support his burden to show that his financial circumstances have indeed changed and thus warrant modification. Accordingly, we discern nothing in the record to disturb the judge's decision to deny plaintiff's request for a reduction of his financial obligations.

Finally, plaintiff contends that the judge erred by not vacating the bench warrant for his arrest. We disagree. An arrest warrant may be issued to bring a plaintiff to court. Scalchi v. Scalchi, 347 N.J. Super. 493, 495 (App. Div. 2002). "Before a [plaintiff] can actually be incarcerated, however, a hearing must be held to determine if the [obligor] has the ability to pay and is presently capable of complying with the order." Ibid. (citing Saltzman v. Saltzman, 290 N.J. Super. 117 (App. Div. 1996)). At the ability-to-pay hearing, the trial court must advise obligors subject to incarceration for non-payment of alimony that they have a right to appointed counsel if they demonstrate indigency. Pasqua v. Council, 186 N.J. 127, 146 (2006).

We see no reason to disturb the judge's decision to arrest plaintiff and bring him before the court in order for the court to make further appropriate determinations.

A

1 A June 6, 2010 order increased the amount to $320 per week, plus $10 per week toward arrears.

2 11 U.S.C.A. 101 et seq.