ZLATKO CUKAR v. CATHERINE CUKAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5950-03T25950-03T2

ZLATKO CUKAR,

Plaintiff-Respondent,

v.

CATHERINE CUKAR,

Defendant-Appellant.

_______________________________________________________________

 

Argued October 24, 2005 - Decided

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-92-97.

John A. Craner argued the cause for appellant (Craner, Satkin & Scheer, attorneys; Mr. Craner, on the brief).

Mariann C. Murphy argued the cause for respondent (Salvaggio Garibian, attorneys; David F. Salvaggio and Ms. Murphy, of counsel and on the brief).

PER CURIAM

Defendant, Catherine Cukar, appeals the Family Part's May 28, 2004 order, memorializing the court's oral decision of February 23, 2004, denying defendant's motion for alimony due to change in circumstances. Defendant also appeals the May 28, 2004 order denying her motion for reconsideration.

Defendant and plaintiff, Zlatko Cukar, were divorced, after a twenty-five year marriage and two children, both of whom are now emancipated, by judgment of divorce entered November 14, 2000. From 1965 to March 2000, defendant was employed at American President Lines (APL) first as a secretary and for the last twelve years as a human resources (HR) or administrative specialist. Defendant became certified as a HR specialist while employed by APL. During the marriage, the parties earned approximately the same income and contributed equally toward running the household and the children's expenses. During the final year of the marriage, defendant earned $51,500 and plaintiff earned $54,000.

In March 2000, eight months prior to the divorce, defendant was laid off from APL but was granted one year's severance pay, including medical benefits but excluding profit sharing. At the time of the divorce, defendant had not been rehired nor had she found alternative employment.

The parties negotiated a property settlement agreement, the terms of which were incorporated in the judgment of divorce.
According to defendant, the court suggested that a request by her for alimony was premature, since it was possible she could get another job at the same or better salary. The divorce judgment awarded no alimony but provided in paragraphs 11 and 16, in accordance with the parties negotiated settlement:

11. The parties agree and understand that there is no alimony paid by either of them under the terms of their agreement but that defendant may return at a later date and ask that the Court consider a request for alimony if she is unable to replace her job with a reasonably comparable one.

. . . .

16. The parties agree that they will not be able to maintain the marital lifestyle after divorce and they have placed the differences on the record on this date and the Court has so found.

The parties agreed that the settlement was fair, reasonable, equitable and just under all of the facts and circumstances.

In August 2002, defendant filed a "motion for alimony due to change in circumstances" in which she sought $750 per week in alimony. In her certification, defendant contended that "in addition to not being able to find a comparable job or a comparable income, I am not able to even come close to the lifestyle we had prior to our divorce . . . ."

Defendant contends the language of paragraph 11 entitled her to alimony. In support of that contention, defendant further certified, "I am now seeking to exercise my right under paragraph 11 . . . to have my former husband contribute to my support by way of alimony." After several procedural issues concerning discovery were decided, the Family Part ultimately conducted a plenary hearing over three days in February 2004.

Defendant testified that she had actively sought employment following her termination by APL, seeking work in HR or administrative work and had made fifty to sixty job applications, registered with two employment agencies, and had six interviews over that period of time, none of which resulted in a job offer. Defendant asserted that the only job she was able to obtain, from the time of divorce to the time of plenary hearing, was as a receptionist/bookkeeper for a dentist, without benefits, starting at $13 per hour and ending at $16 per hour. She ultimately earned a gross salary of $640 for a forty hour week. Defendant's actual earnings with the dentist, however, were $23,825 in 2001; $9,630 in 2002; and $9,512 in 2003 because of gaps in her employment. She was laid off for a time while the dentist had surgery and she was forced to leave her employment because of surgeries for a detached retina that she was required to undergo and from which she ultimately lost the sight in her left eye. Defendant's employment with the dentist ended in April 2003, ten months before the plenary hearing. Defendant testified that she also sought to obtain work through employees she had worked with at APL by giving them her resume and through searching the internet and newspaper classifieds. Defendant was unemployed at the time of trial although she testified that she continued to search for employment. Defendant claimed she had to re-mortgage her house, borrow money from her sister and two cousins, and borrow against her 401K pension plan to meet her prior standard of living expenses of $8,955 per month. Those expenses included support for one of the parties' emancipated daughters.

