LORRAINE BEAGIN v. KEVIN BEAGIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5414-09T2

LORRAINE BEAGIN, n/k/a LORRAINE

DIKDAN,

Plaintiff-Respondent,

v.

KEVIN BEAGIN,

Defendant-Appellant.

________________________________

Submitted March 1, 2011 Decided March 28, 2011

Before Judges Parrillo and Yannotti.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Passaic County,

Docket No. FM-16-123-03.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys for appellant (Lisa M. Fittipaldi and Sarah M. Mahony, on the briefs).

Geraldine E. O'Kane, attorney for respondent.

PER CURIAM

Defendant Kevin Beagin appeals from a June 21, 2010 order of the Family Part that effectively denied him a plenary hearing on his post-judgment application to modify or terminate his alimony obligation to plaintiff Lorraine Dikdan. We reverse and remand.

The procedural history is rather protracted, complicated no doubt by the involvement of several different judges over the years. The parties were divorced on July 14, 2003 and executed a property settlement agreement (PSA) on May 25, 2004. For purposes of determining defendant's spousal and child support obligations, the parties agreed to impute an annual income to defendant of $100,000. At the time, defendant owned and operated a business, Bam Bam, Inc., trading as Crossroads Caf , where he also worked as a bartender. The PSA set defendant's child support obligation at $265 per week and his alimony obligation at $375 per week.

In October 2005, the business filed for bankruptcy and defendant filed for personal bankruptcy. Defendant has neither owned nor operated a business since then. Instead, unable to find employment in the restaurant field, on March 13, 2006, defendant commenced working for the Bergen County Parks Department, earning $23,000 annually. However, the job provided him with what he considered to be an "excellent" benefits package health, prescription drug, dental and life insurance at no cost and allowed him to maintain those obligations on behalf of the parties' children.

One year after executing the PSA, on May 20, 2005, defendant filed the first of five motions to reduce or terminate his alimony obligation based on changed circumstances. His pro se motion was denied less than one month later by a Family Part judge without benefit of an evidentiary hearing. By then, defendant had accrued $13,469 in support arrears. A similar motion filed in October 2005, after which defendant sought legal representation, was denied on January 19, 2006 by another judge who ordered defendant to pay $13,469 by February 20, 2006.

Thereafter, defendant filed a third motion to reduce or eliminate his support obligations, relying on his personal and business bankruptcies, but while that motion was pending, the judge who denied defendant's first motion scheduled an ability to pay hearing for August 25, 2006, after a warrant was issued due to defendant's outstanding arrears. That hearing, however, never took place. Rather, on July 28, 2006, the judge who denied defendant's second motion, found that defendant satisfied a threshold showing of changed circumstances and scheduled a plenary hearing for September 26, 2006. That hearing also never occurred because after a court conference involving the parties and their counsel, the court issued a so-called "consent" order on September 27, 2006, which denied the instant motion to reduce or terminate defendant's support obligations; continued child support at $277 per week and alimony at $375 per week; established support arrears at $47,801.10; set income withholding through wage execution at $300 per week; allowed arrears to accrue; and stayed enforcement for so long as defendant complied with the terms of the order.

Because defendant's claimed net weekly salary of $459.35 exceeded his weekly support obligations, defendant filed a fourth motion for support modification in February 2008. Without the benefit of an evidentiary hearing, on March 28, 2008, the original judge denied defendant's motion to terminate alimony without prejudice and entered an order emancipating the parties' son as of November 1, 2007, and their daughter as of June 1, 2008. In addition, although defendant's request to have his alimony obligation eliminated was denied, the judge stated in the order that an ability to pay hearing would be set, at which time, defendant's request to have his child support arrears modified using his 2006 income would be heard and resolved. The hearing was also never held.

The matter was referred to yet a third Family Part judge, who then cancelled the plenary hearing set for August 11, 2008, and by letter of July 1, 2008, dismissed the case stating: "[s]ince there are no collection matters pending before the court, arrest warrants or anything similar, there is nothing for me to attach for an ability to pay hearing." Following receipt of the letter of October 6, 2008 by defendant's counsel requesting a plenary hearing, the judge responded by scheduling a settlement conference, which eventually occurred on April 17, 2009, but to no avail.

Consequently, defendant filed his fifth motion to terminate alimony on August 17, 2009. The matter was heard and denied by a fourth Family Part judge who, by order of October 27, 2009, ordered the parties to attend a post-judgment Early Settlement Panel (ESP) to address the alimony issue. The parties attended ESP on January 20, 2010, but were unable to resolve their differences. Thereafter, on May 6, 2010, the judge scheduled a post-judgment plenary hearing on the matter for June 21, 2010. When plaintiff's counsel later objected and requested withdrawal of the case from the plenary hearing calendar, the judge agreed and issued an order on June 21, 2010, finding that "there are no further outstanding issues to be determined by the [c]ourt."

This appeal follows, in which defendant raises the following issues:

I. THE TRIAL COURT ERRED IN APPLYING THE LAW BY FAILING TO ORDER A HEARING ON APPELLANT'S APPLICATION FOR MODIFICATION OF HIS ALIMONY OBLIGATION, DESPITE THE EXISTENCE OF MATERIAL QUESTIONS OF FACT.

 

II. APPELLANT IS ENTITLED TO A DOWNWARD MODIFICATION OF HIS ALIMONY OBLIGATION BASED ON A SUBSTANTIAL AND PERMANENT CHANGE OF CIRCUMSTANCES.

 

III. ANY MODIFICATION TO APPELLANT'S ALIMONY OBLIGATION SHOULD BE RETROACTIVE TO MAY 18, 2005 OR, IN THE ALTERNATIVE, TO MAY 26, 2006.

 

We agree that defendant is entitled to a plenary hearing on the issue of his continuing support obligations and therefore reverse and remand.

As this tortuous history makes abundantly clear, after several motions spanning over half a decade, defendant has yet to be fully heard on his application to modify his alimony obligation and other related relief. This, despite making a threshold showing of changed circumstances, as found in the court's order back on July 28, 2006, by virtue of defendant's personal and business bankruptcies and substantial decrease in earned income. To be sure, in the interim, a "consent" order was entered on September 27, 2006, and defendant never appealed a later adverse determination embodied in an order of October 27, 2009. However, we do not view the 2006 "consent" order as barring defendant's subsequent access to the court for all time, as the Family Part judge quite properly recognized in March 2008 when he granted defendant a plenary hearing, and especially where it appears defendant's financial condition continues to deteriorate as evidenced by defendant's mounting arrears. And with respect to the October 27, 2009 order, the denial of substantive relief was without prejudice as the court expressly directed that the parties attend ESP to address the alimony and arrears issues left unresolved by the court's last order. Defendant can hardly be faulted for complying with the court's command and exhausting the settlement process rather than filing an immediate appeal.

We discern no reason to deprive defendant of the plenary hearing he has sought since 2005. As determined in 2006, defendant has demonstrated a prima facie case of changed circumstances entitling him to an evidentiary hearing, Lepis v. Lepis, 83 N.J. 139, 159 (1980), on ostensibly disputed facts concerning his ability to pay, financial circumstances and underemployment, the permanency of his economic condition, and the marital lifestyle. Such genuine issues of material fact may not be decided merely on the papers. Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). Rather, an evidentiary hearing with oral testimony is warranted here. Only by such a procedure can a full and fair exploration of the issues and an informed adjudication thereof be assured. See Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968).

Reversed and remanded for further proceedings consistent with this opinion.