GIFFORD WEBER v. CAROL ANN WEBER

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1369-08T21369-08T2

GIFFORD WEBER,

Plaintiff-Appellant,

v.

CAROL ANN WEBER,

Defendant-Respondent.

_______________________________

 

Argued May 4, 2009 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-15648-86.

Alan S. Pralgever argued the cause for appellant (Greenbaum, Rowe, Smith & Davis, L.L.P., attorneys; Mr. Pralgever and Gary L. Koenigsberg, on the brief).

Toni Belford Damiano argued the cause for respondent (Damiano Law Offices, attorneys; Ms. Belford Damiano of counsel; Joseph V. Maceri, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Gifford Weber (Gifford) appeals from the September 29, 2008 order denying his motion for discovery, to terminate alimony, and to terminate his obligation to pay for the health insurance of defendant Carol Ann Weber (Carol Ann). We affirm in part, reverse in part, and remand for further proceedings.

Gifford and Carol Ann were married on April 14, 1956. Five children were born of the marriage, all of whom are emancipated. A dual final judgment of divorce incorporating a property settlement agreement (PSA) was entered on March 26, 1986. The PSA required Gifford to pay permanent alimony of $400 per week until Carol Ann's remarriage or death. The PSA also required Gifford to provide medical insurance for his ex-wife. By order, entered on January 24, 2003, Gifford's weekly alimony obligation increased to $453.

In 1998, Gifford filed a motion to terminate his alimony and medical insurance obligations because he wanted to retire. The court denied the motion, finding it premature. In 2003, Gifford filed a motion to terminate his medical insurance obligation because Carol Ann became Medicaid eligible. The court denied that motion as well.

In 2008, Gifford filed a motion to terminate his alimony and medical insurance obligations. He contended that he was then seventy-three years old and "would like to retire" but could not do so because of those obligations. Gifford also contended that Carol Ann's father died in 1990, leaving her mother an estate worth at least $1.5 million, and that the father's Will "suggests that there were additional assets or property that was disposed of in a manner other than through [the father's] Will." (Emphasis in original). He further contended that in 2006, Carol Ann's mother died testate, leaving assets to his ex-wife. He, thus, concluded that Carol Ann's "financial circumstances have significantly improved to the extent that her income and assets may significantly exceed [his] own." However, he provided no Case Information Statement (CIS) or any documentation indicating his current financial status.

Gifford also sought discovery of federal and/or state estate, inheritance or death tax returns and Carol Ann's personal 2006 and 2007 tax and gift returns. He also sought an inventory and valuation of the mother's estate, and an inventory of any assets transferred from the mother to Carol Ann in the last ten years.

Carol Ann filed a cross-motion for, among other things, a cost of living adjustment. However, she, too, failed to file a CIS indicating her current financial status. Prior to filing that motion, Carol Ann, then pro se, submitted to Gifford's attorney the following documents: her mother's 2006 tax return; the estate's first and last bank statements; an estate proceeds check to her brother; the estate's bank account closing information; January 2006 and 2007 investment statements reflecting a zero balance; and her 2007 tax return. She also certified that in January 2006, her mother's investment account had a $60,146.46 balance, which along with her mother's Wachovia debit account, was used to pay nursing home and related expenses. As of October 2006, the investment account had a zero balance; as of January 2007, the debit account had a $1130.02 balance.

Carol Ann also certified that after settling her mother's estate, she received an inheritance of $70.57. She further certified that her alimony and Social Security benefits were her only sources of income. In response, Gifford pointed to Carol Ann's 2007 tax return, which revealed income other than alimony and social security benefits, such as $1011 in taxable interest, $7895 in ordinary dividends, and $12,000 in pensions and annuities. The tax return also revealed a $3000 capital loss, a $295 loss from rental real estate, royalties, partnerships, S corporations, and $19,738 in itemized deductions. Gifford emphasized that this tax return, along with Carol Ann's failure to submit her entire 2007 tax return (i.e. Schedules A, B, D and E), raises numerous questions about her assets and holdings.

