Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Will I Lose My Alimony If My Ex Voluntarily Reduces Their Income?

            No absent a New Jersey Family Court ordering that the payor of alimony reaching retirement age consistent with our newly amended alimony law.  The attorneys at our law firm have kept a close eye on all alimony cases that provide both lawyers and judges alike for the New Jersey court’s application of our modified alimony laws.  In the following case, the court determined that because the payor of alimony voluntarily closed his business, his lawyer’s application to terminate alimony was denied. 

            In Andreevski v. Andreevski, husband Nikola Andreevski appeal from two orders of the Superior Court of New Jersey, Family Part of Camden County, dated April 4, 2014 that denied his motion to modify alimony, and July, 1, 2014 that denied his motion for reconsideration. He also appealed an order dated May 3, 2013 that denied his motion to terminate his alimony obligation, but the appellate panel stated that he filed his appeal for this motion too late. The New Jersey Appellate Division affirmed form the same reasons stated in Judge Steven J. Polansky’s comprehensive July 1, 2014, and found that Nikola’s  changed circumstances were within his control, and properly denied the alimony modification motion because Nikola voluntarily decided to close his business and begin receiving social security.

            Nikola and Fania Andreevski divorced after almost thirty-six years of marriage. During their many years of marriage, the owned a trucking business together. As per the final judgment of divorce, Nikola kept sole ownership of the business, and paid Fania permanent alimony. The record also showed that at the time of the divorce in 2006, that the parties agreed that Fania would get first right of refusal if Nikola chose to sell the trucking business.

            At the time of the appeal at issue,  Nikola claimed that his health was failing, and that he suffered from various ailments like cervical radiculopathy, benign vertigo, lower back pain, hand pain and numbness, in addition to depression. He argued that because of these ailments he was not able to work. The trucking business had lost a major contract with Ashley Furniture on December 14, 2012. The next day, December 15, 2012, was Nikola’s sixty-second birthday, and he applied for social security benefits the very same day. He asserted to the Social Security Administration that he became disabled on December 14, 2012. Curiously, Nikola also retired in December 2012, and stopped making his alimony payments.

            Fania also suffered from serious medical problems, including kidney failure. Her condition was so severe that she had to have a kidney transplant in 2006. She had been unable to work since her kidney transplant, and was supporting herself through social security disability payments and the alimony she received from Nikola.

            On May 3, 2013, Judge Polansky heard Fania’s motion to enforce Nikola’s alimony obligation. Fania had alleged that Nikola had stopped paying his alimony payments in December 2012, after he retired and sold the trucking business. Conversely, Nikola filed a cross-motion in which he sought to terminate his alimony obligation. He argued that he could no longer afford to pay his alimony obligation because the trucking business had lost a major client, Ashley Furniture, and he had no choice but to retire at sixty-two because of his deteriorating health.

 As evidence to support his assertion of a loss of business, Nikola provided a letter from Ashley Furniture dated January 17, 2013, that stated it terminated the business relationship because they were not satisfied with performance. Even though Nikola relied on this letter to prove that he lost a primary client, at the same time he also argued that the letter was not true and did not state the real reason the contract was terminated. He claimed that Ashley Furniture was actually not satisfied with the quality of the trucks. Nikola did not submit any documentation or evidence relating to his health, and his effort to try and find any other business contracts.

The judge denied Nikola’s motion to terminate alimony on May 3, 2013, and granted Fania’s motion to enforce her ex-husband’s alimony obligation. The Family Part judge found that Nikola failed to establish a showing of changed circumstances because his loss of income was actually within his control.   The judge then reviewed Nikola’s new motion to reduce or terminate alimony payments based on changed circumstances on April 4, 2014. Nikola argued that since the May 3, 2013 order the Social Security Administration had classified him as disabled and approved him for disability retirement, even though he did not provide any documentation to prove the same. He contended that his only source of income now what from social security disability payments as a result of him not being able to work. He further contended that he was not able to maintain his trucks because he did not have enough money, after making alimony payments, to afford the necessary repairs.

Nikola also maintained that there was nothing left of his trucking business because one truck had been stolen, another repossessed, and the last truck he traded in to pay for outstanding repair bills. However, Nikola never submitted an insurance claim that one of his trucks was ever stolen. Similarly, he could not produce a bill of sale to prove that he actually received funds from the sale of the second truck. The only new evidence that Nikola submitted in in this motion was a doctor’s report that stated he was not able to work at the same level he had in past.

The judge held that Nikola had failed to establish a substantial change in circumstance that warranted a modification of his alimony obligation, and denied his motion. The Family Part judge found that Nikola had voluntarily chosen to close his business, and voluntarily chose to begin receiving social security benefits on his sixty-second birthday. Furthermore, the judge found that he could not provide any proof that he actually tried to keep the Ashley Furniture contract, get other customers, or find other employment. Moreover, the judge noted that he acted in bad faith when he liquidated the trucking business, that generated income to pay for the alimony obligation, without first offering his ex-wife the right of first refusal. The Family Part court ordered Nikola to pay the remaining $ 4000 lump sum payment, found him in violation of Fania’s rights by failing to pay her $ 1,530 in attorney’s fees, and also entered a judgment in Fania’s favor for $ 40,784.46.

Nikola filed a motion to reconsider, and submitted a doctor’s report dated April 16, 2014 in support. This report stated that he was not “unable to do any kind of work.” The report, however, did not show that any other medical rests had been done, even though the first report stated that such testing was needed to make a further assessment. He did not provide any further documentation from the social security administration. The judge found that this motion for reconsideration was just a way for Nikola to try and reargue the same claims that were rejected in the April 4, 2014 order. 

A litigant cannot receive reconsideration based on information that could have been provided before. The Family Part judge held that the doctor’s report dated April 16, 2014, was not new evidence that was not available at the time the original motion was heard. The new report came to a different conclusion than the first one, but did not state why. The report’s finding that Nikola was “unable to do any kind of work” had no basis in new testing. Neither the progress notes nor the report were a reason to grant reconsideration as they were both available before the hearing, but were not provided at that time. The New Jersey Appellate Division affirmed for the same reasons stated in Judge Steven J. Polansky’s comprehensive July 1, 2014, and found that the Family Part properly granted Fania’s motion because defendant’s changed circumstances were within his control, and also properly denied the alimony modification motion because Nikola voluntarily decided to close his business and begin receiving social security.

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