SUSAN PLOCHARCZYK v. ANDREW PLOCHARCZYK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0568-11T1

SUSAN PLOCHARCZYK,

Plaintiff-Respondent,

v.

ANDREW PLOCHARCZYK,

Defendant-Appellant.

November 19, 2012

Argued October 23, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0092-06.

Mark J. Molz argued the cause for appellant.

BarryJ. Wendtargued thecause forrespondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant Andrew Plocharczyk, appeals from a September 9, 2011 order of the Family Part denying his motion to reduce his alimony and child support obligations. Plaintiff argues the motion judge erred in denying his motion, and in failing to schedule a plenary hearing. For the reasons that follow, we reject these arguments and affirm.

I.

Plaintiff and defendant married in 1986 and divorced in 2008. They have two daughters together, one born in 1988, who is emancipated, and the other born in 1997, who resides with plaintiff.

Following a five-day trial, the parties were divorced on March 6, 2008, with the trial court ordering defendant to pay plaintiff permanent alimony in the amount of $600 per week and child support in the amount $324 per week. Defendant appealed and we affirmed, finding no basis to interfere with the trial judge's rulings. Plocharczyk v. Plocharczyk, No. A-3749-07 (App. Div. May 13, 2009). We noted, the trial judge's "decision is supported by the trial evidence and is entirely consistent with applicable law." Id. at 5.1

For purposes of context, we set forth the principal findings and conclusions of the judge following the divorce trial, as summarized in our previous opinion:

During the marriage, defendant provided the primary financial support for the family, which he earned by operating two restaurants. He ran the restaurants as cash businesses. The family enjoyed an upper middle-class lifestyle and paid cash for most of their major expenditures. They were able to acquire two houses, paid for extensive renovations, bought a time-share in Mexico, and accumulated substantial savings. They were also able to spend considerable sums on their daughter's participation in pageants.

The judge began his opinion by setting forth in detail his conclusions that plaintiff gave straightforward and credible testimony, while defendant's testimony was evasive and incredible. Those credibility determinations in turn were a significant factor in the judge's decisions regarding the parties' finances. Based on the reports of financial experts, and on credibility determinations, the judge found that defendant's income was considerably higher than that reported on his tax returns. This conclusion was also supported by defendant's settlement with the State Division of Taxation, in which he stipulated to a much higher annual income than he had reported on his returns. Based on this evidence, the judge imputed income of $ 170,000 per year to defendant.

Additionally, the judge concluded that defendant had no good-faith basis for selling one of his two restaurants during the pending divorce case, despite a court order prohibiting the parties from dissipating assets. The judge found that although defendant owed $70,000 in back taxes, he had other readily-available sources of funds to pay the taxes and had no need to sell the restaurant. Judge Haas also credited plaintiff's financial expert, who opined that the sale was not an arms-length transaction. The judge further found that defendant either had obtained, or could readily obtain, employment at another restaurant to replace any income lost as a result of the sale. Accordingly, the judge declined to reduce his calculation of defendant's annual income because of the sale.

[Id. at 2-3 (footnote omitted).]

The month after we issued our opinion affirming the trial judge's rulings, defendant filed a motion to reduce his alimony and child support. Before the motion was decided, the parties entered into a consent order on July 21, 2009, wherein plaintiff agreed to a reduction in alimony from $600 to $400 per week and a reduction in child support from $324 to $250 per week.2 She also agreed to accept a lump sum payment of $25,000 in full satisfaction of a $59,352.30 judgment the trial court had entered in her favor against defendant one year earlier. The order further provided that defendant would continue to pay $50 per week towards his arrearages, as well as a lump sum payment of $5,000 towards his arrearages in September 2009.

Two years later, on August 1, 2011, defendant filed another motion to reduce both his alimony and child support obligations.

In support of the motion, defendant submitted a four page certification, a family part case information statement (CIS), copies of the state and federal tax returns filed for himself and his business for 2010, and a pay stub from June 19, 2011. He also provided reports from his doctors regarding injuries to his left shoulder and elbow that have caused him problems, and required treatment, since at least 2009.

Defendant failed to append to his motion a copy of the July 21, 2009 consent order as well as copies of the case information statements he previously filed in the case, as required by Rule 5:5-4(a).3 Defendant's certification did not acknowledge that he had already received a substantial reduction in his support obligations as a result of the July 21, 2009 consent order. Instead, he asserted a general claim that his income had decreased dramatically due to the recession. He further claimed that the injuries to his left upper extremity no longer permit him to produce extra income by rehabilitating houses, as he had done in the past.

Relevant income tax returns from prior years were not provided by defendant. No information was provided as to the facts and circumstances that led to the entry of the July 21, 2009 consent order, or how they have changed since that date. Defendant's CIS was handwritten, with cross-outs and over-writes. It was also not fully completed. For example, the section titled "YOUR YEAR-TO-DATE UNEARNED INCOME FROM ALL SOURCES" was completely blank.