The motion judge denied Gifford's motion, finding as follows:

[Gifford's] allegations have been fully refuted by [Carol Ann's] clear and unequivocal proofs that she has not inherited or been gifted any significant assets that could produce a meaningful income. [Carol Ann's] tax return shows all of her sources of income. [Gifford] bemoans his duty to pay alimony - however - he signed an Agreement that specifically stated the right to receive alimony will terminate on death or re-marriage only. [Gifford] does not ask to modify [the] amount based on retirement.

The judge also denied Carol Ann's cross-motion in its entirety.

Our review of a trial court's fact-finding function is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we continue our analysis.

"When considering an application to modify support, the moving party has the burden to make a prima facie showing of changed circumstances warranting relief prior to the court ordering discovery of the full financial circumstances of each party." Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998 (citing Lepis v. Lepis, 83 N.J. 139, 157-59 (1980)). See also Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). "If that showing is made, and after receipt of ordered discovery, the judge then determines whether the changed circumstances justify modification. A plenary hearing may be necessary to adjudicate the matter if there are genuine issues of material fact." Dorfman, supra, 315 N.J. Super. at 515 (citing Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968)).

When a movant seeks modification, "that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157. "Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citations omitted) (emphasis added).

Gifford and Carol Ann did not submit a CIS. This alone justified the denial of the respective motions. R. 5:5-2(a). However, the judge denied Gifford's motion on other grounds. He found the motion premature because Gifford has not yet retired. We agree with this particular determination. Gifford may file another motion to terminate his obligations if and when he actually retires, supported by a proper CIS.

Apart from the retirement issue, the judge rejected Gifford's motion to reduce support because Gifford failed to make a prima facie showing of changed circumstances based on Carol Ann's alleged receipt of an inheritance and assets outside of her parents' Wills. We disagree with this finding.

"A change in circumstances warranting modification of support may . . . result from an alteration in the fortunes of either party." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997) (citing Aronson v. Aronson, 245 N.J. Super. 354 (App. Div. 1991)). "Lepis does not stand for the proposition that a prima facie showing of changed circumstances by an applicant must relate solely to his or her own finances." Ibid. (Italics original.) "[U]nder Lepis, a payor spouse is as much entitled to reconsideration of alimony where there has been a significant change for the better in the circumstances of the dependent spouse as where there has been a significant change for the worse in the payor's own circumstances." Ibid. Accordingly, a dependent spouse's receipt of a substantial inheritance, standing alone, constitutes changed circumstances. Id. at 43. In such a situation, all the payor spouse need do is "outline the basis of [his or her] allegation in general terms[.]" Ibid. The dependent spouse "should respond solely on the issue of the inheritance to clarify its existence and form." Ibid.

If the judge finds that this evidence, together with such other evidence as the parties may present, establishes prima facie that a change in circumstances has occurred, then he may proceed under Lepis to order full discovery of [the dependent spouse's] finances, including an updated [CIS]. Thereafter, the judge may determine whether a plenary hearing is necessary.

[Id. at 43-44.]

Based on our careful review of the record, we are satisfied that Gifford has established prima facie that a change in Carol Ann's circumstances has occurred. He has outlined the basis of his allegation that his ex-wife has received assets outside of her parents' wills. That allegation is well-supported by evidence of Carol Ann's receipt of income from sources other than her alimony and Social Security benefits. Gifford has the right to inquire about the nature and extent of those sources. Accordingly, the matter is remanded for full discovery of both parties' financial status, including an updated CIS, federal and state tax returns with all relevant schedules attached thereto, and the documents and information Gifford requested in his motion papers. After completion of such discovery, the motion judge may determine whether a plenary hearing is necessary.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

Carol Ann filed a cross-appeal from that part of the September 29, 2008 order denying her request for counsel fees. Because she did not address this issue in her merits brief, it is deemed waived. Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2008).

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A-1369-08T2

June 8, 2009