Opinion
DOCKET NO. A-2876-09T3
08-17-2011
KURT SNYDER, Plaintiff-Appellant, v. ELLEN SNYDER, Defendant-Respondent.
Weinstein Lindemann & Weinstein, attorneys for appellant (Jeffrey P. Weinstein, of counsel; Mr. Weinstein and Angela G. Kim, on the brief). Respondent Ellen Snyder has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Waugh.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1155-05.
Weinstein Lindemann & Weinstein, attorneys for appellant (Jeffrey P. Weinstein, of counsel; Mr. Weinstein and Angela G. Kim, on the brief).
Respondent Ellen Snyder has not filed a brief. PER CURIAM
Plaintiff Kurt Snyder appeals from Family Part orders dated October 23, 2009, and February 17, 2010, denying his request to reduce his child support and alimony payments to defendant Ellen Snyder, his former wife. We affirm.
The parties were married in 1990, and their judgment of divorce, which incorporated a property settlement agreement (the Agreement), is dated September 27, 2005. The parties have two children, ages fifteen and twelve. Both children have severe learning disorders and developmental delays and attend special needs schools.
At the time of the divorce, plaintiff was gainfully employed with Vernon Daniel Associates as a landscape architect, and he is still employed by the same firm. In a case information statement prepared during the divorce proceedings, plaintiff explained that his income varied from year to year:
Regular Salary is based on Profit Sharing only and varies year to year. A Salary Draw of $80,000/year is applied towards year-end profit share. My portion of profits in excess of $80,000 are paid in following year. In the event of a deficit or loss . . . the loss is deducted from the following year's salary.
Paragraph sixteen of the Agreement states that plaintiff's "gross 2004 income was approximately $150,000" and that defendant was unemployed. Based on plaintiff's income, the parties agreed plaintiff would pay defendant $1,360.66 per month for the support of the children, and alimony in the amount of $49,608 per year in equal monthly payments of $4,134.
In June 2009, defendant filed a pro se motion to reduce his alimony and child support obligations. In a certification dated June 20, 2009, plaintiff stated: "My current salary is $67,000 gross versus $150,000 gross prior to the divorce. The letter from my president of my company is not encouraging." The letter that plaintiff referred to, written by Thomas DeMuth on June 12, 2009, confirmed that plaintiff's "annual salary draw" was reduced from $80,000 to $67,000:
Over the past year, Vernon Daniel Associates has been negatively impacted by the downturn in the economy. Since the product we provide to our clients is considered a luxury item, we do not anticipate business improving until sometime in 2010.
Due to the poor economy and continuing losses experienced by the New Jersey office, Vernon Daniel Associates has decided to terminate the lease of our New Jersey office and warehouse. Kurt Snyder will remain in New Jersey as branch manager but will work from an office in his home.
In addition to closing our New Jersey office and warehouse, expenses have been aggressively reduced wherever possible. Effective January 2009, all branch manager salaries were reduced. In the case of Kurt Snyder, his annual salary draw was reduced from $80,000.00 to $67,000.00 and will remain so until business improves.
Defendant opposed plaintiff's motion, and she filed a cross-motion for payment of outstanding support arrears and other relief. In her certification, defendant stated that the children's needs prevented her from obtaining full-time employment. She also claimed that plaintiff's application was "brought in bad faith" because he had "a balance of over $46,800 in his checking and savings account, excluding the other investment accounts he lists." Defendant also claimed that the letter from plaintiff's employer indicated "nothing other than a temporary change of circumstance."
Oral argument took place on October 23, 2009. After carefully reviewing the parties' submissions, the court concluded that plaintiff failed to demonstrate that he was entitled to relief. Plaintiff's motion was denied without prejudice.
Plaintiff then retained counsel and filed a motion for reconsideration. In a supporting certification, plaintiff acknowledged that "his total compensation for the year is based on 50 percent of the net profits of the New Jersey office." Plaintiff also attached a copy of his 2007 federal income tax return that showed gross earnings from his employer in the amount of $144,801 and net profit from his landscape architecture business in the amount of $5273. Additionally, plaintiff reported dividends in the amount of $5293, and a total income of $152,777.
Following oral argument on January 22, 2010, the court denied plaintiff's motion because it did "not meet the requirements of [Rule 4:49-2]." The court memorialized its decision in an order dated February 17, 2010. This appeal followed.
Plaintiff presents the following arguments for our consideration:
POINT I
THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CONSIDER THE SUBSTANTIAL CHANGE IN THE FINANCIAL CIRCUMSTANCES OF THE PLAINTIFF INCLUDING THE DRAMATIC DECREASE IN THE INCOME OF THE PLAINTIFF OVER A SUBSTANTIAL PERIOD OF TIME AND DIMINUTION OF HIS ASSETS.
POINT II
THE COURT COMMITTED REVERSIBLE ERROR IN DETERMINING FINDINGS OF FACTS BASED UPON CONFLICTING CERTIFICATIONS OF THE PARTIES AND FURTHER SHOULD HAVE ALLOWED THE PLAINTIFF AND DEFENDANT TO ENGAGE IN DISCOVERY AND HAVE HAD THE BENEFIT OF A PLENARY HEARING.
Based on our review of the record, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). Nevertheless, we add the following comments.
The party seeking to modify an alimony or child support obligation "has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1956)). A reduction in a supporting spouse's income is one of the factors a court must consider when evaluating a motion to reduce support payments. Id. at 151. However, income from all sources must be considered, and a supporting spouse's capacity "to generate income" is also a significant factor. Miller v. Miller, 160 N.J. 408, 420-21 (1999). Furthermore, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary." Lepis, supra, 83 N.J. at 151; see also Innes v. Innes, 117 N.J. 496, 504 (1990) ("Temporary circumstances are an insufficient basis for modification.").
In the present matter, the trial court found that plaintiff failed to establish a prima facie case of changed circumstances, and the record before us supports that determination. Based on plaintiff's 2007 tax return and the letter from his employer, we agree that plaintiff was not entitled to relief because he only demonstrated a temporary change in circumstances "until business improves."
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION