GEORGETTE MORCOS VS. GEORGE MORCOS (FM-02-936-08, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1312-15T1
GEORGETTE MORCOS,
Plaintiff-Respondent,
v.
GEORGE MORCOS,
Defendant-Appellant.
Submitted May 10, 2017 – Decided May 31, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FM-02-936-08.
Kenneth C. Marano, attorney for appellant.
Traina & Traina, attorneys for respondent
(Jack A. Traina, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant George
Morcos appeals from the August 17, 2015 Family Part order that,
among other things, denied his motion to reduce his alimony
obligation to plaintiff Georgette Morcos, authorized the
recalculation of his child support obligation, and enforced his
obligations to provide health and life insurance and pay the
children's medical and college expenses. Defendant also appeals
from the court's November 2, 2015 order denying reconsideration.
After carefully reviewing the record and applicable legal
principles, we affirm.
We recount the procedural history of this matter in some
detail to lend context to the arguments raised by defendant on
appeal. The parties were married in November 1990 and have two
children. Plaintiff filed a complaint for divorce on October 10,
2007. After a four-day trial, the trial judge issued a judgment
of divorce (JOD) and a lengthy written opinion on January 13,
2009. The judge made extensive factual findings in support of his
decision to award plaintiff $2200 per month in child support and
$5000 per month in permanent alimony. The JOD recited that
defendant also agreed to: maintain health insurance for the
children until their emancipation; pay 100% of the children's
college costs and unreimbursed medical expenses; and provide
$500,000 in life insurance for the benefit of plaintiff and the
children.
In determining support, the trial judge found plaintiff's
testimony credible. In contrast, defendant "was not candid as to
his financial condition. [] Defendant purposely withheld
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financial discovery from [] [p]laintiff, the [c]ourt, and
[Stephen] Chait, [CPA]," who performed an estimate of value for
defendant's business, GM Financial Services, Inc. (GMF). After
analyzing defendant's earnings and expenses, the judge estimated
that defendant's gross annual income was approximately $206,000,
and the marital lifestyle was $14,170.05 per month. The judge
noted "[t]he tax returns do not support the marital lifestyle as
certified to by [] [d]efendant." With respect to plaintiff, the
judge found that, although she held a college degree in computer
sciences, her employment opportunities were limited because she
had not worked in a computer related field for many years while
serving as primary caretaker of the children, and because she had
been injured in an automobile accident that hampered her ability
to stand for extended periods. The judge concluded plaintiff had
the ability to earn between $16,000 per year based on her current
part-time employment and $22,000 if she secured full-time
employment.
On April 9, 2010, the trial judge granted defendant a
provisional reduction in alimony and child support. The judge
found that defendant had sold GMF to a former client, and entered
into an employment agreement with GMF pursuant to which he was to
be paid an annual base salary of $60,000 for a three-year period.
The judge further found that "[d]efendant did not act in bad faith
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in selling GMF given the substantial arrearage in alimony, child
support, and [] equitable distribution owed to [] [p]laintiff at
the time of the sale."
Defendant thereafter filed a motion to convert the
provisional reduction in support to a permanent reduction.
Following a period of discovery, the trial judge conducted a
plenary hearing on January 4, 2012. The judge found that
"[d]efendant's present income is limited to $60,000 per year and
that [] [d]efendant's income reduction from historical past is
non-temporary." The trial judge entered a memorializing order on
January 23, 2012, and an amended order on February 2, 2012,
reducing defendant's alimony payments to $2000 per month and his
child support payments to $276 per week.
Following the trial judge's retirement, on June 1, 2015,
defendant filed the motion currently on appeal. In pertinent
part, defendant sought to eliminate his child support obligation
and further reduce his alimony obligation. In his motion papers,
defendant maintained that his gross annual income was $55,000 in
2012 and 2013, and $45,000 in 2014, and that he had no benefits
or retirement plan. He also stated his belief that: (1) both
children had now graduated from college; and (2) plaintiff was
still employed by the same bank at a salary not less than $35,000
with full benefits including a retirement plan. Appended to the
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motion papers were defendant's 2012, 2013, and 2014 income tax
returns, all dated the previous day, May 31, 2015. Defendant
subsequently submitted an updated case information statement (CIS)
representing his annual salary was $45,000 - $48,000, and current
pay stubs indicating that during 2015 he had earned $29,692.35
through June 28, 2015.
