Downgrading from a Porsche to a BMW

8/7/2019 Downgrading from a Porsche to a BMW

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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISION

DOCKET NO. A-5334-08T2

BARBARA FORMAN,(f/k/a FROST)

Plaintiff-Respondent,

v.

MARK FROST,

Defendant-Appellant.______________________________________________________

Argued September 15, 2010 - Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of NewJersey, Chancery Division, Family Part,Burlington County,Docket No. FM-03-1447-04W.

Gary L. Borger argued the cause forappellant (Borger Jones Matez & Keeley-CainP.A., attorneys; Mr. Borger, on the brief).

Sarah N. Martine argued the cause forrespondent (Adinolfi and Goldstein, P.A.,attorneys; Ms. Martine, on the brief).

PER CURIAM

Defendant Mark Frost appeals from portions of a May 14,

2009 post-judgment order granting, in part, the motion of

plaintiff Barbara Frost (now known as Forman) for enforcement of

litigant's rights. Defendant argues that the Family Part judge

erred in: (1) requiring payment of the equitable distribution

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award within 180 days, with the potential sanction of

incarceration in the event of non-compliance; (2) denying his

request to reduce his alimony obligation due to changed

circumstances; and (3) awarding counsel fees to plaintiff based

on findings of fact that do not have sufficient support in the

record to warrant such award. We are not persuaded by

defendant's arguments. Accordingly, we affirm the order as

modified.

On June 1, 2004, after thirty-six years of marriage,

plaintiff Barbara Frost filed a complaint for divorce against

defendant Mark Frost. The final judgment of divorce, entered on

August 25, 2006, by Judge Jeanne T. Covert of the Family Part,

described the marital standard of living and the projected

expenses of the parties based on that marital standard. The

judge found that the parties lived an upper-middle class

lifestyle that reflected expenditures between $28,000 and

$30,000 per month and fixed defendant's alimony obligation at

$9,500 per month.

Subsequently, on plaintiff's 2008 motion for enforcement of

litigant's rights heard by Judge Patricia B. Roe, defendant

cross-moved seeking, among other relief, a reduction in his

alimony obligation. Defendant noted that Judge Covert found his

gross annual income was $357,000, resulting in $214,000 annual


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disposable income, with $17,858 in disposable income per month.

He argued that his alimony obligation should be modified

because: (1) he had not drawn a salary from his law firm, Frost

& Zeff, for the last two years, but instead drew money in the

form of loans from the firm's line of credit; (2) Frost & Zeff

was in a dire financial state; (3) his actual income via Frost &

Zeff's income and credit line advances was only $304,000; (4)

his compliance with Judge Covert's order to lift the lien on the

marital home held by T.D. Bank North resulted in his being

forced to resort to using Counsel Financial (CF) as a lender at

an eighteen percent interest rate, since T.D. Bank North would

not relinquish the lien unless it was paid in full; (5) the

interest accrued from CF loans in the course of one year was

$171,000; (6) he was paying approximately $30,000 per year for

his son's graduate school and living expenses; (7) he wished to

rent the marital home as plaintiff no longer resided there; and

(8) he was "doing the best to tighten his belt," his example

being that he traded in his Porsche and leased a BMW, saving

$400 a month.

In an order entered August 1, 2008, Judge Roe denied

defendant's application for an order reducing alimony, stating

she was not "satisfied defendant ha[d] met his burden of

demonstrating a substantial change in circumstance."


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On February 27, 2009, plaintiff submitted a certification

in support of a motion to enforce litigant's rights, and on

April 16, 2009, defendant submitted a certification in

opposition to that motion and in support of a cross-motion

seeking a reduction in his alimony support obligation.

Defendant again maintained that he had experienced "changed

circumstances" that justified either a reprieve from or a

reduction in the amount of his alimony obligation. He

reiterated many of the circumstances the court had already

rejected, regarding his law firm's dire financial straits and

pending dissolution, his reduced income in 2007, his high

interest loan and his attempt to "tighten his belt," and further

argued that in 2008, Frost & Zeff operated at a loss requiring

him to draw money solely from the firm's line of credit1, he

opened his own firm and handled Frost & Zeff's outstanding cases

on a contingent fee basis, and in February 2009, he was

diagnosed with prostate cancer that extended beyond the margins

of the prostate.

On May 14, 2009, Judge James W. Palmer, Jr. heard oral

argument on the parties' motions and entered a post-judgment

1 Defendant submitted no information regarding how much money hedrew from Frost & Zeff's line of credit, constituting hispersonal income for 2008 or 2009.


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order that day, denying defendant's request for a reduction in

his alimony obligation. Judge Palmer found:

In support of his contention of

"changed circumstances," Defendant statesthat he was diagnosed with prostate cancer,he has only been able to take a salary inthe form of loans from his law firm, his lawfirm is in the process of dissolving and thefact that his law firm has not been able todraw a profit in recent years. With theexception of his cancer diagnosis, the Courtfound these events insufficient to meet the"changed circumstances" burden whenDefendant raised them in August of 2008.

The Court agrees with that finding in thatthese events are not permanent orsignificant changes that would warrantmodification. Further, Defendant has statedthat his law firm is in the process ofdissolving. However, Defendant has [alsostated] that he has opened his own firm,bringing with him many of the clients fromFrost & Ze[ff]. In fact, Defendantcertified that he was currently arguing atrial for a client. Therefore, although

Defendant's firm may be dissolving,Defendant is clearly not without employment.Therefore, the Court finds a modification ofDefendant's alimony obligation unwarrantedat this time.

Judge Palmer ordered defendant to pay plaintiff the

equitable distribution owed in the total amount of $461,646.01.

Defendant admitted he owed this amount but claimed he did not

have the funds to pay plaintiff. "The Court [did] not find this

a sufficient justification to allow him to ignore his financial

obligation any longer[,]" finding that he was "deliberately

tying up his money elsewhere." Judge Palmer's order noted that


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if defendant again failed to heed the court's order that he pay

plaintiff the three years past-due equitable distribution,

"[p]laintiff may bring a motion for enforcement that includes

sanctions ranging from further economic penalties to loss of

driver's license to incarceration. R. 5:3-7(b)."

The judge also granted plaintiff's request for counsel fees

and costs regarding the 2009 enforcement application, ordering

defendant to pay $4,597.50 directly to plaintiff's attorney.

Defendant filed a notice of appeal from Judge Palmer's May 14,

2009 order.

I.

Although defendant devotes a substantial portion of his

brief on appeal challenging the portion of Judge Palmer's order

that threatens incarceration if defendant fails to pay, in her

brief, plaintiff assents to the deletion of the discretionary

sanction of incarceration from the May 14 order, and disavows

any intention to seek incarceration in aid of her litigant's

rights.2 In light of that position, we decline to consider

defendant's challenge to that provision as not warranted

constitutionally or under the Court Rules, and we modify

2 Nevertheless, plaintiff maintains Judge Palmer was correct inissuing the remainder of the above order.


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paragraph seven of the order to delete the reference to

incarceration.

Besides, the issue of whether defendant may be incarcerated

for his continued failure to pay plaintiff equitable

distribution is premature. In Saltzman v. Saltzman, 290 N.J.

Super. 117, 124 (App. Div. 1996), we found that a party's

arguments on whether he should be incarcerated for failure to

pay child support were interlocutory. We stated:

[W]here the issue to be determined at thepost-judgment proceeding is whetherplaintiff should be incarcerated for failureto pay child support and his sole ground forresisting payment [was] his allegedinability to pay, the order directing him topay and the warrant to bring him before thecourt [we]re interlocutory. This [was]because his ability to pay and therefore

whether he w[ould] be incarcerated to compelhim to pay [we]re still to be decided at an

ability-to-pay hearing. Cf. In re Carton,48 N.J. 9, 24 . . . (1996) (a coercive civilorder is interlocutory; an order ofcommitment to enforce it would be final). . . .

[Id. at 124.]

Here, defendant was neither incarcerated nor was a warrant

issued to bring him before the court. Rather, the judge's order

merely noted that plaintiff could bring a motion for enforcement

that "include[d] sanctions ranging from further economic

penalties to loss of a driver's license to incarceration."


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Again, plaintiff has disavowed any intention to seek such relief

and accordingly, we have modified the order.

II.

Next, we address defendant's contention that the trial

court should have modified his alimony obligation due to his

change in financial circumstances. We find defendant's argument

unpersuasive on this point.

Because of the special expertise of the Family Part

judges, appellate courts "do not second-guess their findings and

the exercise of their sound discretion." Hand v. Hand, 391 N.J.

Super. 102, 111 (App. Div. 2007) (citing Cesare v. Cesare, 154

N.J. 394, 413 (1998)). See also Larbig v. Larbig, 384 N.J.

Super. 17, 21 (App. Div. 2006) (recognizing an abuse of

discretion standard of review of a Family Part judge's

determination whether to modify an alimony obligation based on

changed circumstances). To vacate a trial court's findings and

decision in a proceeding to modify alimony, the appellate court

must conclude either that the trial court: (1) "clearly abused

its discretion"; (2) "failed to consider 'all of the controlling

legal principles'"; (3) was mistaken in its findings of fact; or

(4) could not reasonably have reached its determination "on

sufficient credible evidence present in the record after


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consideration of the proofs as a whole." Rolnick v. Rolnick,

262 N.J. Super. 343, 360 (App. Div. 1993) (citations omitted).

Courts have the equitable power to fix alimony and child

support payments. N.J.S.A. 2A:34-23. The goal is to ensure

that both spouse and children may continue to live as they had

prior to the divorce. Weishaus v. Weishaus, 180 N.J. 131, 140

(2004); Lepis v. Lepis, 83 N.J. 139, 150 (1980). Those

determinations are, however, "always subject to review and

modification on a showing of 'changed circumstances.'" Lepis,

supra, 83 N.J. at 146 (quoting Chalmers v. Chalmers, 65 N.J.

186, 192 (1974)); N.J.S.A. 2A:34-23.

A changed-circumstances analysis necessarily requires

determining the starting point for such changes. Foust v.

Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001). Identifying

"[t]he marital standard of living is essential to an analysis of

changed circumstances regardless of whether the original support

award was entered as part of a consensual agreement or of a

contested divorce judgment." Crews v. Crews, 164 N.J. 11, 25

(2000).

However, in Donnelly v. Donnelly, 405 N.J. Super. 117, 127

(App. Div. 2009), we recognized that where a post-judgment

hearing was already conducted to assess changed circumstances

supporting a reduction in alimony, the judge in a later post-


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judgment motion regarding the same issue is not to disregard the

earlier ruling. We have noted:

[T]he judge was not required to wipe the

slate clean and consider a similarcontention regarding . . . earnings lessthan one year after the prior order as ifthe earlier hearing had never occurred. Tothe contrary, the judge [is] required toconsider not whether there [is] asubstantial change since the PSA but whetherthere was a substantial change since herendered his fact findings in [the priorpost-judgment hearing].

[Ibid.]

Although defendant did not receive a plenary hearing, as did the

defendant in Donnelly, his 2008 cross-motion for a reduction of

his alimony obligation raised the same arguments as his 2009

motion. In 2008, Judge Roe made findings of fact in denying his

request that were properly considered by Judge Palmer in 2009.

As the Supreme Court explained:

When an alimony order is reviewed, theprimary factors assessed to determine

whether the former marital standard ofliving is being maintained are: "thedependent spouse's needs, that spouse'sability to contribute to the fulfillment ofthose needs, and the supporting spouse'sability to maintain the dependent spouse at

the former standard." Other criteriainclude whether the change in circumstanceis likely to be continuing and whether theagreement or decree explicitly provided forthe change. Temporary circumstances are aninsufficient basis for modification.


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[Innes v. Innes, 117 N.J. 496, 504 (1990)(quoting Lepis, supra, 83 N.J. at 152).]

Generally, the courts will make modifications in order to

render a situation equitable and fair. Dolce v. Dolce, 383 N.J.

Super. 11, 19 (App. Div. 2006); see Lepis, supra, 83 N.J. at 161

n.12. However, the obligor has the burden of persuasion to

prove changed circumstances, Storey v. Storey, 373 N.J. Super.

464, 473 (App. Div. 2004), that is "whether 'changed

circumstances had substantially impaired the [spouse's] ability

to support himself or herself.'" Foust, supra, 340 N.J. Super.

at 316 (quoting Lepis, supra, 83 N.J. at 157).

It has been recognized that the increase or decrease in the

supporting spouse's income may constitute "changed

circumstances." Lepis, supra, 83 N.J. at 151; Martindell v.

Martindell, 21 N.J. 341, 355 (1956). Additionally, a "change in

. . . income" is "only one part of the calculus to be considered

in ruling upon" a motion for reduction of alimony obligations.

Donnelly, supra, 405 N.J. Super. at 129. The trial court's

assessment "requires not only an examination of the parties'

earnings but also how they have expended their income and

utilized their assets." Id. at 130. Only after the moving

party has made a prima facie showing of changed circumstances

may the court order discovery and hold a hearing to determine


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the supporting spouse's ability to pay. Lepis, supra, 83 N.J.

at 157.

