Opinion
DOCKET NO. A-5611-13T4
11-29-2016
FANIA ANDREEVSKI, Plaintiff-Respondent, v. NIKOLA ANDREEVSKI, Defendant-Appellant.
Nikola Andreevski, appellant pro se. Fania Andreevski, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Koblitz and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1267-04. Nikola Andreevski, appellant pro se. Fania Andreevski, respondent pro se. PER CURIAM
Defendant Nikola Andreevski seeks to appeal from three post-judgment matrimonial orders. He is too late to appeal the order of May 3, 2013 denying his request to terminate alimony. See R. 2:4-1(a) (Appeals from final judgments or orders must be filed within forty-five days). Thus, we will consider only the order of April 4, 2014, again denying his application to modify alimony and the July 1, 2014 order denying his motion for reconsideration. We affirm substantially for the reasons expressed by Judge Steven J. Polansky in the thorough memorandum decision attached to the July 1, 2014 order.
Defendant has provided us with a letter from his doctor and the Social Security Administration, both dated after the date of the order on appeal. We disregard these documents as we review only the record that was before the motion judge. R. 2:5-4(a).
The parties divorced after thirty-six years of marriage. During their marriage, they owned a trucking business together. Defendant retained sole ownership of the trucking business and paid plaintiff Fania Andreevski permanent alimony pursuant to the final judgment of divorce. The parties also placed on the record at the time of their 2006 divorce that plaintiff would receive first right of refusal if defendant decided to sell the trucking business.
Defendant asserts that he is in failing health with ailments such as: "benign vertigo, cervical radiculopathy, bilateral hand pain and numbness, and low back pain" as well as depression. Defendant claims that these aliments leave him unable to work. His trucking business lost a contract with Ashley Furniture (Ashley) on December 14, 2012. On December 15, 2012, defendant's sixty-second birthday, he applied for social security benefits, asserting to the Social Security Administration (SSA) that he became disabled on December 14, 2012. Defendant effectively retired in December 2012 and stopped making alimony payments.
Plaintiff has suffered from severe health issues including kidney failure, for which she underwent a kidney transplant in 2006. Plaintiff has been unable to work since that time and has supported herself from social security disability payments and alimony received from defendant.
At a May 3, 2013 hearing, Judge Polansky heard plaintiff's motion to enforce defendant's obligation to pay alimony. Plaintiff alleged that defendant stopped paying spousal support in December 2012 when he retired and sold his trucking business. In response, defendant filed a cross-motion seeking to terminate alimony. Defendant argued that he could not afford to pay alimony because his trucking business lost a contract with its primary client, Ashley, and he was forced to retire at age sixty-two due to his failing health. As proof of the loss of business, defendant submitted a January 17, 2013 letter from Ashley stating it terminated the business relationship due to dissatisfaction with performance. Despite relying on this letter to prove the loss of his primary contract, defendant simultaneously argued that the letter was false and did not state the true reason for the termination of the contract, which he claimed was that Ashley was dissatisfied with the quality of his trucks. Defendant did not provide any information regarding his health or his efforts to secure any other business contracts.
On May 3, 2013, the judge denied defendant's motion to terminate alimony and granted plaintiff's motion to enforce the defendant's alimony obligation. Judge Polansky found that defendant had not established changed circumstances because his loss of income was within his control.
Defendant's subsequent appeal of this order was dismissed prior to a decision.
On April 4, 2014, the judge heard defendant's new motion seeking to reduce or terminate his alimony payments based on changed circumstances. Defendant argued that the most significant change that had occurred since the May 3, 2013 decision was that he was classified by SSA as disabled and approved for disability retirement, although he provided no documentation. Defendant claimed that his income was derived solely from social security disability payments because he was unable to work. Defendant claimed also that he had been unable to maintain his trucks because his alimony payments did not leave him with enough money to afford necessary repairs.
Defendant further claimed that there was nothing left of the trucking business as one of the trucks had been stolen, another returned in lieu of repossession and the final truck was traded in to pay for repair bills. Defendant did not submit an insurance claim to substantiate his assertion that a truck was stolen nor did he produce a bill of sale evidencing that he received proceeds from the sale of a second truck.
Defendant re-submitted the same letter from Ashley that he had submitted for the May 3, 2013 motion. The only new evidence that defendant submitted was a physician's report stating that he was unable to work at the same capacity that he had in the past.
The judge held that defendant had not established a substantial change in circumstances and denied his motion to reduce alimony. Judge Polansky found that defendant voluntarily decided to close his business and voluntarily elected to begin receiving social security benefits as of his sixty-second birthday. The judge further found that defendant did not provide any proof that he made any attempts to keep the Ashley contract, gain other customers or secure other employment. The judge also noted that defendant acted in bad faith by liquidating the trucking business, which generated income to pay the spousal support, without offering plaintiff the right of first refusal.
Defendant was ordered to make the remaining $4 0 00 lump sum payment, was found in violation of plaintiff's rights for failing to pay $1530 in counsel fees, and judgment was entered in favor of plaintiff in the amount of $40,784.46.
This amount included the arrears amount entered in the May 3 order. --------
In support of his motion for reconsideration, defendant submitted an April 16, 2014 report from the same physician who had submitted the previous note, this time stating that defendant was "unable to do any kind of work." However, the report did not state that any additional medical tests had been performed. The earlier note indicated such testing was needed in order to make a further assessment. Also, the doctor had not seen plaintiff since September 2013. For the first time, defendant submitted forty-eight pages of medical progress notes from this doctor. The judge found that defendant's motion was an attempt to reargue the same claims the judge had rejected in the April 4, 2014 order. Defendant did not submit any documentation from SSA.
Relying on our holding in Fusco v. Board of Education of Newark, 349 N.J. Super. 455, 463 (App. Div.) certif. denied, 174 N.J. 544 (2002), that a party may not receive reconsideration on the basis of information that it could have provided earlier, the judge focused on the two additional pieces of evidence that defendant submitted— his April 16, 2014 doctor's note and the records from his physician.
The judge held that the April 16, 2014 doctor's report did not constitute new evidence unavailable at the time the original motion was heard on April 4, 2014. The judge noted that the new report reached a different conclusion than the September 2013 report without providing a basis for the change. Its finding that defendant was "unable to do any kind of work" was not based on new testing. Neither the report nor the progress notes were a basis for reconsideration because they were both available before the April 4, 2014 hearing, although not presented at that time.
In deciding whether defendant's retirement constituted a change of circumstances, Judge Polansky relied on our decision in Silvan v. Sylvan, that under certain circumstances good faith retirement at sixty-five years old may constitute changed circumstances. 267 N.J. Super. 578, 581 (App. Div. 1993). The judge also relied on Deegan v. Deegan, which requires that a judge balance the advantage to the retiring spouse in reducing their alimony obligations, with the disadvantage to the payee spouse. 254 N.J. Super. 350, 358 (App. Div. 1992). Only if the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse, will retirement be viewed as a legitimate change of circumstances to support reduction. Ibid. The judge also found that defendant did not demonstrate an attempt to improve his diminished earnings as required by Donnelly v. Donnelly, 405 N.J. Super. 117, 130 n.5 (App. Div. 2009).
We affirm substantially for the thoughtful reasons expressed by Judge Polansky. This affirmance does not, however, preclude defendant from returning to court based upon a claim of good-faith retirement with sufficient proofs of declining health and age to support an application to modify spousal support.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION