SHELLEY TZORFAS v. HOWARD TZORFAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2314-04T32314-04T3

SHELLEY TZORFAS,

Plaintiff-Appellant,

v.

HOWARD TZORFAS,

Defendant-Respondent.

_________________________________________________

 

Argued December 5, 2005 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-453-00.

Louis David Balk argued the cause for appellant (Balk & Geddes, attorneys; Mr. Balk, of counsel; Mary M. Theroux, on the brief).

Theodore E. Gast argued the cause for respondent (Vogel & Gast, attorneys; Mr. Gast, on the brief).

PER CURIAM

Plaintiff Shelley Tzorfas appeals the trial judge's ruling that she failed to make a sufficient showing of changed circumstances to warrant an upward modification of defendant Howard Tzorfas's obligation to pay her $2,500 per month in permanent alimony. We conclude that her Lepis motion was properly denied and affirm.

The parties were married on June 13, 1992 -- her second marriage, his first. Defendant is a podiatrist who opened his own practice a few years prior to their marriage; plaintiff held various teaching and sales jobs before the marriage, but was only briefly employed during the course of the marriage. Two children were born of their marriage, Andrew (on November 13, 1993) and Justin (on December 10, 1996). Following a trial over the course of eight days, Judge Victor Ashrafi rendered a written opinion on May 30, 2003. A judgment of divorce, which memorialized those findings of fact and conclusions of law, was also entered on May 30, 2003.

Among other things, the judgment directed that the parties share joint legal custody of the two children. Plaintiff was designated as the parent of primary residence. The judgment also required that defendant pay plaintiff permanent alimony of $2,500 per month as well as rehabilitative alimony for four years at a descending rate (i.e., $1,000 per month for the first year, $750 per month for the second year, $500 per month for the third year, and $250 per month for the fourth year).

The level of alimony awarded by Judge Ashrafi was based upon defendant's 2002 yearly income of $203,231, which the judge found consisted of his reported business profit of $172,918 and add-backs imputed to him in the amount of $29,313. Judge Ashrafi observed that the parties "hotly" contested the extent to which plaintiff could earn income. He resolved that dispute in the following way:

During the years of the marriage before separation, Shelly earned about $5,000 to $6,000 per year in various jobs and through her tutoring at home. In 2002, her tutoring income had increased to more than $12,000. Howard's employability expert, Beth Stefko, reviewed Shelly's prior work experience and concluded that she could earn $40,000 to $45,000 in her first year in a full-time sales or customer service position. She further concluded that Shelly could earn more than $65,000 by her fifth year of full-time employment.

Shelly argues that she is not underemployed. She contends that she must care for her children, including Justin's special needs, although she has the help of an au pair. She testified that she does not "see herself working 35 to 40 hours a week." She has not made a serious attempt to test her employability.

Both witnesses, Beth Stefko and Shelly, lack credibility on the issue of her employability and potential ability to earn income. Stefko was unreasonably optimistic without sufficient supporting evidence. Shelly has not worked full-time for about eleven years. Her earlier experience in sales is limited. There is no reason to believe that she could immediately get a job that pays more than $40,000. On the other hand, Shelly's lamentations are excessive, too. She has an au pair to help with the children during the hours that they are not in school, and yet claims that she cannot do more than she has been doing. She needs to make a greater effort to earn income.

Shelly's testimony about her tutoring business was that she works eight to ten hours a week at this time, charging at least $40 per hour. She has recently raised the rate she charges one student to $65 per hour. Even with fluctuations during holidays and the summer, her current work schedule should generate at least $16,000 for the year. With a slight increase in the number of students tutored or hours worked, she can readily increase her income to $25,000.

Putting aside her employability in other fields, I will impute a current income of $25,000 to Shelly. I also conclude that she can increase that income either through expanding her tutoring business or by searching actively for full-time outside employment. I estimate that within four years, Shelly could earn income of between $35,000 and $40,000.

As can be seen, Judge Ashrafi recognized that plaintiff's availability to earn this level of income was partially impacted by the needs of the children, which he also described:

Andrew, age, 9, has been classified by the Clinton Borough School District as having attention deficit disorder. He has undergone some psychological therapy, although he is currently not in therapy. He has been prescribed Clonidine and Concerta. Shelley administers a sleeping pill to him; Howard does not. He attends school all day as a fourth-grader and is in a mainstream class. He is doing well in school. As needed he should be provided with group therapy. The parties should attempt to secure therapy "in network" through their existing health insurance plan.