Defendant, however, was vague in recounting the details of her employment search and work history. She could not recall which year she completed computer skills training classes but admitted she remained uncertified because she never took the final test. Defendant admitted she did not begin her job search until eight months after losing her job with APL because she thought she might be rehired.

Defendant also testified that she never applied for secretarial positions, even though her resume indicated she had started as a secretary at APL and that secretaries can earn between $40,000 to $50,000. Defendant's documentation of her job search was limited to two job listings, two cover letters and a fax cover sheet in response to those job listings. Defendant also supplied a resume that she claimed to be using at the time of the hearing that listed herself as still employed as a receptionist at the dentist's office ("2000 - Present"), despite the fact that her employment there ended in April 2003 when her retina surgeries began. Defendant claimed to be actively seeking employment with an employment agency although she had not provided the agency an updated resume since 2000. Defendant also testified she had submitted only two job resumes to prospective employers in the six months prior to the hearing. On defendant's application for unemployment benefits, the application indicated "Claimant's Covered New Jersey Earnings in Base Year" were $33,280, with the base being 52 weeks. In her September 2003 Case Information Statement (CIS), she indicated 2002 earnings of only $20,481 plus $8,700 in disability benefits through August 2003. At the plenary hearing, defendant testified she had not filed state or federal income tax returns for the years 2000, 2001 and 2002. Additionally, defendant failed to explain how she could refinance a mortgage on the former marital home without being able to show significant income to amortize the mortgage.

On February 23, 2004, the court denied defendant's application for alimony. The court determined that defendant had the burden of proof, based on the court's reading of pargraph 11 of the final judgment of divorce and Lepis v. Lepis, 83 N.J. 139 (1980). The court concluded: "[defendant] has to show the court that she has acted reasonably, responsible, as well as diligently, exercising due diligence to secure reasonable, comparable employment that would be reasonably appropriate to her education, experience and attainments."

The court denied defendant the right to alimony because a prima facie case of changed circumstances required by paragraph 11 and Lepis had not been shown. The court made credibility determinations adverse to defendant. In evaluating defendant's efforts to obtain comparable employment, the court noted her testimony and determined that the only job she had obtained was a "stop-gap" job in the dental office. The court noted the false information in defendant's current resume that indicated she was presently employed as a receptionist at the dentist's office. The court stated: "[i]t's not unreasonable for this court to infer that if she were to give this resume to a third-party employer, they might call and seek a reference or at least a telephone confirmation of her employment. She wasn't employed. [T]he resume is simply false." The court further noted that defendant testified she chose to exclude secretarial work that she believed would pay in the $40,000 range.

In questioning defendant's assertions of her income since the divorce, the court found that her failure to file tax returns for three years damaged her credibility and "rectitude." Additionally, the court expressed concern that defendant's CIS contained not only defendant's own expenses but also the expenses related to supporting the parties' emancipated daughter. Lastly, the court found defendant's submission of only sixty resumes over a period of nearly four years "wholly inadequate."

In finding defendant not credible and her efforts to find a job not acceptable, the trial court denied defendant's application for alimony. The court, in determining defendant had failed in her burden of proof, rhetorically asked: "Has she acted in a way reasonable and responsible, as well as reasonably diligent, to secure comparable employment? . . . , I am forced, compelled, as I say, to conclude that she has not."

Defendant contends that the trial court misunderstood and misapplied paragraph 11 of the divorce judgment. Therefore, the trial court's decision resulted in a manifest denial of justice and was against the weight of the credible evidence. Defendant contends that the language of paragraph 11 clearly recognized that there had already been a substantial change in defendant's financial circumstances at the time of the divorce and that unless her financial circumstances changed for the better, such that she could earn substantially what she had earned at APL, she would be entitled to alimony based on the factors set forth in N.J.S.A. 2A:34-23b. Defendant argues that she did not have to prove a "change in circumstances" at the time she filed her motion for alimony. All she had to do is prove her inability to obtain a reasonably comparable job to her APL job by March 2001. Defendant asserts that once she had made a prima facie showing of an inability to obtain comparable employment when her severance pay lapsed that her right to alimony vested, and the burden shifted to plaintiff to prove comparable employment was available to defendant, which he has not done.

It is well-settled law that the party seeking a modification of alimony based upon a change in circumstances bears the burden of showing such changed circumstance and that the changed circumstances have substantially impaired the moving party's ability to support himself or herself. Crews v. Crews, 164 N.J. 11, 28 (2000) (citing Lepis, supra, 83 N.J. at 157; see also Storey v. Storey, 373 N.J. Super. 464, 473 (App. Div. 2004). This requires disclosure of the moving party's financial status, including income tax returns. Lepis, supra, 83 N.J. at 157. Income tax returns were not produced by defendant here, a fact noted by the trial court. After the movant has made this prima facie showing, the court can then examine the statutory factors for determining whether an award of alimony is appropriate. Lepis, supra, 83 N.J. at 157. These factors are "the dependant spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependant spouse at the former standard." Id. at 152. The parties' ability to contribute to his or her own support remains relevant in this determination.

Defendant, however, contends that Lepis does not apply to her and that she is entitled to alimony pursuant to paragraph 11 of the final judgment. That provision permits defendant to "ask that the Court consider a request for alimony if she is unable to replace her job with a reasonably comparable one." (emphasis added). Defendant contends this language entitles her to alimony upon the "triggering" event, i.e., the expiration of her severance pay before she obtained comparable employment. Defendant's interpretation of paragraph 11 would impose a permanent support obligation on plaintiff if defendant merely alleged that she could not obtain work as of the date her severance pay ceased. We are satisfied that a plain reading of the language of paragraph 11 does not create a vested right to alimony as contended by defendant. See Dworkin v. Dworkin, 217 N.J. Super. 518, 522-25 (App. Div. 1987).

We are convinced that the judge correctly interpreted paragraph 11 and Lepis as imposing on defendant the burden of proving the change of circumstances contemplated by paragraph 11, namely defendant's inability to obtain reasonably comparable employment. Only after defendant had made this prima facie showing was the court required to examine the statutory factors for determining an appropriate amount of alimony. Paragraph 11 imbues defendant with no additional right than that enjoyed by any applicant under Lepis, which is the right to make an application for a modification of alimony based upon a demonstration of changed circumstances that has substantially impaired the ability to support himself or herself. Lepis, supra, 83 N.J. at 157.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

During the plenary hearing, the court was able to hear testimony from the parties, observe their demeanor and thereby assess their credibility. Making reasonable inferences from the testimony and the evidence, the judge found defendant and the evidence she presented was not credible and his findings were supported by the record. Essentially, the court found that there was a failure of proof on the part of defendant imposed upon her by paragraph 11 and Lepis.

Defendant contends the court erred in basing its decision solely on plaintiff's false resume and her failure to file tax returns during the period for which she claims that her loss of income necessitated an award of alimony. The contention is incorrect. The trial court did not base its findings solely on these two factors, but rather in addition to numerous other instances where defendant, in her testimony and proofs, damaged her own credibility. Those instances included: (1) defendant's changing the estimate of the number of positions applied for; (2) defendant not taking the final test for her office skills course certification; (3) defendant failing to seek secretarial positions for which she was qualified; (4) defendant over-stating her income in her application for unemployment benefits; (5) defendant exaggerating her stated expenses on her CIS; (6) defendant failing to respond to plaintiff's request to produce documentation concerning her eye surgery and how the surgery may have affected her ability to earn income; and (7) defendant providing varying dates for her employment with the dentist in her resume and throughout her sworn testimony.

The court's determination that defendant failed to meet the burden of proving that she made a reasonable, good faith effort to find an appropriate position after losing her position with APL was based on substantial credible evidence in the record. Defendant's documentary evidence amounted to two job listings, two cover letters and a facsimile cover sheet. Defendant orally testified that she sent out fifty to sixty resumes over the course of four years (or approximately 1.25 per month), a number the court determined to be "wholly inadequate."

 
The determinations made by the trial judge were "reasonably . . . reached . . . on the evidence" presented in the case and were not "clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." Wadlow v. Wadlow, 200 N.J. Super. 372, 382 (App. Div. 1985), (quoting Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978)).

Affirmed.

The original order entered February 23, 2004 was apparently neither filed nor sent to counsel. Therefore, the court entered a second order dated May 28, 2004 reflecting its decision of February 23, 2004.

(continued)

(continued)

13

A-5950-03T2

November 15, 2005