ELISEO PENARANDA v. GLORIA PENARANDA

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0917-09T1

ELISEO PENARANDA,

Plaintiff-Appellant,

v.

GLORIA PENARANDA,

Defendant-Respondent.

________________________________________________________________

November 3, 2010

 

Argued October 5, 2010 - Decided

 

Before Judges Carchman and Graves.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-817-07.

 

Hugo Villalobos, attorney for appellant.

 

Debbie Morgan argued the cause for respondent (Central Jersey Legal Services, Inc., attorneys; Ms. Morgan, of counsel and on the brief).

PER CURIAM

Plaintiff Eliseo Penaranda appeals from his third unsuccessful application to reduce alimony paid to his former wife, defendant Gloria Penaranda. Judge Grispin, in the Family Part, concluded that plaintiff had failed to establish a prima facie showing of changed circumstances sufficient to warrant a hearing. We affirm.

These are the relevant facts. Plaintiff and defendant were married on May 23, 1977 and divorced by judgment of August 21, 2007. The parties entered into a property settlement agreement (PSA) that required plaintiff to list his business, Eliseo Penaranda Auto Repair (the business), for immediate sale. In the interim, plaintiff agreed to pay defendant $400.00 per week in alimony. According to the PSA, once plaintiff sold the business and the profits were divided equally, either party could apply for modification of alimony.

Since the execution of the PSA, plaintiff failed to comply with various provisions of the PSA, including the sale of his business and the payment of alimony. Defendant successfully moved to hold plaintiff in violation of litigant's rights on December 14, 2007, May 9, 2008, December 10, 2008, May 13, 2009, July 24, 2009 and October 5, 2009. Consequently, in addition to the agreed-upon $400.00 per week in alimony, plaintiff has been ordered to pay an additional $25.00 per week towards the accumulated arrears of $26,585.00. Notwithstanding his failure to comply with the PSA as well as the condition precedent that he dispose of his business, plaintiff has filed three unsuccessful motions for a modification of alimony.

His first application, considered in January 2009, was denied because he "merely certified that he was having difficulty abiding by his alimony obligation because of a decrease in his income, and no proof was submitted to that effect." His second, decided six months later in July 2009, was similarly denied for lack of credible proof as his motion was not supported by his own certification but solely by a certification of his counsel. See R. 1:6-6.

The motion judge also expressed "grave concerns" about the 2007 and 2008 federal tax returns submitted by plaintiff. Specifically, the returns reflected discrepancies in the name of plaintiff's business, the address of plaintiff's business, plaintiff's employer identification number and the gross receipts plaintiff reported. For example, Schedule C of the 2007 return identifies plaintiff's business as Eliseo Penaranda Auto Repair located at 61 Seventh Street in Elizabeth. The 2008 return reflects an entity known as EP Colombia Auto Repair Corp. at 82 East Jersey Street, Elizabeth. The businesses further set forth different Employer Identification Numbers. Finally, the 2008 Schedule C contains no business information but indicates a profit of $5,128.

The motion judge concluded that the returns were "questionable" because of facial alterations to the preparer's section; certain "returns were initially stamped self-prepared. The self was whited out, and then Medina Services was printed on the returns." Cumulatively, plaintiff had very little credibility, and there was an insufficient showing of credible changed circumstances to order a plenary hearing.

Less than one month after his previous motion was denied, plaintiff filed a nearly identical motion. The renewed motion was accompanied by plaintiff's certification of his finances. Plaintiff's certification alternatively alleged that alimony should be modified because defendant is cohabitating with another. Defendant filed a cross-motion, three days late, seeking to hold plaintiff in violation of litigant's rights.

Because plaintiff's motion was devoid of any factual information to support his claim that defendant had remarried or cohabitated with another, plaintiff's motion to suspend alimony was denied. Regarding the tax returns, the motion judge questioned plaintiff directly. Plaintiff first stated that he grossed approximately $600.00 to $700.00 per week, or $31,200.00 to $36,400.00 per year. However, plaintiff s 2008 Schedule C tax return stated that plaintiff only grossed $27,000 per year. Next, plaintiff disclosed that he earned cash that was not reflected in his case information statement (CIS) and tax returns. As a result of plaintiff s admissions, the judge found that plaintiff had not demonstrated a prima facie case of changed circumstances to warrant a hearing. While recognizing that defendant's opposition and cross-motion were untimely, the judge found plaintiff in violation of litigant's rights for failing to meet his alimony obligations and for failing to comply with previous orders of the court.

This appeal followed.

On appeal, plaintiff asserts that he established a prima facie case of changed circumstances and was entitled to a plenary hearing. He claims that the denial of the hearing was an abuse of discretion. Finally, he argues that since defendant filed her cross-motion out-of-time, plaintiff's motion should have been considered uncontested and the relief granted.

A movant seeking modification of his alimony obligation must bear the burden of presenting sufficient information to establish a prima facie showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980); see also Innes v. Innes, 117 N.J. 496, 504 (1990) ("The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations.").

When the supporting spouse seeks a downward modification in alimony, "the central issue is the supporting spouse's ability to pay." While, "a sworn assertion that the obligor s income [has] fallen . . . strongly suggests a substantial change in circumstances," Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009), a judge must act as a "gatekeeper" and carefully scrutinize the submission, in the first instance, to determine whether the movant is entitled to a hearing. See Larbig v. Larbig, 384 N.J. Super. 17, 22 (App. Div. 2006) (recognizing that the judge exercised appropriate discretion in denying relief including a hearing where the motion to modify was brought twenty months after the entry of final judgment).

