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NOT FOR PUBLICATION WITHOUT THE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-3250-12T4

LORRAINE BEAGIN, n/k/a

LORRAINE DIKDAN,

Plaintiff-Respondent/

Cross-Appellant,

v.

KEVIN BEAGIN,

Defendant-Appellant/

Cross-Respondent.

________________________________

November 7, 2014

Submitted October 28, 2014 Decided

 
Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-123-03.

Kevin Beagin, appellant/cross-respondent pro se.

Geraldine E. O'Kane, attorney for respondent/cross-appellant.

PER CURIAM

In this post-divorce judgment case, defendant appeals from a February 6, 2013 order entered on remand (1) denying reconsideration of a September 27, 2012 order modifying his support obligations retroactive to August 17, 2009; and (2) awarding fees to plaintiff's counsel. Plaintiff cross-appeals from the February 6, 2013 order (1) denying reconsideration of the September 27, 2012 order modifying defendant's support obligations; and (2) terminating collection of defendant's arrears through probation after having granted plaintiff's request for the entry of a monetary judgment.

On the appeal, we affirm the award of fees, but remand and direct the judge to enter an order making defendant's modification of support obligations retroactive to February 2008,1 the date of defendant's fourth motion. On the cross-appeal, we affirm.

I.

The parties were divorced in 2003, and entered into a property settlement agreement (PSA) in 2004. At that time, defendant owned a restaurant and the court imputed an annual income of $100,000 to him. Defendant was obligated under the PSA to make weekly alimony payments in the amount of $375. In October 2005, his restaurant went out of business and he filed for bankruptcy.

Between 2005 and 2009, defendant filed five motions requesting a plenary hearing and seeking to modify his support obligations. In 2006, defendant found work earning $23,000 in income. Thereafter, defendant obtained two other jobs also earning substantially less than the imputed income.

In September 2006, without conducting a hearing, the court disposed of the first three motions by entering a consent order continuing defendant's support obligations; establishing the amount of arrears; permitting a wage execution; and allowing the arrears to accrue.

In February 2008, defendant filed a fourth motion to terminate his obligation to pay alimony contending that his support obligations exceeded his weekly income. On March 28, 2008, the court denied defendant's request to terminate his alimony payments without prejudice, but indicated that an ability-to-pay hearing would be scheduled to determine whether to modify defendant's arrears.

In August 2008, the court canceled the hearing. Defendant's counsel then wrote the court requesting that the hearing be rescheduled. The court attempted, unsuccessfully, to resolve the alimony issue without conducting the hearing by holding a settlement conference.

On August 17, 2009, defendant filed a fifth motion to terminate alimony and to renew his request for a hearing. On October 27, 2009, the court directed the parties to appear before an Early Settlement Panel (ESP). The parties participated in the ESP proceeding, but to no avail. The court then scheduled the ability-to-pay hearing, but on June 21, 2010, the court entered an order canceling it.

Defendant appealed from the June 21, 2010 order, and in an unpublished opinion, we reversed, remanded, and directed the court to conduct the hearing. Beagin v. Beagin, No. A-5414-09 (App. Div. Mar. 28, 2011). Recognizing that the March 28, 2008 order was without prejudice, we indicated that defendant should not be faulted for participating in the settlement conferences rather than filing an appeal. Id. at 7.

On remand, the judge conducted the hearing and took testimony from defendant. Plaintiff did not testify. The judge found that defendant demonstrated a prima facie showing of changed circumstances. The judge determined that defendant's income had dropped significantly after he filed for bankruptcy and his restaurant went out of business. The judge was satisfied by defendant's efforts to find employment. The judge entered an order on September 27, 2012, reducing defendant's alimony payments to $100 per week, retroactive to August 17, 2009, the date of defendant's fifth motion.

The parties moved for reconsideration of the September 27, 2012 order. Plaintiff also moved to reduce the amount of the arrears into a judgment. As part of her motion, plaintiff requested the attorney fees that she had incurred by defendant's failure to pay a previous counsel fee award entered in October 2009.2

In support of his motion for reconsideration, defendant argued that the judge erred by making the reduction in support obligations retroactive to August 17, 2009. He requested that the judge utilize the 2005 filing date of his first motion to modify his support obligations. The judge rejected defendant's request to use 2005 as a retroactive date because defendant had failed to appeal from the orders on the first four motions. The judge used, instead, the August 17, 2009 date because it was from that order that defendant had appealed.

