DAVID LAX v. FRANCES LAX

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAVID LAX,

Plaintiff-Appellant,

v.

FRANCES LAX,

Defendant-Respondent.

_____________________________________________________________

October 24, 2014

 

Submitted July 22, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2855-08.

Robert T. Corcoran, P.C., attorneys for appellant (Mr. Corcoran, Judith S. Miller and Karen M. Venice, on the brief).

Michael J. Pasquale attorney for respondent.

PER CURIAM

In this matrimonial post-judgment matter, plaintiff David Lax appeals from an order entered by the Family Part on April 12, 2013, denying his motion to reduce his child support and alimony obligations. Because plaintiff failed to establish a change of circumstance warranting such relief, we affirm.

I.

The relevant background facts are as follows. The parties married on September 21, 1986 and divorced on August 7, 2008. Their final judgment of divorce incorporated a Property Settlement Agreement (PSA) dated May 13, 2008, in which plaintiff agreed to pay defendant permanent alimony in the amount of $7000 per month and child support of $1735 per month.

In April 2011, plaintiff filed an application to modify his support obligations. This request set in motion a series of overlapping cross-motions that culminated in a four-day plenary hearing that extended from June through August, 2012. Plaintiff sought to establish changed circumstances based upon his financial situation and defendant's alleged co-habitation. Following the hearing, the judge ruled that cohabitation did not exist, but plaintiff had demonstrated a change in his financial circumstances "by virtue of his personal and business bankruptcy."

On October 17, 2012, the court held an ability-to-pay hearing to consider plaintiff's modification request. The judge heard testimony from plaintiff, defendant, plaintiff's expert Dr. Jan Jorgensen, and reviewed documentary evidence. The judge rendered an oral opinion in which she made credibility determinations and imputed annual income to plaintiff at $115,000 and to defendant at $24,000. The judge reduced plaintiff's alimony obligation to $2000 per month and filed a confirming order to that effect on December 4, 2012.

Subsequently, defendant filed a motion for reconsideration. In opposition to the motion, plaintiff provided information that he obtained employment with Tyndall Enterprises, LLC as of January 14, 2013, earning an annual salary of $55,000 per year. The judge denied reconsideration but amended the December 4, 2012 order on January 30, 2013, and February 25, 2013, to address other matters unrelated to this appeal.

On March 1, 2013, plaintiff filed yet another motion seeking, among other things, to reduce his support obligations. He alleged his new income of $55,000 should be used to calculate alimony rather than the income imputed to him in the December 4, 2012 order. Defendant opposed the motion and filed a cross-motion seeking various forms of enforcement relief.

A different judge heard oral argument on April 5, 2013, and entered an order that denied plaintiff's motion. The judge noted plaintiff failed to establish a change of circumstances "subsequent to [the court's] decision of February 25, 2013." The judge later supplemented the order with written findings of fact and conclusions of law, pursuant to Rule 2:5-1(b). The judge concluded plaintiff did not establish a change of circumstances because "his salary at the time that he filed this motion (February 20, 2013) was the same salary he enjoyed when he filed his motion (January 30, 2013) and asked [the judge] to reconsider (or relieve him from) her December 4, 2012 Order." The judge entered an order denying plaintiff's motion to modify his support obligations. This appeal followed.

Plaintiff raises the following arguments

I. THE TRIAL COURT'S IMPUTATION OF A $115,000 INCOME TO PLAINTIFF AND ITS HOLDING THAT HE FAILED TO THEREAFTER ESTABLISH A CHANGE IN CIRCUMSTANCE SUFFICIENT TO JUSTIFY A DOWNWARD MODIFICATION IN SUPPORT WHEN HE COMMENCED EMPLOYMENT AT A SALARY OF $55,000 MUST NOT BE UPHELD AS THE COURT'S FINDINGS RESULTED FROM AN ABUSE OF DISCRETION AND ARE NOT SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD.

II. THE TRIAL COURT'S IMPUTATION OF $115,000 INCOME TO PLAINTIFF IN ITS DECEMBER 4, 2012 DECISION WAS AN ABUSE OF ITS DISCRETIONARY POWERS AND IS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT'S APRIL 12, 2013 ORDER FINDING THAT THERE WAS NO CHANGE IN CIRCUMSTANCE SUFFICIENT TO WARRANT A DOWNWARD MODIFICATION IN PLAINTIFF'S SUPPORT OBLIGATION AND REAFFIRMING THE PRIOR ORDERS OF DECEMBER 4, 2 012 AND FEBRUARY 25, 2013 RESULTED FROM AN ABUSE OF THE COURT'S DISCRETION, AND IN ANY EVENT, WAS BASED UPON FINDINGS OF FACT THAT ARE CLEARLY CONTRARY TO THE EVIDENCE AND MUST NOT BE UPHELD.

a. The Court's April 12, 2013 Order Finding No Change in Circumstance Sufficient to Warrant a Downward Modification in Plaintiff's Support Obligation Resulted From an Abuse of the Court's Discretion and Must Be Reversed.

b. The Court's April 12, 2013 Order Finding No Change in Circumstance Sufficient to Warrant a Downward Modification in Plaintiff's Support Obligation Was Based Upon Erroneous Findings of Fact and Must Be Reversed.