"Courts have consistently rejected requests for

modification based on circumstances which are only temporary

. . . ." Lepis, supra, 83 N.J. at 151. Where a self-employed

party moves for a reduction in alimony, "'what constitutes a

temporary change in income should be viewed more expansively'"

as such an individual is "in a better position to present an

unrealistic picture of his or her actual income than a W-2

earner." Donnelly, supra, 405 N.J. Super. at 128-29 (quoting

Larbig, supra, 384 N.J. Super. at 23).

Defendant argues that he has suffered from a permanent

change in financial circumstances because (1) Frost & Zeff's

cost of doing business has increased as a result of the divorce;

(2) his income has decreased as a result of repaying loans for

the firm at a much higher rate of interest; and (3) the

financial condition of Frost & Zeff led to dissolution. He

further argues that he should not be required to borrow money to

meet his support obligations. Though he also cites his cancer

diagnosis as a changed circumstance in his certification, he

does not argue in his appellate brief that it has increased his

cost of living or affected his ability to work.


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Judge Palmer correctly stated that aside from the cancer

diagnosis, defendant's arguments in support of a finding of

changed circumstances are not materially different from those he

posed in his previously denied application for a reduction of

his alimony obligation in 2008. Furthermore, defendant offered

no information regarding his personal income drawn from the

firm's credit line in 2008 or 2009, and he did not present any

facts showing a change of living circumstances besides

downgrading from a Porsche to a BMW.

Like the defendant in Donnelly, supra, 405 N.J. Super. at

123, who similarly was a self-employed attorney alleging a

decline in firm performance necessitating that he borrow money

to meet his alimony obligations, defendant has not made a

showing that his circumstances are anything but temporary. He

has retained Frost & Zeff's clients and continues to work as an

attorney.

Also similar to the defendant in Donnelly, defendant

claimed a drastic reduction in income, but he continued to

maintain the lavish lifestyle he enjoyed during his marriage.

Id. at 129. If defendant has made additional changes to his

lifestyle besides driving a BMW instead of a Porsche, he did not

make any such adjustments known to the trial court.


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Significantly, the fact that defendant must borrow money to

meet his alimony obligations and maintain his lifestyle does not

constitute a change in circumstances because the parties

borrowed to maintain their standard of living during the

marriage as well. Hughes v. Hughes, 311 N.J. Super. 15, 34-35

(App. Div. 1998).

As for defendant's argument that the trial court should

have held a plenary hearing, we disagree. A plenary hearing is

not required in an application for modification of alimony "when

the material facts are not in genuine dispute"; however, when a

party "clearly demonstrate[s] the existence of a genuine issue

as to a material fact," a hearing should be held. Lepis, supra,

83 N.J. at 159. No such genuine issue of fact exists here.

III.

Finally, defendant argues that we should reverse and remand

on the issue of the trial court's award of counsel fees to

plaintiff because the court did not make specific findings of

fact with respect to this award. Rule 4:42-9, "Counsel Fees[,]"

reads in relevant part: "(a) Actions in Which Fee Is Allowable.

No fee for legal services shall be allowed in the taxed costs or

otherwise, except . . . . (7) As expressly provided by these

rules with respect to any action, whether or not there is a fund

in court." One such rule that expressly provides for an award


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of counsel fees is Rule 1:10-3. Under Rule 1:10-3, "allowing

for attorney's fees recognizes that as a matter of fundamental

fairness, a party who willfully fails to comply with an order or

judgment entitling his adversary to litigant's rights is

properly chargeable with his adversary's enforcement expenses."

Pressler, Current N.J. Court Rules, comment 4.4.5 on R. 1:10-3

(2011). "The authority to grant fees under this rule applies

only to violations of orders and judgments," and "are awardable

under this rule only to a party who has obtained relief." Ibid.

(citing Haynoski v. Haynoski, 264 N.J. Super. 408 (App. Div.

1993); Jersey City Redev. v. Clean-O-Mat, 289 N.J. Super. 381,

401 (App. Div.), certif. denied, 147 N.J. 262 (1996)). As

plaintiff prevailed on her motion for enforcement of judgment

under Rule 1:10-3, it was within the court's discretion to award

her counsel fees, and the absence of specific findings of fact

to that issue do not nullify the court's exercise of discretion

in that regard. Jersey City Redev., supra, 289 N.J. Super. at

405-06.

Affirmed as modified.

Downgrading from a Porsche to a BMW

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