BONNIE A. CLARK v. ANTHONY POMPONIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BONNIE A. CLARK,

Plaintiff-Respondent,

v.

ANTHONY POMPONIO,

Defendant-Appellant.

December 1, 2014

Submitted November 19, 2014 Decided

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-687-02.

Lawrence A. Leven, attorney for appellant.

Weiner Lesniak, attorneys for respondent (Salvatore A. Simeone, on the brief).

PER CURIAM

Plaintiff Bonnie Clark appeals from an August 2, 2013 post- judgment order of the Family Part denying her cross-motion for a reduction in her alimony obligation to defendant Anthony Pomponio. For the reasons that follow, we affirm the order.

By wayof background,the partieswere marriedon September18, 1982, and subsequently had one child. For a substantial portion of the marriage, plaintiff and defendant owned and operated North Jersey Diamond Wheel (NJDW), a business specializing in the manufacture and sale of abrasive cutting wheels.

Plaintiff commenced a divorce action in September 2001, and defendant filed an answer and counterclaim in March 2002. During the divorce proceedings, defendant filed a Chapter 13 bankruptcy petition, triggering the automatic stay under 11 U.S.C.A. 362(a). While the stay was in effect, the trial court dismissed defendant's answer without prejudice for failure to provide discovery. After the stay was lifted, the trial court suppressed defendant's answer with prejudice and entered a default on September 24, 2004. On January 10, 2005, the trial court entered a judgment of divorce (JOD) which, among other things, distributed the marital assets, set forth plaintiff's waiver of alimony, and awarded counsel fees to plaintiff.

Defendant appealed, claiming that his right to present an affirmative case was denied when the trial court improperly dismissed his answer while the bankruptcy stay was in effect. On January 28, 2008, we reversed the portions of the default judgment that pertained to equitable distribution, counsel fees, and defendant's claim for alimony, and remanded the matter to the trial court for resolution of those issues. Clark v. Pomponio, 397 N.J. Super. 630, 644-45 (2008).

After a lengthy trial, Judge Donald A. Kessler rendered an oral opinion on September 27 and 30, 2011. Relevant to this appeal, the October 5, 2011 memorializing order awarded ownership of NJDW to plaintiff, and required her to pay defendant permanent alimony in the amount of $35,000 per year, retroactive to 2005.1 Following a motion for reconsideration, the judge reduced the alimony amount to $20,000 per year on March 16, 2012.

In June 2013, defendant filed a motion to enforce litigant's rights based on plaintiff's failure to pay alimony and equitable distribution. In response, plaintiff filed a cross-motion seeking a reduction in alimony based on a change in circumstances. The cross-motion alleged that since 2008, plaintiff has experienced a significant decrease in income from her only source of revenue, NJDW. In support of her cross-motion, plaintiff included the following documents: certifications by herself and NJDW's accountant, summaries of NJDW's sales, her corporate and personal credit card statements, her personal income tax returns, NJDW's corporate tax returns, a change in lifestyle spreadsheet, and an updated case information statement (CIS).

On August 2, 2013, Judge Kessler denied plaintiff's cross-motion for alimony modification. The judge first found that plaintiff's cross-motion failed to comply with Rule 5:5-4(a), which requires a movant to attach all prior CISs to the motion papers. Although plaintiff submitted an updated CIS, she did not supply the court with her previously filed CISs. The judge also concluded that plaintiff failed to establish a prima facie showing of a permanent change in circumstances. Citing Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006), the judge expressed concern that a self-employed obligor, such as plaintiff, seeking an alimony modification may present an unrealistic picture of her actual income to the court. The judge found that plaintiff failed to present any evidence that she had "taken steps to ameliorate the plight of [her] company."

On appeal, plaintiff argues that the motion judge abused his discretion in denying her modification application due to her failure to attach her prior CISs. We disagree.

Post-judgment motions involving disputes concerning support obligations must be accompanied by both prior and current CISs. R. 5:5-4(a). The rule by its express terms is mandatory, not permissive. The CISs provide "a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). They are necessary to offer "an adequate factual basis for the court to assess essential facts necessary toa determination of the issues presented." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Accordingly, plaintiff's failure or refusal to submit her prior CISs was alone sufficient reason to deny her modification application.

Plaintiff also argues that the trial court erred in its interpretation of Larbig. Plaintiff contends that neither Larbig nor any subsequent decisions interpreting Larbig impose a requirement on the moving party to provide a detailed explanation of the actions taken to rectify a decline in business income.

It is well-settled that we owe particular deference to the decisions of the family court because of its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Specifically, "[w]hether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig, supra, 384 N.J. Super. at 21. "Each and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).

Alimony awards may be modified. N.J.S.A. 2A:34-23. "The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes v. Innes, 117 N.J. 496, 504 (1990). The party moving for modification must present a prima facie showing of changed circumstances to justify a plenary hearing on the matter. Miller v. Miller, 160 N.J. 408, 420 (1999). Only after such a showing is made will the court order discovery and conduct a hearing "to determine the supporting spouse's ability to pay." Ibid.

Alimony is generally set based on the marital standard of living. Lepis v. Lepis, 83 N.J. 139, 150 (1980) ("The supporting spouse's obligation is mainly determined by the quality of economic life during the marriage, not bare survival."). Alimony amounts thus "'contemplate [] continued maintenance at the standard of living [the spouse] had become accustomed to prior to the separation.'" Ibid. (quoting Khalaf v. Khalaf, 58 N.J. 63, 69 (1971)). These awards, however, can be modified based on the "changed circumstances" of the parties, which may include

(1) an increase in the cost of living; (2) increase or decrease in the supporting spouse's income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse's loss of a house or apartment; (5) the dependent spouse's cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law.

[Id. at 151 (internal citations omitted).]

Where, as here, the movant is arguing changed circumstances based on a reduction in income (Factor Two) to establish a prima facie case, she must show specifically "'that changed circumstances have substantially impaired the ability to support . . . herself.'" Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Lepis, supra, 83 N.J. at 157). This "must be understood to mean the ability to maintain a standard of living reasonably comparable to the standard enjoyed during the marriage." Crews, supra, 164 N.J. at 28.

Additionally, "it 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, 130 n.5 (App. Div. 2009); see also Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991) (finding no prima facie case of changed circumstances when "what [movant] did was to allow his practice to continue to diminish unchecked while bemoaning his fate").

The movant must also show that the reduction in income is not merely temporary. Innes, supra, 117 N.J. at 504. In considering whether the reduction will be long-term, courts have looked at, among other factors, the time between the entry of the JOD and the motion for modification. Larbig, supra, 384 N.J. Super. at 19 (rejecting a motion for modification filed only twenty months after the entry of the JOD). However, there is no brightline rule to measure when a changed circumstance is sufficient to allow relief. Id. at 23. In Donnelly, we affirmed the family court's denial of movant's motion for modification, holding that "the trial judge properly exercised his discretion in concluding that [movant] had returned to court far too soon to obtain relief[,] [c]onsidering that th[e] [] motion [at issue] was filed only nine months after the denial of the first Lepis motion." Donnelly, supra, 405 N.J. Super. at 128. We concluded that the short timeframe meant that the movant "failed to demonstrate that his alleged change in circumstances was anything but temporary." Ibid.

Moreover, courts apply closer scrutiny to "'what constitutes a temporary change in income'" when the movant is self-employed. Ibid. (quoting Larbig, supra, 384 N.J. Super. at 23). In Donnelly, we also noted that a self-employed movant is "'in a better position to present an unrealistic picture of his or her actual income than a W-2 earner[,]'" and thus "'what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor[.]'" Id. at 128-29 (quoting Larbig, supra, 384 N.J. Super. at 23).

Governed by these principles, we discern no abuse of discretion in the judge's denial of plaintiff's motion to modify her alimony obligation. As noted, we defer to Judge Kessler, who in the recent past had conducted a year-long trial to determine the issues of equitable distribution, alimony, and counsel fees, followed by a motion for reconsideration. In his prior oral opinion, Judge Kessler discredited plaintiff s trial testimony and proofs regarding her financial condition. The judge noted that plaintiff s testimony concerning her business expenses was "not credible" and that she was "defensive, argumentative[,] and her body language and her demeanor led the [c]ourt to believe that she was not being forthcoming." Judge Kessler determined that plaintiff mismanaged the business and misused corporate assets during her romantic affairs with clients and NJDW s business turnaround specialist.

Based on this prior history, Judge Kessler expressed concerns over whether plaintiff caused the financial problems experienced by NJDW.2 As a result, he properly considered plaintiff's proof of a declining income skeptically. The judge was entitled to rely upon his own experience with the case in making a determination as to whether changed circumstances genuinely existed. Donnelly, supra, 405 N.J. Super. at 128-29. Under these circumstances, in finding that plaintiff failed to establish a prima facie case of permanent changed circumstances, Judge Kessler correctly noted that she presented no evidence that she had made any attempt to ameliorate her business losses.

Consequently, we find the court's denial of plaintiff's motion for modification of alimony is based on sufficient, credible evidence in the record and does not amount to an abuse of discretion.

Affirmed.

1 In calculating alimony, Judge Kessler examined plaintiff's personal income tax returns and corporate credit card charges for the years 2005, 2006, and 2007, and increased plaintiff's reported yearly income by the amounts reflected in her credit card spending. The judge did not consider plaintiff's income for 2008, 2009, and 2010, in his calculations because plaintiff submitted incomplete financial information for those years.

2 The judge was particularly concerned about the effects that plaintiff's romantic involvement with NJDW's business turnaround specialist may have had on the company. He reiterated that he was not persuaded that the hiring of the specialist did anything other than drain the company's treasury. For this reason, the hotel rooms and pricey meals expensed on the corporate credit card for the specialist were added back to plaintiff's personal income.