ROBERT H. BENNEKAMPER v. ROSE ANN BENNEKAMPER



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2806-06T22806-06T2

ROBERT H. BENNEKAMPER,

Plaintiff-Appellant,

v.

ROSE ANN BENNEKAMPER,

Defendant-Respondent.

____________________________


Argued January 23, 2008 - Decided

Before Judges Winkelstein, Yannotti and LeWinn.

On appeal from the Superior Court, Chancery Division, Family Part, Middlesex County, FM-12-11195-88J.

Cornelius W. Daniel, III, argued the cause for appellant.

James P. Brady argued the cause for respondent.

PER CURIAM

Plaintiff Robert H. Bennekamper appeals from an order entered by the Family Part on December 15, 2006, which denied his motion to terminate or modify alimony, granted defendant Rose Ann Bennekamper's motion to increase alimony, and awarded defendant counsel fees. Plaintiff also appeals from an order entered on January 20, 2006, which denied his motion for a change of venue from Middlesex to Ocean County. For the reasons that follow, we affirm the denial of plaintiff's motion to terminate or modify alimony and the increase in plaintiff's alimony obligation but set aside the award of counsel fees. We also affirm the denial of plaintiff's motion to change venue.

The parties were divorced in 1998 after a twenty-six-year marriage. Pursuant to the property settlement agreement (PSA) incorporated into their divorce judgment, plaintiff was obligated to pay defendant permanent alimony of $225 per week.

On April 29, 2005, plaintiff filed a motion to terminate or, alternatively, to reduce his alimony obligation. Defendant filed a cross-motion seeking an increase in alimony. On August 9, 2005, the trial court entered an order denying plaintiff's motion and increasing defendant's alimony to $370 per week. Plaintiff filed a motion for reconsideration of that order and requested a plenary hearing. Defendant cross-moved for enforcement of the order and requested counsel fees for both motions. On September 23, 2005, the court granted plaintiff's request for a plenary hearing and awarded defendant counsel fees totaling $5,790.

On October 26, 2005, the trial court ordered that discovery be completed within forty-five days. On December 8, 2005, plaintiff filed a motion to change venue, which the court denied by order of January 20, 2006.

The trial court held a plenary hearing on August 18, 2006, and filed a written decision on December 15, 2006. In that decision, the judge reaffirmed his earlier order denying plaintiff's motion to modify alimony and increasing defendant's alimony to $370 per week. The court also ordered plaintiff to pay defendant's counsel fees in the amount of $31,320 within ninety days. On May 2, 2007, the trial court entered an order requiring plaintiff to post the amount of $47,675 in the Superior Court Trust Fund. This amount represented $33,030 still due in counsel fees previously awarded; $12,035 in back alimony plaintiff owed to defendant; and $2,610 representing alimony arrears that had accumulated since the December 15, 2007 order.

On appeal, plaintiff contends that the court erred in (1) failing to find that plaintiff had established changed circumstances warranting termination, or at least modification, of his alimony obligation; (2) calculating plaintiff's current income; (3) awarding defendant $31,320 in counsel fees; and (4) denying a change of venue.

Having reviewed the entire record, with the exception of the counsel fee award, we affirm both the December 15, 2006 and January 20, 2007 orders. We briefly review the background of this matter.

I.

The parties have been divorced for ten years. At the time of the August 18, 2006 plenary hearing, plaintiff was 64 years of age and defendant was 63 years of age. In addition to the permanent alimony award to defendant, the parties' PSA provided that they would equally share equitable distribution of the following assets: (1) the net proceeds of sale of the marital residence; (2) the parties' individual retirement accounts (IRAs) and bank accounts; (3) and plaintiff's American Steel pension which was valued at $113,478. Upon sale of the marital residence, defendant received $56,448.60 representing her share, as well as $56,739 as her fifty percent share of plaintiff's pension.

During the marriage, plaintiff worked as a mechanic and driver, earning between $50,000 and $60,000 per year. Defendant was employed as a receptionist/secretary. After the marriage, plaintiff continued working for his same employer until he was laid off in January 2004. Plaintiff thereafter received unemployment benefits through 2005, at which time he decided to retire.

Plaintiff presented evidence that he currently suffers from carpal tunnel syndrome and has a 42% hearing loss in each ear. Plaintiff presented a report by Dr. Martin Riss in support of his carpal tunnel syndrome diagnosis; he also produced a report from Dr. Gerald West regarding his hearing loss claim.

As of the time of the plenary hearing, plaintiff claimed that his income sources consisted of: (1) Social Security benefits of $2,977 per month; (2) a Merrill Lynch IRA valued at $513,291.59, generating annual income of $24,008.35; and (3) a joint Merrill Lynch account with his current wife, valued at $292,827, generating annual income of $8,935. Plaintiff also owns an investment property valued at $310,000 and encumbered by a $279,000 mortgage.

Defendant continued working after the divorce for the same employer as during the marriage. Between 1998 and 2003, defendant was laid off and then recalled by the company on three occasions. She was laid off permanently in September 2003. As of the time of the hearing, defendant was employed as a part-time delicatessen clerk at Shop-Rite, earning approximately $217 per week. In addition, defendant was receiving Social Security benefits of $709 per month. She claimed that she had approximately $24,000 in savings.

In a certification filed with the trial court in May 2005, defendant stated that since the divorce, she has "been afflicted with a variety of medical problems." These included surgery on her right hand for basal joint arthrosis in 2001; an emphysema diagnosis in 2003; and a diagnosis of Bakers Cysts behind both knees, in 2004. At the plenary hearing, however, defendant did not testify as to her medical condition; nor did she present expert or documentary support of those claims.

In his decision, the trial judge concluded that plaintiff had failed to make a showing of changed circumstances based on his medical condition, noting: "Here, no expert physician has testified that any partial disability . . . renders the plaintiff incapable of performing his job."

The trial judge's decision to increase defendant's alimony was based upon his assessment of the increase in the cost of living. The court determined that defendant's original alimony award of $225 per week would today, with inflation, equal $370 based upon U.S. Department of Labor Bureau statistics.

The court addressed the statutory factors in N.J.S.A. 2A:34-23(b) in his alimony decision. However, the court stated that its decision to "update" plaintiff's alimony obligation was for the purpose of reflect[ing] the value of the obligation in 2005 from when it was awarded in 1988[.]"

In awarding counsel fees, the judge stated:

. . . . The Defendant's request for counsel fees is hereby granted based on the Defendant's need, the Plaintiff's ability to pay, and a finding of good faith on the part of the Defendant . . . . The Plaintiff shall pay the Defendant $31,320.00 in counsel fees within ninety (90) days of this Order.

II.

Our scope of review of a trial court's factual findings is limited, particularly when questions of credibility are involved. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

[A]n 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." The appellate court should "exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter."

[Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).]

Applying that standard to the trial judge's determination of plaintiff's financial ability to pay the alimony increase ordered below, we discern no basis on which to disturb the judge's findings.

"Whether circumstances have really changed so as to warrant modification requires a court to study the parties' financial condition at the time of the divorce as well as at the time of the application. Where the change is involuntary, all that is required is an analysis of the alterations in the parties' financial circumstances." Deegan v. Deegan, 254 N.J. Super. 350, 355 (1992). Where the change in circumstances is voluntary, the court must consider the reasonableness of the moving party's actions in voluntarily retiring and reducing income. Ibid.

Here, the trial judge did not make a specific finding as to whether plaintiff's retirement following his lay-off was voluntary or involuntary. Nevertheless, the analysis under either standard is essentially the same. The focus remains on the obligor's ongoing financial ability to meet his alimony obligation. Storey v. Storey, 373 N.J. Super. 464, 469 (App. Div. 2004).

As noted, the record reflects that at the time of the parties' divorce, plaintiff earned between $50,000 and $60,000 annually and had limited assets other than his pension. The trial court found that plaintiff's current income is approximately $64,667 per year, or $5389 per month. The court found that plaintiff's Social Security and pension benefits were $2977 per month, the same figure that plaintiff provided. The court further found that plaintiff derived income of $1667.34 per month from his IRA, after reducing the income from that asset by $4000 per year to account for the portion of the IRA previously awarded to defendant by way of equitable distribution. The court further found that plaintiff derived $8935 per year from the Merrill Lynch account jointly owned with his current wife.

The discrepancy between the trial judge's and plaintiff's figures arises from the difference in deductions in the IRA income related to the prior equitable distribution of that asset, as well as the difference in the amount of income from investment assets considered by the court.

Plaintiff claimed that he rolled his American Steel pension into his IRA. Therefore, he argued, a portion of that IRA should not be considered for purposes of determining alimony. However, plaintiff provided no documentation to support this claim. In fact, the court precluded plaintiff from testifying on this subject because of his failure to comply with discovery requests related to this asset. Notwithstanding this limitation, the trial judge deducted from the IRA the equitable distribution amount of the pension before determining the income currently available to plaintiff for purposes of alimony.

As to the Merrill Lynch account jointly owned by plaintiff and his current wife, plaintiff contends that only one-half of the income from that account should be considered as income to him. However, we conclude that the trial judge properly considered the entire annual income of $8935 in his alimony calculations. Income and assets of an obligor's current spouse may be considered in determining alimony. See Rolnick v. Rolnick, 262 N.J. Super. 343, 357-59 (App. Div. 1993).

