Order Denying Defendant’s Request to Terminate His Alimony Obligation

Steuber v. Desmelyk

Docket No. A-600-19T2

Decided December 28, 2020

Submitted by New Jersey Family Lawyer, Jeffrey Hark.

In a recent unpublished decision the Appellate Division reviewed a trial court’s order denying defendant’s request to terminate his alimony obligation initiated by a Matrimonial Settlement Agreement (MSA) entered into just eight months prior.

In Steuber, after 7 years of marriage, the parties divorced. The judgment of divorce, entered by default, incorporated the MSA. The parties had no children together. In pertinent part, paragraph 4(A) of the MSA required that defendant pay plaintiff Susan Steuber $5834 1 per month in limited duration alimony for a period of sixty months. The MSA provided that defendant’s alimony obligation “shall terminate upon [plaintiff’s death], [plaintiff’s] remarriage, [defendant’s] death or after [defendant] has paid [sixty] monthly payments, whichever occurs first.”

Defendant was the sole owner of his interest in a business known as KMD Excavating, LLC (KMD). The parties agreed defendant would retain full ownership and responsibility of debts.

Since the entry of the JOD, defendant has not made one alimony payment.  Plaintiff moved before the Family Part seeking to enforce litigant’s rights since she had not yet received any alimony payments from defendant. In response, defendant cross-moved to modify or vacate the MSA under Rule 4:50-1 and terminate his alimony support obligation. He argued that he was entitled to relief or alternatively, had met his burden of showing a prima facie case of changed circumstances, warranting a plenary hearing.

Defendant founded KMD in 2007. In 2015, he was awarded a lucrative contract for the installation of water meter pits for Middlesex Water Company that spanned July 2015 through June 2018, which led to a “substantial increase in income[.]” In June 2018, following a New Jersey Department of Labor (DOL) investigation concluding that defendant failed to pay prevailing wages, certify his payroll, and committed other regulatory violations, defendant lost the Middlesex Water Company contract. He sold inventory to satisfy bills.

The DOL investigation also resulted in an $11,176 lien assessment against KMD, which defendant was unable to pay. Allegedly unbeknownst to defendant, the DOL lien disqualified his company from bidding on other public works contracts. According to defendant, his business struggled after losing this contract, leading to termination of four KMD employees and the sale of four pieces of equipment. In his certification, defendant stated he was unaware KMD lost the contract until 2019.

The trial court nonetheless granted plaintiff’s motion to enforce and denied defendant’s motion to modify and terminate his alimony.  Defendant had signed the MSA after knowing about the loss of the public contract.  Defendant had not demonstrated further steps taken to show that the reduction of income from $280,000 to $30,000 was anything but temporary.  Defendant had demonstrated an ability to earn a substantial income prior, and there was no evidence offered that he could not do it again.  What’s more, the fact that defendant was self-represented during execution of the MSA was immaterial, as defendant knew he was signing the agreement after most of the events complained of had already occurred.  Defendant appealed and the Appellate Division affirmed on the same grounds.

This case is also important to analyze a family judge’s power to decide cases.  When it comes to most issues a family judge decides, the Appellate Division’s standard of review is an abuse of discretion.  It is a very high standard to overcome, and as long as the judge ties the facts of the case to the law, the Appellate Division will likely affirm the judgment.  This solidifies the fact that it is vital to be successful at the trial court level, in front of the family judge the very first time, so an appeal is not even an issue.

At Hark & Hark, we help clients with domestic violence restraining orders, prenups, divorce, custody, domestic violence, child support, alimony issues and more.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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