LINDA M. GEFFNER v. RAMI E. GEFFNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5787-04T15787-04T1

LINDA M. GEFFNER,

Plaintiff-Appellant,

v.

RAMI E. GEFFNER,

Defendant-Respondent.

________________________________________________________________

 

Argued September 26, 2006 - Decided October 24, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-948-00.

Frank A. Louis argued the cause for appellant.

James P. Yudes argued the cause for respondent (James P. Yudes, attorneys; Kevin M. Mazza, on the brief).

PER CURIAM

Plaintiff, Linda M. Geffner, appeals paragraph (1)(A) of the Family Part's May 16, 2005 order. The order denied plaintiff's motion to compel defendant, Rami E. Geffner, to pay additional pendente lite support. We affirm.

Plaintiff and defendant were married on June 20, 1984 and separated on November 28, 1999. An action for divorce was commenced by plaintiff in January, 2000. The parties were divorced on September 26, 2002. Following a July 27, 2000, plenary hearing, Judge Franklin, by order dated August 1, 2000, granted plaintiff's motion for pendente lite support. Paragraph 14 of the order states that effective June 23, 2000, defendant husband, shall pay as unallocated non-taxable support directly to plaintiff wife the sum of $19,987.05 per month.

Paragraph 14 further provides:

The support Ordered herein has been calculated by the court from a baseline cash flow from defendant's medical practice of $651,122.00 net of tax annually and after as Ordered herein in par. 12, the fixed expenses for both homes (mortgages, taxes, homeowner's insurance) and life insurance (see par. 17) in the approximate annual amount of $48,000.00. The $2,000.00 monthly mortgage credit line expense for the Rolls Royce has been deducted from the $651,122.00.

Judge Franklin, in his July 27, 2000 oral decision, based his $651,122 estimate of net income produced by defendant's practice on an analysis of annual income in recent years that was provided by plaintiff's expert. He found that $651,122 was sufficient to permit both parties to continue to live in accordance with the lifestyle they enjoyed during the last years of the marriage, deducted the cost of specified, fixed expenses from that amount and divided the remainder equally between plaintiff and defendant. In that manner, Judge Franklin set pendente lite support in the fixed amount of $19,987.05.

In April, 2005, plaintiff filed an application in which she alleged that she was underpaid under the pendente lite support order and, therefore, entitled to a recalculation of the order in its entirety. Plaintiff claimed that the pendente lite support order was designed for plaintiff to receive 50% of the annual income from defendant's medical practice on a yearly basis. Plaintiff contended that because the medical practice increased in value over the years during which the pendente lite order was in effect, she was entitled to enforce the pendente lite order and obtain 50% of the increase in defendant's annual income from his medical practice.

On May 16, 2005, Judge Franklin heard oral argument and determined that plaintiff's application was without basis and denied her motion. The judge found that plaintiff was not entitled to a recalculation of pendente lite support. When asked about the "50/50 division", which he referenced in his July 27, 2000 oral decision, the judge stated, "that's just an explanation as to how I arrived at the pendente lite support." Further, the judge stated, "I didn't order 50 percent. I ordered a specific liquidated amount." The judge stated that plaintiff could have brought a motion for a modification of support, but she could not bring a motion for enforcement. "My intent was to put a specific pendente lite order in place. I believe that if either party intended to have the right to modify that pendente lite order subsequent to the entry of the [PSA] between the parties, that they should have specifically identified and preserved the right to modify the PL order." Judge Franklin's oral decision was memorialized in the May 16, 2005 order, which plaintiff appeals.

Plaintiff alleges that the judge committed reversible error by confusing the concept of enforcement of the pendente lite order with modification of the order. Plaintiff contends that because her application is for enforcement of the August 1, 2000 order, she does not need to show changed circumstances. She asserts that she is simply seeking to enforce the arrears owed to her by defendant under the order. Plaintiff claims that as the value of defendant's medical practice profit increased, she was entitled to 50% of the increase in profit on an annual basis. Plaintiff claims that she is entitled to this increase because the trial court judge expressed a formula for division of the medical practice income each year, when he said "the balance is then going to be split 50-50."

Pendente lite support is an "award of periodic support that the dependent spouse may obtain during the pendency of litigation for divorce." 1 New Jersey Family Law 11-4 (2004); see Monica v. Monica, 25 N.J. Super. 274, 277 (App. Div. 1953); Rose v. Csapo, 359 N.J. Super. 53 (Ch. Div. 2002). Pendente lite support orders generally "do not survive the entry of a judgment of divorce unless expressly preserved in it or reduced to judgment prior to entry of final judgment." Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).

Plaintiff's application required Judge Franklin to interpret the language he used in his July 27, 2000 decision when he established the pendente lite support order of August 1, 2000. We are satisfied that any ambiguity in the judge's July 27, 2000 oral decision, in which he explained his method of arriving at the amount of pendente lite support memorialized in paragraph 14 of the August 1, 2000 order, was decisively answered by the judge's explanation of his intention at the May 16, 2005 hearing on plaintiff's enforcement application. The judge stated, "I didn't order 50 percent. I ordered a specific amount. That's just an explanation as to how I arrived at the pendente lite support." We see nothing in the initial decision that suggests an intent to modify the pendente lite order in accordance with fluctuations in income.

We are convinced that Judge Franklin's interpretation of his own intent in establishing the pendente lite order represented the judge's proper exercise of an inherent power of the court. See State v. Abbati, 99 N.J. 418, 427-28 (1985); Dziubek v. Schumann, 275 N.J. Super. 428, 439 (App. Div. 1994). Plaintiff on this appeal seeks our review of Judge Franklin's factual determination of his intent at the time he established the amount of pendente lite support. When reviewing a question of fact, this Court's standard of review is limited. Cesare v. Cesare, 154 N.J. 394. 411-12 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate substantial, credible evidence." Ibid. (Citing Rova Farms Resorts, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We are satisfied from our review of the record that the judge's findings and legal conclusions are supported by the record and do not offend the interests of justice. Id. at 412. Accordingly, the Family Part's May 16, 2005 order denying plaintiff's enforcement application is affirmed.

 
Affirmed.

(continued)

(continued)

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A-5787-04T1

October 24, 2006