THEODORE E. GRIER v. WENDY S. GRIER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THEODORE E. GRIER,

Plaintiff-Appellant,

v.

WENDY S. GRIER,

Defendant-Respondent.

_______________________________

March 24, 2016

Submitted March 1, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Family Part, Sussex County, Docket No. FM-19-482-11.

Weinberger Law Group, L.L.C., attorneys for appellant (Michael J. Evans, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals a November 20, 2014 order denying his motion to review his alimony obligation. We affirm.

We discern the following facts from the record. The parties were married until July 15, 2012, when the court entered a final judgment of divorce (JOD), which incorporated the parties' Property Settlement Agreement (PSA). The PSA provided that plaintiff was to pay defendant non-taxable permanent support of $500 per week and child support for one child of the marriage. The agreement provided that the amount plaintiff paid to defendant was based on his average income over the three-year period prior to the execution of the PSA, which was $100,000. The agreement also imputed $15,000 to defendant for alimony calculation purposes.

On July 2, 2014, plaintiff moved to modify his alimony obligation under the PSA, and to legally emancipate his child. Plaintiff's motion was unopposed. The trial court denied plaintiff's motion without prejudice on September 24, 2014 because plaintiff did not correctly serve his motion papers on defendant. Plaintiff moved for reconsideration on October 2, 2014, along with proof of service on October 3, 2014. The motion judge subsequently granted plaintiff's motion to emancipate his child on November 20, 2014, but denied plaintiff's motion to modify his alimony obligation and his request for a plenary hearing. Plaintiff subsequently filed a notice of appeal, appealing only the November 20, 2014 motion for reconsideration. Respondent has not filed a brief in opposition.

As noted above, plaintiff appeals only the motion for reconsideration and not the original order. See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.) (citing Pressler, Current N.J. Court Rules, comment 6 on R. 2:5-1(f)(3)(i) (2002)) (explaining that this court only considers judgments and orders listed in a notice of appeal), certif. denied, 174 N.J. 544 (2002). Accordingly, we review for an abuse of discretion. Ibid. We also note that "[m]otions for reconsideration are granted under very narrow circumstances." Ibid.

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990))]

We discern no abuse of discretion on the part of the trial judge. The trial judge correctly explained that, when a party seeks to modify any support obligation under a PSA, the party must demonstrate "changed circumstances" supporting such a modification. J.B. v. W.B., 215 N.J. 30, 327 (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)). A reduced income is one event that may qualify as "changed circumstances." Ibid.; Reese v. Weis, 430 N.J. Super. 552, 569-70 (App. Div. 2013) (citing Lepis, supra, 83 N.J. at 146). Family Part judges, however, have considerable discretion in determining whether a changed circumstance warrants an alimony modification. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). This discretion turns on a Family Part judge's "experience as applied to all the relevant circumstances presented[.]" Ibid. We further note that the party seeking modification has the burden of demonstrating such changed circumstances as would warrant relief from his or her obligation. When a supporting spouse brings an application for a downward modification, the central focus is on the supporting spouse's ability to pay. Miller v. Miller, 160 N.J. 408, 420 (1999).

Although the judge noted plaintiff's reduced income, the court also noted that the reduced reported income did not appear to be a permanent circumstance. In order to prove changed circumstances, the changed circumstances must be permanent. Ibid. (citing Lepis, supra, 83 N.J. at 157). Accordingly, we conclude that the motion judge's decision was not based on a palpably incorrect basis. Plaintiff's income for purposes of the PSA was originally measured by averaging several years of income. Plaintiff asserts his current income, although lower than what was reported in the PSA, is lower now because of the loss of a client. "Courts have consistently rejected requests for modification based on circumstances which are only temporary," Lepis, supra, 151. The Court is confronted with the questions of when changed circumstances are enduring enough to warrant a modification. In other words, plaintiff must demonstrate the decline in business is permanent and inhibits his ability to earn. Although plaintiff asserts that he received a discharge in bankruptcy in 2014, he also concedes that the bankruptcy filing assisted him with debts. The motions judge correctly concluded that these facts do not evince a showing of permanent changed circumstances; rather, plaintiff's income may rise again after a short period of time. Accordingly, there was no basis upon which the Family Part should have held a plenary hearing. See Lepis, supra, 83 N.J. at 157 (explaining that a court should hold a plenary hearing if a party makes a prima facie case of changed circumstances).

We also conclude that the court appropriately considered all of the relevant probative and competent evidence. See D'Atria, supra, 242 N.J. Super. at 401. The trial court reviewed plaintiff's financial situation, and found that his income had not substantially changed since the time the PSA was executed because plaintiff's income, for purposes of the PSA, was $100,000. We find no error on the trial judge's part in this regard.

Affirmed.