Edward R. Weinstein, Esq.

The Judge Is Smarter Than Some People Think!

Throughout my career as a divorce and family law attorney, I have seen many folks who feel that they can, “play the system.” Many times, this involves the high conflict issue of alimony. Let’s call it the way it is; no one wants to pay alimony to their “ex.” While the lawyers at our law firm sympathize, we always give our client’s an honest assessment of their case throughout the divorce process, including the “hot button” issue of alimony. However there are times that, notwithstanding our advice to the contrary some folks proceed, pro se, thinking that they can “play the system” and avoid their alimony obligation. Some folks quit their jobs thinking that this will allow them to circumvent alimony payments. Others hurry right back to court immediately after the divorce thinking that they can convince a judge that alimony is unfair. All told, a judge of the Superior Court of New Jersey can see right through these vain and fruitless attempts to avoid paying alimony. Sometimes, these folks make the situation only worse for themselves when they have to pay their “ex’s” attorney’s fees if the court finds that they are acting in bad faith.

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This is an excellent example of why you should consult with a law firm who only handles divorce and family law. The lawyers at our law firm stand prepared to assist you or a loved one if they would like an honest assessment regarding potential or ongoing alimony payments. Following, please find a recently decided case the illuminates the foregoing.

In Karkoszka v. Karkoszka, father Krzyztof Karkoszka appealed from an order of the Superior Court of New Jersey, Family Part of Bergen County, dated March 20, 2015, that denied his motion seeking to modify his child support and alimony obligations, and awarded his ex-wife, Halina Karkoszka, counsel fees.

Krzysztof and Halina Karkoszka got married in April of 1998, and had two children together. Halina filed a complaint for divorce in October of 2012, and a Final Judgment of Divorce was entered on April 1, 2014, after a five-day trial. The divorce judgment obligated Krzysztof to pay Halina $ 1,100 every month in limited duration alimony, for fifteen years, and $ 749 every month in child support.

The child support and alimony awards were partly based on the fact that Krzysztof had previously been employed as a tile setter, full-time, but stopped working after the compliant for divorce was filed. The Family Part judge stated that he had “historic income as well as the ability to earn an income in a numbers of different areas,” and had the ability of working in the same area he was working at the time the complaint for divorce was filed. He also possessed a commercial driver’s license he could use to find work. Based on his previous work history, and the testimony given at trial the Family Part found that he was capable of earning between $ 50,000 and $ 65,000 a year. As such, the Family Part judge imputed $ 65,000 of annual income on to Krzysztof, and based the child support and alimony awards on that imputed income.

For the eleven months after the judgment of divorce of entered, Krzysztof filed three motions to modify his child support and alimony obligations. All three of the motions were denied, and Krzysztof did not appeal any of denials. He filed a fourth motion to modify his child support and alimony obligations on March 20, 2015. He argued that modification was warranted as there were changed circumstances because he was not earning the income imputed on to him by the Family Part, and just had another child who needed his support. As a result, Halina challenged the motion, and cross-moved to court to hold her ex-husband in contempt for not making his child support payments, and a grant of counsel fee’s.

After hearing oral argument, the court denied Krzysztof’s motion in an oral opinion, and found that he failed to make a prima facie showing of changed circumstances. He could not prove that the existence of a change of circumstance that effected his ability to earn the income imputed on him by the Family Part. Moreover, his supporting certification had no explanation for why he chose to accept a job that paid an hourly rate much lower than what he could otherwise be earning based on his qualifications and skills. Nor was he physically unable to do the job that the income imputation was based on.

Furthermore, the Family Part found that he did not submit various financial documents with his motion like his W-2 income tax forms, and a required Case Information Statement. The Family Part made note that the financial information he did provide was incomplete, and more troubling, inconsistent as he listed a monthly income that was not sufficient to cover his listed expenses, and he did not list any debt that correlated to this monthly deficiency. While the Family Part recognized that Krzysztof had fathered another child after the judgment of divorce was entered, the court did not consider the birth of this child as a valid change in circumstance warranting modification because the child’s birth was a result of Krzysztof’s voluntary decision.

Therefore, the Family Part of Bergen County denied Krzysztof’s motion to modify his child support and alimony obligations, and granted Halina’s cross-motion to hold her ex-husband in contempt of court, and awarded her $ 1,750 in counsel fees. Krzysztof appealed the order.

New Jersey Statute 2A:34-23 gives Family Part courts the power to modify child support and alimony awards, upon a finding of changed circumstances. Every single motion to modify child support or alimony rests upon the particular facts of its own case, and appellate courts have to recognize the broad discretion that the law gives to Family Law judges in these matters. The New Jersey Appellate Division will only reverse a Family Part judge’s decision in this matter if it was based on an impermissible basis, he or she considered inappropriate or irrelevant factors, did not consider controlling legal principles or made findings of fact that were unsupported by or inconsistent with the credible evidence.

To truly asses a claim of changed circumstances, a judge must examine the parties’ current situation and the situation when the order was first ordered. To establish changed circumstances, the moving party has the burden to prove that the existence of changed circumstances that warrant relief from the support obligations at issue. When the Family Part determined how much income to impute on to Krzysztof, the judge found that he failed to submit evidence regarding his alleged reasonable efforts to find a job outside of his previous job as a tile setter, and that based on his credentials and work history, he was capable of earning income in other fields. His motion for modification was only supported by the eleven-month period after the judgment of divorce was entered that he had not earned the income imputed on to him, upon which his child support and alimony obligations were based.

Krzysztof failed to show that he was not able to earn the income imputed on to him by the court, or that he had made reasonable efforts to find a job in a more lucrative position for which he was qualified. Conversely, the evidence he did submit confirmed that had did not try to find a job in positions that the Family Part thought he was qualified for, and upon which the Family Part based its determination of his imputed income.

The New Jersey Appellate Division held that the Family Part did not abuse its discretion when it denied Krzysztof’s motion for modification. The factual record supported the conclusion that Krzysztof did not prove any change in financial circumstances upon which the Family Part determined that he was able to earn the amount of income imputed on to him.

The New Jersey Appellate Division also rejected his claim that the birth of child after the judgment of divorce was entered was a sufficient change in circumstance that warranted a modification of his child support obligation, but for a reason different than the Family Part. The Family Part held that having a child was not a valid change of circumstance because it was a voluntary act. This logic is not consistent with the 1995 New Jersey Appellate Division case of Martinez v. Martinez, which held that a parent’s duty to support an child who had not yet been born and was not planned at the time of the original support order, is a factor, among others, that a court has to consider when analyzing whether there is a valid change in circumstances warranting modification of a child support obligation. As such the New Jersey Appellate Division rejected the Family Part’s logic that a birth of a new child could not support a finding of a change in circumstance.