LAURIE LARSEN, f/k/a LAURIE JABLONSKI v. JOSEPH JABLONSKI

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0672-07T20672-07T2

LAURIE LARSEN, f/k/a LAURIE

JABLONSKI,

Plaintiff-Respondent,

v.

JOSEPH JABLONSKI,

Defendant-Appellant.

____________________________________________


Submitted September 2, 2008 - Decided

Before Judges Messano and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, FM-11-727-03.

Seelig & Rednor, L.L.P., attorneys for appellant (Jack L. Seelig, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Joseph Jablonski appeals from the denial of his motion for reconsideration seeking to modify his alimony payments to plaintiff Laurie Larsen, his former wife.

The corrected final judgment of divorce entered on August 25, 2004, required Jablonski to pay Larsen $192 per week in permanent alimony. The judgment provided that this obligation would cease "upon either party's death, plaintiff's [Larsen's] remarriage or her co-habitation as defined and enforced at the time of application." In July 2005, Jablonski moved to terminate the alimony payments, contending that Larsen was cohabiting with her boyfriend, Marvin Ames.

At the hearing, testimony was taken from Jablonski, Larsen and Ames. Larsen's son was interviewed by the court in camera. The record indicates that Larsen had been dating Ames for over three years and that in 2004, she had moved into the house he owned and in which he had lived for the preceding twenty or so years. According to Larsen and Ames, he moved in with his mother who lived next door, and rented his house to Larsen for $1,500 a month, although he never received any rental payments from her. Ames' furnishings remained in the house after Larsen moved in. Ames also paid the water and sewer charges for the house, and had on one occasion made payments to secure Larsen's automobile from repossession. He also paid for a cruise vacation for her. Ames ate dinners regularly with Larsen and her son at the house, and spent the night with her a couple of times a week.

Applying the criteria in Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), the trial court did not find that Larsen was cohabiting with Ames, stating:

While there is clearly evidence in this case that plaintiff and Mr. Ames have a close non-platonic relationship, nonetheless the evidence does not establish cohabitation as the law defines it . . . . There is no common residence, there are no joint intertwined finances, joint bank accounts, shared living expenses and chores and no evidence of recognition of the relationship as such in the couple's social and family circle.

However, the trial judge did find that plaintiff derived "a significant economic benefit from the relationship," noting that Larsen did not pay rent, sewer, or water charges on the property, and that Ames had paid for other expenses such as a cruise and the cost to redeem Larsen's car from repossession. Invoking Rule 4:9-2, the trial court proceeded to treat Jablonski's application as a motion to modify his alimony obligation based on changed circumstances.

In order to calculate an appropriate adjustment in the alimony payments, the trial judge required Larsen to submit further financial documentation. Upon receipt of these documents, the trial judge entered an order dated June 21, 2007, denying Jablonski's motion to modify the alimony payments. Appended to the order is the trial judge's detailed analysis of Larsen's financial circumstances explaining why she found no basis to modify the alimony payments made by Jablonski.

The trial judge then learned that the documents Larsen submitted to the court had not been submitted to defense counsel and as a result, the defense had no opportunity to analyze and comment on the financial documents submitted by Larsen. In light of this circumstance, the trial court entered an order dated June 29, 2007, requiring that the information provided to the court be given to the defense, and allowing Jablonski to make a motion for reconsideration upon review of that information. This was done.

However, by the time the motion for reconsideration was made, the trial judge had been assigned to the Appellate Division and thus was not available to hear it. The motion was heard by a different judge who denied the motion, finding that the standard for reconsideration had not been met.

On appeal Jablonski raises the following issues:

POINT I

The Defendant proved that the Plaintiff is cohabiting with Marvin Ames.

POINT II

The Court erred in not reducing the alimony payment having previously found changed circumstance.

POINT III

The Trial Court did not use the proper standard to review the amount of alimony.

Our role in reviewing a decision of the family court is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The findings of the trial court are binding on appeal if they are supported by "adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Further, when considering testimonial evidence involving issues of credibility, we give deference to the findings of the trial court which has had the opportunity to hear the testimony and observe the witnesses and "has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Indeed, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., supra, 65 N.J. at 484). We also accord additional deference to the findings of family court judges due to their special expertise in this area. Id. at 412-13.

In light of these standards, we must give deference to the trial court's findings on the issue of cohabitation, particularly since it turned in large part on the believability of the testimony provided at the hearing. Our careful review of the record reveals adequate, substantial, credible evidence to sustain the finding that Larsen did not cohabit with Ames, although her financial arrangements with him constituted a changed circumstance.

Finally, we reach Jablonski's argument that the motion judge imposed the wrong standard of review on this motion for reconsideration. In both her oral decision and written decision, the motion judge articulated the general standard of review for a motion for reconsideration. That standard provides that a motion for reconsideration should not be made merely because a party is dissatisfied with the court's decision. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Rather a party is entitled to reconsideration where the court's decision has a "palpably incorrect or irrational" basis or "it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. "[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process." Ibid.

Jablonski correctly maintains that the motion judge's application of this standard was incorrect under the circumstances here. Through no fault of Jablonski, the trial judge had rendered her opinion before Jablonski had an opportunity to review and comment on the financial documentation that had been submitted to the trial judge by Larsen. When this was called to her attention, rather than set her decision aside, the trial judge allowed Jablonski to review the materials and then make a motion for reconsideration if he sought to bring any additional arguments to her attention.

The motion judge viewed this procedural posture as placing upon Jablonski the heavy burden of meeting the standard for a motion for reconsideration. We note that "[r]econsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice." Ibid. Here, papers were submitted to the trial court ex parte contrary to Rule 1:5-1(a). The trial court rendered its decision unaware that Larsen's submission was ex parte. As a result, Jablonksi was deprived of an opportunity to comment on those submissions before the matter was decided by the trial court. Under these circumstances, the motion judge should have reconsidered the trial court's decision.

We remand in order that the motion judge may reconsider the trial judge's alimony determination. The motion judge should review the trial judge's decision in light of the arguments and information presented in Jablonski's motion for reconsideration and determine to what extent, if any, a downward modification in the alimony payments is warranted.

A careful review is in order, since the trial court's denial of any reduction in alimony was unexpected in light of the substantial financial support Larsen is receiving from Ames. We see that the trial judge allowed Larsen a monthly cell phone expense of $373, a sum that on its face, without further explanation, appears excessive. The trial judge also allowed a monthly car payment expense of $440 a month, despite the fact she questioned whether Larsen was continuing to make these payments.

Accordingly, we reverse the denial of the motion for reconsideration, and remand in order that the court may reconsider Jablonski's application to reduce Larsen's alimony in light of the economic benefit Larsen is deriving from her relationship with Ames.

Reversed and remanded.


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A-0672-07T2

September 15, 2008