Whether a movant is entitled to a modification of alimony based on a change of circumstances "rests within a Family Part judge's sound discretion." Id. at 21. In assessing the application of that discretion, we are mindful of the admonition that "[e]ach 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)).

Applying these principles here, we conclude that Judge Grispin did not abuse his discretion in denying plaintiff's motion for modification. As he noted, the record is replete with inconsistencies regarding plaintiff's finances.

As we have observed, plaintiff's business tax returns contain conflicting business names, employer identification numbers and business addresses. Moreover, the tax returns appear to have been facially altered; some were "SELF-PREPARED" while others show the "SELF" covered in white-out with a corresponding "MEDINA'S SERVICES" stamp. Judge Grispin stated:

[W]e have a 2008 corporate tax return with an ID No. [XX-XXX9404]. It looks from your submissions that it was prepared twice, because I get the same one with Medina Services and the second one, which is exactly the same with Medina's name whited out and called self-prepared.

 

Plaintiff's certification of his depressed financial condition cannot overcome the irregularities in his tax returns. Plaintiff stated gross cash receipts were conflicting with the amounts disclosed in his CIS and tax returns, as the following colloquy demonstrates:

THE COURT: How much do you gross each week?

[PLAINTIFF]: Six hundred, 700.

 

. . . .

 

THE COURT: [I]f he grosses 600, it's 31,200. If he grosses 700, it's 36,400.

 

. . . .

 

THE COURT: [T]hat reflect that it's [plaintiff's gross income] higher than the $27,000 that he reflected on his tax return.

 

. . . .

 

THE COURT: Mr. Penaranda, the tax return that you filed . . . says other income/miscellaneous, $7,5000. What was that?

 

[PLAINTIFF]: Cash.

 

THE COURT: [I]f you look at your case information statement, Page 4, Question 6, there's a question, "Do you receive cash or distributions not otherwise listed?" You said no.

 

. . . .

 

THE COURT: [D]o you earn cash that hasn't been listed -- reflected?

 

[PLAINTIFF]: Part of it, yes. Just part of it.

 

THE COURT: Is it all reflected on your tax returns?

 

[PLAINTIFF]: No.

 

Incomplete or inaccurate financial records submitted in support of a motion to modify alimony can be an appropriate basis for denying relief. In Stamberg v. Stamberg, 302 N.J. Super., 35 (App. Div. 1997), the movant "did not deny receipt of the IRA payments but he did not reveal the amount of those payments." Id. at 40. The judge concluded that movant had not demonstrated a prima facie case of changed circumstances because he "concededly had failed to provide a full statement of his current income from all sources." Id. at 41. The same circumstances apply with equal force here.

"[B]ecause of the Family Court's special jurisdiction and expertise in family matters, appellate courts should accord deference to Family Court factfinding." Crespo v. Crespo, 395 N.J. Super. 190, 193 (App. Div. 2007) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence." Crespo, supra, 395 N.J. Super. at 194 (internal citation and quotation omitted). We are satisfied that Judge Grispin's discretionary determination clearly was supported by the record, and we find no basis for our intervention.

Plaintiff further asserts that he presented a prima facie case of changed circumstances based on defendant s alleged cohabitation with another.

"Since one of the procedural prerequisites to discovery and a hearing in a modification proceeding under [Lepis] is an initial showing of changed circumstances . . . cohabitation shall constitute such changed circumstances." Gayet v. Gayet, 92 N.J. 149, 154-155 (1983). "[T]his scheme permits modification for changed circumstances resulting from cohabitation only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Id. at 153-154.

Other than the bare allegation that defendant was cohabitating, plaintiff offered nothing to support the claim. The allegation was purely conclusory. As the judge noted:

THE COURT: [A]side from [plaintiff] saying, "I think she lives with somebody," [plaintiff] didn't give me one bit of information. I don't see his certification that says where he sees them, where she lives, where this Mr. X lives. I don't see a detective report.

 

. . . .

 

THE COURT: Most of the time -- on these motions, I get someone who has some sort of facts, and it's not a fishing expedition. It's a factual discussion that we have.

 

We conclude that there was no error here.

We easily dispose of plaintiff's two additional claims. His assertion that defendant's late filing entitles him to relief is without merit. While we do not condone the late filings of motions or responding papers, especially in the Family Part, see R. 5:5-4(c) (requiring the filing of opposing affidavits or cross-motions no later than 15 days before the return date), we also recognize that in appropriate circumstances, the rule may "be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." R. 1:1-2. Application of the rule rests within the trial judge's discretion. See Kellam v. Feliciano, 376 N.J. Super. 580, 588 (App. Div. 2005).

In the context of this case, the belated filing more than a week before the return day of the motion did not prejudice plaintiff. This was his third application for modification, and the relief sought by defendant to enforce the prior orders followed the pattern that had developed by his failure to comply with prior orders of the court. We find no error here.

Lastly, plaintiff's assertion that the judge erred in ordering him to pay $5,000 on account of the arrearages is without merit. Aside from our conclusion that this was not an abuse of discretion, the order mandating such payment was entered on July 24, 2009. Plaintiff did not appeal that order until October 20, 2009, and was clearly out-of-time. R. 2:4-1(a)(requiring the filing of a notice of appeal within 45 days of the entry of a final judgment).

Affirmed.