Plaintiff opposed the motion, questioning the accuracy of
defendant's financial submissions. She also filed a cross-motion
to enforce various provisions of the JOD. Specifically, plaintiff
sought to compel defendant to: provide health insurance coverage
for the younger child; reimburse plaintiff for medical expenses
she paid for the children; provide proof of life insurance coverage
in the amount of $500,000; and pay for college expenses incurred
or to be incurred for the children. In her response, plaintiff
certified that the older child had graduated from college, but the
younger child was still in his junior year. Plaintiff further
attested that she had been temporarily disabled and unable to work
for seven months between 2013 and 2014, and was currently unable
to work more than part-time hours due to chronic neck and back
pain.
On August 17, 2015, a different Family Part judge issued an
order that, in pertinent part: (1) terminated child support for
the parties' older child based on his emancipation; (2) directed
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plaintiff to submit an updated CIS for the purpose of recalculating
defendant's child support obligation for the parties' younger
child; (3) denied defendant's request to reduce his alimony
obligation; and (4) granted the reliefs requested in plaintiff's
cross-motion. In his accompanying statement of reasons, the judge
wrote:
[T]he [c]ourt does not find that [] defendant
has made a prima facie showing of change[d]
circumstances warranting a reduction of his
alimony obligation since he does not allege
in his moving papers that [] plaintiff's
financial situation is different from that
when the current alimony obligation was
modified by the [c]ourt in 2012. The [c]ourt
also notes that [d]efendant's child support
obligation will now be reduced due to [the
older child's] emancipation. Furthermore,
defendant's pay stubs provided with his moving
papers show that he is earning $60,000[] per
year, which the [c]ourt notes is the amount
that was utilized when calculating defendant's
[current] alimony obligation.
In granting plaintiff's cross-motion, the judge noted she was
entitled to enforce defendant's obligations pursuant to the
relevant provisions of the JOD.
Defendant filed a timely motion for reconsideration, which
plaintiff opposed. Following oral argument, the judge entered an
order on November 2, 2015, denying the motion. In an oral opinion,
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the judge concluded defendant's motion "failed to meet the D'Atria1
standard for reconsideration." The judge further explained:
The [c]ourt also notes that in
defendant's own financial submissions which
the [c]ourt noted in this argument from June
2015 contained discrepancies. Most notably
the $5000 discrepancy in his pay stubs which
if calculated to the end of the year would
lead to an approximate salary of $60,000.
. . . .
The [c]ourt believes that [d]efendant's
income is on pace to be approximately $60,000
this year, which is what the [c]ourt used when
it set the alimony obligation back in 2012.
So for that reason the [c]ourt is going
to deny []defendant's motion for
reconsideration with respect to the alimony
obligation.
Likewise, the [c]ourt also [] agrees with
[] plaintiff that there is no basis or reason
to vacate the obligation to maintain the life
insurance at $500,000.
Again, the [c]ourt finds that the
hardship argued by [] defendant is frankly
self[-]imposed by not getting life insurance
earlier. I don't think [] plaintiff should
be penalized for [] defendant's failure to do
so.
The judge did, however, grant defendant some measure of
relief. The November 2, 2015 order required plaintiff to produce
her medical insurance information, and allowed defendant to
1
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
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reimburse plaintiff for the younger son's share of the insurance
premium if he was covered under plaintiff's insurance plan. The
judge also clarified the prior August 17, 2015 order, indicating
it was his intention to permit defendant to negotiate a student
loan payment plan with the loan providers rather than to make full
payment of the outstanding student loan balances within ninety
days.