In support of her motion for reconsideration, plaintiff argued that the judge erred by concluding that defendant had made a prima facie showing of changed circumstances. The judge rejected plaintiff's contentions, concluding that defendant was entitled to the reduction in alimony payments.

The judge also granted plaintiff's motion to enter a judgment and award fees. The judge awarded to plaintiff counsel fees in the amount of $1,250, entered a judgment on the arrears in the amount of $57,707.47, and ordered that the probation records be adjusted to reflect that the arrears have been terminated as a result of the judgment.

II.

On appeal, defendant argues that the judge erred by making his alimony modification retroactive to August 17, 2009 instead of 2005, the year when he filed his first motion seeking to modify his support obligations. Defendant contends that the judge erroneously concluded that defendant had not sought to appeal from the orders leading up to his fifth motion. Defendant also asserts that the judge erred by awarding counsel fees to plaintiff.

We reject defendant's request to make his reduction in alimony retroactive to 2005. In September 2006, the parties entered into a consent order disposing of defendant's third motion to modify his support obligations. Beagin, supra, slip op. at 3. Thus, defendant's request to use 2005 as the retroactive date is without merit.

We conclude, however, that the retroactive date should be the date of defendant's fourth motion in February 2008. He filed that motion contending that his weekly salary exceeded his weekly support obligations. Id. at 4. On March 28, 2008, the court denied his fourth motion without prejudice, but indicated it would hold an ability-to-pay hearing. Ibid. The court then canceled the hearing believing that there were no collection matters pending and the parties held settlement conferences. Ibid. As we indicated in the last appeal, we can hardly fault defendant for complying with the court's directive to engage in a settlement conference rather than appealing from an interlocutory order leaving arrear issues unresolved. Id. at 6-7.

After careful consideration of the record, we are satisfied that defendant's remaining argument that the judge erred by awarding $1,250 in counsel fees lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

III.

On the cross-appeal, plaintiff argues that (1) defendant failed to establish a prima facie case of changed circumstances warranting a reduction in alimony payments; (2) if defendant had made such a showing, then the earliest effective date for such a change is October 27, 2009; and (3) the judge erred by terminating the services of probation to collect on her judgment.

After careful consideration of the record, we are satisfied that plaintiff's arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons given by the judge in his oral opinions. We add the following remarks.

Alimony orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Thus, alimony obligations, whether set in judicial orders or parties' agreements, "are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citation omitted). "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157.

Our review of the trial court's decision is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Due to the Family Part's special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)). We will not disturb the trial court's decision on alimony unless we

conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.

[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996)].

Here, the judge found that defendant's loss of his restaurant led to a substantial decrease in income and constituted changed circumstances. See Innes, supra, 117 N.J. at 504 (indicating in general that a "decrease in the supporting spouse's income" constitutes changed circumstances and warrants modification of support obligations). Defendant demonstrated that the changed circumstances "substantially impaired" his ability to support himself. Lepis, supra, 83 N.J. 157. Looking at the proofs as a whole, we have no reason to disturb the judge's finding that changed circumstances existed warranting a reduction in alimony payments.

Finally, we reject plaintiff's contention that the judge erred by terminating the services of probation to collect on her judgment. The judge granted plaintiff's request to reduce the outstanding arrears to a judgment and plaintiff now has a monetary judgment. She may collect on that judgment just like any other creditor and is now responsible for filing the judgment with the Clerk of the Superior Court. R. 5:7-5(a), (g); see also City of Philadelphia v. Bauer, 97 N.J. 372, 378 (1984) (noting that when a penalty is reduced to judgment, it is treated as a monetary judgment).

IV.

On the appeal, we affirm the award of counsel fees, but remand to the trial court for an entry of an order making defendant's modification of support obligations retroactive to the date of his February 2008 motion. In light of the entry of that order, the trial court should reconsider the amount of the arrears and enter a new judgment for the arrears accordingly. On the cross-appeal, we affirm. We do not retain jurisdiction.

1 The record on appeal is unclear as to the specific date in February 2008 when the motion was filed.

2 Defendant did not timely appeal from the October 2009 order.