The record further supports the judge's findings that plaintiff's assets are currently valued in excess of $1,700,000, a figure that includes the value of his current home in the amount of $649,000, a Brick Township investment property valued at $310,000, the value of his IRA (exempting the amount subject to equitable distribution), joint accounts, and personal possessions.

The court engaged in a thorough analysis of plaintiff's financial situation in concluding that his retirement, whether voluntary or involuntary, did not warrant the relief he sought. For the reasons stated, we find this decision to be fully supported by the evidence of record.

Regarding plaintiff's medical claims, the trial court found that his physical condition did not constitute changed circumstances because plaintiff failed to offer sufficient evidence that those conditions rendered him unable to perform the duties required by his former employment. Plaintiff had the burden of proof to demonstrate such a disability to warrant modification of his alimony. Golian v. Golian, 344 N.J. Super. 337, 338 (App. Div. 2001). While plaintiff testified as to his carpal tunnel syndrome and his partial hearing loss, he offered no evidence of the impact of these conditions on his ability to work. Moreover, plaintiff testified that he had pursued an alternative means of producing income, by purchasing and renovating an investment property.

The principal consideration on a motion for termination or reduction of an alimony obligation is the supporting spouse's ability to pay. Miller v. Miller, 160 N.J. 408, 420 (1999). As discussed, plaintiff has failed to show that his ability to meet his support obligation has been reduced. Plaintiff now earns more income then he did at the time of the divorce, and has substantially increased the value of his assets. Therefore, the record supports the trial judge's conclusion that plaintiff failed to make a showing of changed circumstances sufficient to warrant any modification of his alimony obligation.

We further conclude that the trial court's determination to increase plaintiff's alimony obligation to $370 per week based on a cost of living increase is supported by the record. Our courts have long recognized that an increase in the cost of living constitutes a "changed circumstance" warranting modification of support. Lepis v. Lepis, 83 N.J. 139, 151 (1980).

In awarding this increase, the trial judge also analyzed the statutory factors in N.J.S.A. 2A:34-23(b) in the context of the evidence of record. On the basis of that analysis, the judge found that defendant had a need for an increase in alimony from the amount set eight years earlier, to account for the increased cost of living in order to maintain the marital standard of living. We conclude that the trial court's findings and conclusions with respect to the alimony issue are "supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 412. Our "[d]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

III.

We turn to plaintiff's argument that the counsel fee award to defendant was excessive and should be reduced or vacated. The trial court granted defendant's request for counsel fees "based on the [d]efendant's need, the [p]laintiff's ability to pay, and a finding of good faith on the part of [d]efendant[.]" The court awarded defendant the entire amount of her counsel fees, $31,320.

The court did not engage in any analysis of the nature and extent of the services rendered or the reasonableness of the fees charged. In assessing a counsel fee award in a matrimonial action, the court must consider the factors set forth in Rule 5:3-5(c), in addition to the information required under Rule 4:42-9. The latter rule requires "an affidavit of services addressing the factors enumerated by R[ules of] P[rofessional] C[onduct] 1.5(a)[,]" as well as "a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought." R. 4:42-9(b).

A court must review such an affidavit of services in conjunction with the following factors set forth in Rule 5:3-5(c):

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

Because the trial judge failed to engage in the requisite analysis in considering counsel fees, we vacate that portion of the December 15, 2006 order awarding counsel fees and remand for the court to re-evaluate this counsel fee award.

IV.

Finally, we reject as without merit plaintiff's argument that the trial court abused its discretion in denying his motion for a change of venue. Plaintiff's motion to change venue was not timely filed below. Rule 4:3-3(b) requires that a "motion for a change in venue shall be made not later than 10 days after the expiration of the time prescribed by R[ule] 4:6-1 for the service of the last permissible pleading[.]" The service of pleadings in Family Part matters is governed by Rule 5:5-4(c) which provides: "Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than 8 days before the return date."

Plaintiff filed his original motion to modify alimony on April 29, 2005. Plaintiff did not file his motion to change venue until December 8, 2005, more than six months after the return date of his original motion.

Under the circumstances, we conclude the trial court did not abuse its discretion in denying plaintiff's motion for a change of venue.

Based on the foregoing, we affirm the portions of the trial court's order of December 15, 2006, denying plaintiff's motion to terminate or modify alimony and granting defendant an increase in alimony to $370 per week. We vacate and remand that portion of the December 15, 2006 order awarding defendant counsel fees of $31,320. We affirm the trial court's order of January 20, 2006 denying plaintiff's request for a change of venue to Ocean County.


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A-2806-06T2

August 21, 2008