After careful review of the record in light of the claims advanced by both parties, we conclude plaintiff failed to establish changed circumstances to warrant modification of his support obligations. We find plaintiff's remaining arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

II.

Our scope of review of the trial court's decision is limited. As a general rule, "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) (citations omitted). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, we review the Family Part's interpretation of the law de novo without any special deference. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In Points I and II, plaintiff argues the trial court erred in imputing income to him of $115,000. We decline to address these claims because plaintiff has not timely appealed the December 4, 2012 order.1 See R. 2:4-1(a) (appeals from final court orders shall be taken within forty-five days of their entry). We, therefore, limit our review to the April 12, 2013 order listed in plaintiff's Notice of Appeal and Civil Case Information Statement.

Plaintiff contends his actual $55,000 salary constitutes a change in circumstances warranting a downward modification of his alimony obligation and is a more accurate reflection of his earning capacity than $115,000. We disagree.

Our scope of review of the trial court's decision is limited. "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)) (citations omitted). A court may modify support obligations on a showing of changed circumstances. See N.J.S.A. 2A:34-23(c); Lepis v. Lepis, 83 N.J. 139, 145-46 (1980).

The court does not determine whether there has been a substantial change in circumstances from the initial property settlement agreement; rather, the court looks at whether a change has occurred since the most recent modification. See Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009) (holding the court's focus in determining change in circumstances must "be on the length of time that had elapsed since the last milepost in [the] post-judgment proceedings").

"Courts have consistently rejected requests for modification based on circumstances which are only temporary." Lepis, supra, 83 N.J. at 151. Premature filing of a Lepis motion will justify its denial on the ground that the change has not been shown to be a permanent condition or of lasting duration. Larbig, supra, 384 N.J. Super. at 23; see also Donnelly, supra, 405 N.J. Super. at 128 (explaining that Lepis motion was properly denied following similar motion filed nine months earlier). Moreover, "it is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances." Donnelly, supra, 405 N.J. Super. at 130 n.5.

The December 4, 2012 order imputing $115,000 per year income to plaintiff represents the starting point from which the court should determine whether there has been a change in circumstances. See Larbig, supra, 384 N.J. Super. at 22-23 (noting that the motion judge "correctly focused on the fact that defendant's motion was filed a mere twenty months after . . . the entry of the judgment of divorce" and correctly concluded that, even if the business was doing poorly as alleged, the change was temporary).

Plaintiff's motion, filed a mere three months after the last order, fails to include any evidence to show his $55,000 salary is not a temporary situation. The record on appeal is devoid of any evidence that plaintiff made "diligent efforts" since the December 4, 2012, order to find employment at a salary commensurate with the established earning capacity. Nor does the record demonstrate plaintiff made a prima facie showing that he was permanently incapable of obtaining employment at his potential earning capacity.

The motion judge found plaintiff's financial position had not changed since the last court proceeding. While we agree the judge's written decision misstated which party filed the motion for reconsideration, we consider that error to be harmless and inconsequential, in light of the record that clearly demonstrated that defendant filed the reconsideration motion. In the end, the judge did not err in the final determination that plaintiff had not established a change of circumstances. See State v. McLaughlin, 205 N.J. 185, 194-95 (2011) (noting that an appellate court may consider a basis different than the trial court to sustain the trial court's evidential ruling); see also Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973) (holding that appeals are taken from judgments, not from oral or written decisions), certif. denied, 64 N.J. 513 (1974). An order of judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968).

Affirmed.


1 Plaintiff's Notice of Appeal, filed April 19, 2013, did not identify the December 4, 2012 order as being appealed. Even if plaintiff intended to challenge the December 4, 2012 order, the notice of appeal was filed far beyond the deadline required by Rule 2:4-1(a), and plaintiff has not sought permission to extend the time to appeal that order. R. 2:4-4. We note that plaintiff had more than ample opportunity to request reconsideration of the December 4, 2012 order before the Family Part judge who entered the order, in the January and February 2013 proceedings. Yet, he did not do so.