Defendant now appeals the August 17, 2015 and November 2,
2015 orders. He argues that he showed the requisite change in
circumstances under Lepis v. Lepis, 83 N.J. 139 (1980), to warrant
modification of his various financial obligations. Specifically,
he contends that the motion judge erred in relying on his pay
stubs rather than his tax returns in calculating his new child
support obligation and in concluding that his current income had
not changed since the last modification in 2012. In addition,
defendant asserts that the judge erred in failing to find that
plaintiff was not working up to her income capacity, that his
changed circumstances warranted denial of plaintiff's cross-motion
to enforce his obligations under the JOD, and in failing to conduct
a plenary hearing on the various issues.
Having reviewed the record, we conclude that defendant's
arguments are without sufficient merit to warrant extended
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discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only
the following comments.
Our analysis is guided by well-settled principles. Alimony
and child support "may be revised and altered by the court from
time to time as circumstances may require." N.J.S.A. 2A:34-23.
To warrant such a modification, a showing of "changed
circumstances" is required. Lepis, supra, 83 N.J. at 146; see
also Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004).
Temporary or anticipated circumstances do not warrant
modification. Lepis, supra, 83 N.J. at 151. Moreover, "[t]he
party seeking modification has the burden of showing such 'changed
circumstances' as would warrant relief from the support or
maintenance provisions involved." Id. at 157 (citations omitted).
To determine whether there is a prima facie showing of changed
circumstances, a judge must consider the terms of the order at
issue and compare the facts as they were when that order was
entered with the facts as they are at the time of the motion.
Faucett v. Vasquez, 411 N.J. Super. 108, 129 (App. Div. 2009),
certif. denied, 203 N.J. 435 (2010). Notably, the court does not
determine whether there has been a substantial change in
circumstances from the initial JOD; rather, the court looks at
whether a change has occurred since the most recent modification.
Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009)
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(court's focus in determining change of circumstances must "be on
the length of time that had elapsed since the last milepost in
[the] post-judgment proceedings").
Once a prima facie case has been established and financial
disclosures have been evaluated, "the court must decide whether
to hold a hearing." Lepis, supra, 83 N.J. at 159. A trial judge
has the discretion to decide the motion exclusively on the papers.
Faucett, supra, 411 N.J. Super. at 128; Shaw v. Shaw, 138 N.J.
Super. 436, 440 (App. Div. 1976). "It is only where the affidavits
show that there is a genuine issue as to a material fact, and that
the trial judge determines that a plenary hearing would be helpful
in deciding such factual issues, that a plenary hearing is
required." Shaw, supra, 138 N.J. Super. at 440.
Our scope of review of the trial court's decision is limited.
Cesare v. Cesare, 154 N.J. 394, 411 (1998). "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); see also Storey v. Storey, 373 N.J. Super. 464, 470 (App.
Div. 2004). Each individual motion for modification is
particularized to the facts of that case, and "'the appellate
court must give due recognition to the wide discretion which our
law rightly affords to the trial judges who deal with these
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matters.'" Larbig, supra, 384 N.J. Super. at 21 (quoting
Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We ordinarily
accord great deference to the discretionary decisions of Family
Part judges. Donnelly, supra, 405 N.J. Super. at 127. We will
not disturb the trial court's decision on support obligations
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 motion judge's finding that defendant failed to
demonstrate the requisite change in circumstances is supported by
substantial credible evidence in the record. Given the history,
and the discrepancies in defendant's financial submissions, it was
within the judge's discretion to rely upon defendant's most recent
pay stubs rather than his tax returns to determine his present
earnings. Those pay stubs revealed that defendant was on track
to earn approximately $60,000 in 2015, which was the precise amount
the trial judge attributed to him in 2012 and formed the basis for
the existing support order. Accordingly, the judge did not abuse
his discretion in utilizing that $60,000 figure when recalculating
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defendant's child support obligation, in declining to reduce
defendant's alimony obligation, and in enforcing defendant's
remaining financial obligations in accordance with the agreed-upon
terms of the JOD.
Affirmed.
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