Lenore N. Zangrilli v. Jason D. Zangrilli
DOCKET NO. A-0542-19
Decided July 29, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey found sufficient credible evidence supporting trial court’s decision to reduce defendant’s financial obligations to the plaintiff.
The parties were married in 1994 and have three children together. During the marriage the Defendant was the director of marketing in New York City and was earning between $157,000 and $285,000 annually. In December of 2011, he was terminated from his position. Plaintiff did not work during the marriage until she obtained employment in 2012 earning $44,000 annually. The parties divorced January 3, 2013. The terms of the parties’ property settlement agreement (PSA) was that the defendant would pay alimony for fifteen years at $544.87 per week during 2013. Defendant would also pay $705.12 per week for the remainder of the term. He also agreed to pay child support of $314 a week during 2013 and $338 per week starting in 2014 until the children are emancipated.
Due to the loss of his job, the defendant was no longer able to pay that amount to the plaintiff. On October 3, 2013, the trial court found that the defendant was in violation of litigant’s rights for failing to pay alimony and child support. His outstanding obligations amounted to $19,393.89 during that time. Defendant stated that after his 2011 termination he was unable to secure a position in advertising due to the change in the job market. In October of 2017, he was able to get a job as a truck driver, only making between $54,600 and $65,520.
The court imputed to defendant an annual income of $65,000 and the plaintiff’s income of $40,000 would remain in place. The court set defendant’s alimony obligation at $160.25 per week. The court also directed the defendant to pay $50 a week toward arrears. The defendant’s child support obligation is now $189 per week with an additional $50 a week toward arrears.
The plaintiff argues that the trial court abused its discretion by making findings of fact inconsistent with, and not supported by competent evidence in the record; improperly shifted the burden of proof to plaintiff; failed to consider the burden on the plaintiff of reducing defendant’s financial obligations; and negated specific provisions of the PSA prohibiting the reduction of defendant’s imputed income below $150,000.
The Appellate Division sees no error in the trial court’s rejection of plaintiff’s argument that the two provisions should be read together to mean that defendant’s annual imputed income is fixed at $150,000, even if he earns less than that amount, but plaintiff may seek an upward modification of alimony under Lepis if defendant earns more than that amount. The flaw in this argument is that the provision preserving the right to seek relief under Lepis stated that “[n]either party” waives the right to seek a modification based on a substantial change in circumstances. It expressly includes defendant’s right to seek a 13 A-0542-19 modification, which would include reduction based on a change in his income. The two provisions cannot be harmonized in the way plaintiff suggests.
The Appellate Division found credible evidence supporting the trial court’s decision to reduce the defendant’s financial obligations to plaintiff. The defendant had applied for over 600 jobs and that determined that he had made sufficient efforts to find employment in the advertising field at or above the compensation level imputed to him in the PSA>
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