Justin, age 6, has been diagnosed with pervasive developmental disorder - not otherwise specified (PDD-NOS). He is prescribed Hydroxyzine and Risperdal. Justin has been undergoing psychological treatment since 2000, as well as speech, occupational, and physical therapies. He is a classified student in the Clinton Public Schools. Justin was first evaluated at the age of three at Shelly's request. He has made significant progress since his condition was diagnosed. He has an individualized instruction program (IEP) in school. Justin is now in a half-day kindergarten. In September 2003, he will begin attending school all day. The Clinton Public School District is capable of dealing with his condition and meeting his educational needs. He should most likely be placed in a mainstream educational setting, although that decision ultimately belongs to the school district and the parents. As needed he should be provided with appropriate therapy. The parties should attempt to secure therapy "in network" through their existing health insurance plan.

Based upon these findings, Judge Ashrafi directed that defendant pay permanent and rehabilitative alimony in the amounts previously indicated.

Claiming that the children required more of her time than Judge Ashrafi found in his decision, and asserting her own physical ailments, plaintiff moved in October 2004 for a modification of the alimony award. After hearing the argument of counsel, Judge Stephen Rubin concluded in a written decision that plaintiff failed to make a sufficient showing of changed circumstances. He denied her motion by way of an order entered on December 7, 2004.

We agree with Judge Rubin that plaintiff's assertions neither required the conducting of a plenary hearing nor warranted a modification of defendant's alimony obligation. In her original moving certification, plaintiff provided only the following conclusory statement:

Unfortunately, due to my increasingly serious medical problems, as well as those of my children, I have been unable to devote any real time to earning a living.

A later certification, dated November 24, 2004, failed to illuminate this unsubstantiated contention. This supplemental certification repeats, with little additional explanation, the same general assertions contained in the earlier certification and, also, attached numerous documents that, according to plaintiff, supported her broad allegations. However, the claims about the extent of Justin's circumstances were not borne out in the attached documents.

For example, Dr. Sharon L. Rauschenberger wrote on November 19, 2004 that Justin "has made gains in many areas," but "his progress is fragile." Citing her belief that Justin "is difficult to maintain" at home, Dr. Rauschenberger recommended "[t]rained professional help in the home environment . . . to help stabilize [Justin's] functioning and aid his progress." Judge Ashrafi, however, had previously recognized such a need -- and, in fact, at the time of trial, plaintiff had in-home assistance, as indicated in Judge Ashrafi's written decision. Accordingly, the doctor's opinion -- that Justin "has made gains in many areas," but still required in-home care -- does not represent a changed circumstance. Indeed, to the extent this report suggests a change, that change represents only an improvement of the circumstances. Since there is nothing else of substance in the record to support plaintiff's argument about Justin's condition and its impact upon plaintiff's ability to earn, we conclude that Judge Rubin correctly determined that plaintiff failed to sustain her burden in seeking a modification of the alimony award.

The same conclusion was properly reached with regard to plaintiff's contention that her own health problems prevented her from earning the level of income imputed by Judge Ashrafi. This contention finds no support in the collection of documents attached to her certifications. The report of Dr. Christopher Ferrante indicates that he first examined plaintiff on June 29, 2004. Plaintiff then complained of a swollen right knee and associated pain. Dr. Ferrante set forth his impression that she had a tear in the anterior cruciate ligament of her right knee and prescribed pain killers. Dr. Ferrante examined plaintiff again on July 13, 2004. He then indicated that plaintiff was "feeling much better," and observed that an MRI also indicated a "small medial meniscal tear and a big bone bruise/contusion of the knee." Dr. Ferrante set forth the following plan for plaintiff's future treatment:

She doesn't want to come back and see us if she doesn't need to. I think this is reasonable. She will walk around on it, keep taking the Naprosyn and also the Vicodin as needed and we will see her back in 3 weeks if she is not feeling better. She will probably just follow up on a prn basis.

The record does not indicate whether this ailment gave plaintiff any further difficulty. Moreover, there is nothing in the record to suggest how this ailment would have prevented plaintiff from tutoring children.

A party moving for a modification of support must meet the burden of demonstrating a prima facie case of changed circumstances. Miller v. Miller, 160 N.J. 408, 420 (1999). That burden is not sustained by mere conclusory or speculative allegations. Instead, the movant must set forth, with clarity and adequate documentation, the contentions upon which the application is based. Here, plaintiff only provided a brief and unexplained sworn statement that her health and Justin's circumstances precluded or limited her ability to earn income by tutoring children. Her certifications met neither the letter nor the spirit of Lepis. See Stamberg v. Stamberg, 302 N.J. Super. 35, 43 (App. Div. 1997). Moreover, even if it was appropriate for a Lepis movant to rely upon an unexplained collection of documents in support of a claim of changed circumstances, we are satisfied that the documents attached to the certifications plaintiff submitted to the trial court do not establish a prima facie case of changed circumstances.

 
Affirmed.

Lepis v. Lepis, 83 N.J. 139 (1980).

We find no significance in the fact that these figures add up to $202,231 and not $203,231.

(continued)

(continued)

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A-2314-04T3

December 15, 2005