The judge who heard the motion was not the same judge who presided over the divorce trial. Following oral argument, the judge denied defendant's motion, without prejudice. Preliminarily, the judge concluded that "any change in circumstance based on going from two [sandwich] shops to one [sandwich] shop is disregarded by me completely, because that predated . . . [the] divorce in 2008." The judge further found the fact that defendant paid a $25,000 lump sum to plaintiff in 2009 undermined his claim that the alimony payments have caused him to be impoverished. The judge further found there was no evidence before him to show the sandwich shop industry had been hurt by the economy. From the judge's comments, it is clear that he found defendant's application to be inadequate to establish a prima facie case of changed circumstances to warrant any relief.

II.

A court has the equitable authority to modify support obligations set forth in consensual agreements. Lepis v. Lepis, 83 N.J. 139, 149. However, "[a]n application to modify an agreement is an exception, not the rule[,]" as judges should contemplate that agreements entered into in good faith "shall be performed in accordance with their terms." Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.), certif. denied, 180 N.J. 354 (2004); see Avery v. Avery, 209 N.J. Super. 155, 160 (App. Div. 1986) (noting "there is a strong public policy favoring stability of consensual arrangements for support in matrimonial matters") (citing Lepis, supra, 83 N.J. at 141).

"As a practical matter, spousal agreements have great potential for ensuring the desired degree of stability in support arrangements." Lepis, supra, 83 N.J. at 153. Accordingly, such agreements are "entitled to significant consideration." Glass, supra, 366 N.J. Super. at 372. Only where circumstances arise such that enforcement of the agreement becomes inequitable should an exception be made to the strict enforcement of the agreement's terms. Id. at 379.

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). In determining whether a downward modification is appropriate, the court may consider the supporting spouse's income and assets. Id. at 422.

When reviewing a decision on a motion to modify alimony, "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." Martindell v. Martindell, 21 N.J. 341, 355 (1956).

Pursuant to N.J.S.A. 2A:34-23, courts have the power to modify alimony and support orders at any time. The supporting spouse can seek to modify his or her alimony obligation upon a showing of "changed circumstances" that warrant relief from the alimony. Lepis, supra, 83 N.J. at 157. In order to establish a prima facie showing of changed circumstances, the supporting spouse "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Ibid.

As we noted in our previous opinion in this case, "it is the self-employed obligor who is in a better position to present an unrealistic picture of his or her actual income than a W-2 earner." Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

III.

In 2009, only sixteen months after the entry of the final judgment of divorce, defendant received a one-third reduction in his alimony obligation and a significant reduction in his child support obligation. If the parties had not entered into the consent order reducing defendant's support obligations, it is far from certain that defendant would have been granted any relief by the court. In Larbig, supra, 384 N.J. Super. at 22, we affirmed a trial judge's determination that a motion for a reduction in support filed "a mere twenty months after the parties' execution of the PSA[,]" alleged only a temporary change. See also Lepis, supra, 83 N.J. at 151 ("Courts have consistently rejected requests for modification based on circumstances which are only temporary[.]").

The motion judge was required to consider not whether there was a substantial change since the 2008 divorce judgment, but whether there was a substantial change since the entry of the consent order on July 21, 2009. See Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App.Div. 2009). "The party moving for the modification bears the burden of making a prima facie showing of changed circumstances." Miller 160 N.J. at 420.

Defendant's moving papers fell far short of establishing such a change. Defendant first failed to provide the court with the relevant information and documentation regarding the July 21, 2009 consent order, which should have been the starting point for analyzing defendant's motion. Defendant then failed to provide any evidence or argument to show what facts and circumstances have changed between July 21, 2009 and August 1, 2011, and how those changes have substantially impaired his ability to support himself.

Regarding defendant's assertion that he can no longer earn extra income renovating and selling houses, the judge correctly determined this claim did not warrant any relief based upon the motion record. This change would only be relevant if the judge in the divorce trial considered this past source of income when he determined defendant's income capacity and established the level of support defendant was required to pay. Further, the claim would only be relevant if it was not already advanced and considered at either the time of the divorce trial or at the time of the 2009 motion. As to these important issues, defendant failed to provide any information. The motion record therefore provided no basis for the court to find defendant's medical condition was a change in circumstances warranting relief.

There is no indication the court abused its discretion in denying plaintiff's application to adjust his alimony obligation in light of the deficiencies noted. Similarly, as no issues of material fact required resolution by the trial court, there was no basis for an evidentiary hearing. See Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988) (finding that a hearing is not required, or even warranted, in every contested proceeding for alimony modification, but only where "necessary to resolve a genuine issue of material fact").

Affirmed.

1 Defendant's appendix failed to include the written opinion of the trial court from the divorce trial as well as relevant documentation from a 2009 motion that resulted in a consent order granting defendant a substantial reduction in both his alimony and his child support obligations. See R. 2:6-1(a)(1)(I). Failure to supply documentation essential to the proper consideration of the issues hinders our review process. See Johnson v. Schragger, Lavine, Nagy & Krasney, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001).

2 At the time the consent order was entered, defendant was represented by his current counsel and plaintiff was pro se.

3 Rule 5:5-4(a) provides, in relevant part:

When a motion is brought for . . . modification of a prior order or judgment, a copy of the order or judgment sought to be . . . modified shall be appended to the pleading filed in support of the motion. When a motion or cross-motion is brought for the entry or modification of an order or judgment for alimony or child support based on changed circumstances, the pleading filed in support of the motion shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement.