SUZZANE R. HUTTON v. GARY HUTTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5180-07T35180-07T3

SUZZANE R. HUTTON,

Plaintiff-Respondent,

v.

GARY HUTTON,

Defendant-Appellant.

__________________________________

 

Argued December 17, 2008 - Decided

Before Judges Waugh and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1010-96-S.

Jef Henninger argued the cause for the appellant (Jack Venturi & Associates, attorneys; Mr. Henninger, on the brief).

Richard B. Stone argued the cause for the respondent (Stone Mandia, L.L.C., attorneys; Mr. Stone, on the brief).

PER CURIAM

Defendant Gary Hutton, the former husband of plaintiff Suzzane R. Hutton, appeals from an order denying the vacation of a settlement, eight years later, regarding permanent alimony of $400 per month after a marriage of approximately thirty-two years and denying the termination of the alimony payments based on plaintiff's alleged co-habitation and/or on defendant's changed circumstances. On appeal, defendant contends that he made a sufficient showing, entitling him to a plenary hearing on the issues he raised before the trial court, and that it was error not to hold a hearing with prior discovery. We disagree and affirm.

The trial judge addressed each of the issues raised by defendant with regard to defendant's contention that he never fully understood that he was required to pay permanent alimony. The trial judge noted that permanent alimony was expressly covered by Judge Piscal at the September 19, 2000, hearing. The trial judge had this to say:

In fact, plaintiff contends that the transcript of the 9/19/00 hearing shows that defendant's allegations are completely false. For example, on page 5 plaintiff's attorney mentioned that the alimony was "permanent," and since defendant interrupted the proceedings shortly thereafter (page 6), which plaintiff suggests is an indication that he was listening. On pages 23 and 24, defendant's former attorney questioned defendant whether he heard the settlement placed on the record, understood all the terms, agreed to all the terms, and whether he had enough time to reflect upon those terms. Defendant's attorney also inquired whether defendant thought the terms were fair and reasonable, and whether he was entering into it voluntarily. The court finds that defendant's answer was "yes" to all of the above questions from his former attorney. Finally, plaintiff points out that Judge Piscal stated that this agreement would be "final" on page 22, and proceeded to ask defendant several questions. Specifically, the court notes the following excerpt from page 26:

"THE COURT: Are there any questions you have about what's going on here or what's happening? You know what we're doing?

MR. HUTTON: Yes, I know what's going on.

THE COURT: This is the final settlement..."

Judge Piscal then once again asked each party whether they understood, and each replied in the affirmative. Lastly, Judge Piscal asked who would provide him an order, and plaintiff's attorney responded that he would.

Plaintiff also refutes defendant's allegations that he would have understood the agreement better had it been in writing since the oral agreement made on the record in front of Judge Piscal was reduced to writing. Moreover, plaintiff provides proof that the form of order was originally transmitted to defendant on 10/27/00 for review before it was submitted on 11/14/00 to Judge Piscal for a signature under the 5 day Rule. Plaintiff notes that defendant had ample time to review this document as it was not signed and entered by the court until 11/28/00. Besides specifically listing defendant's alimony as "permanent," this order stated that the parties entered into the agreement voluntarily and fully accepted all provisions therein.

For the foregoing reasons, the court is not persuaded by defendant's argument that he did not fully understand the provisions of the settlement agreement reached orally on 9/19/00 and memorialized in an order dated 11/28/00. In fact, the court finds that the evidence overwhelmingly suggests that defendant knew his alimony obligation would be permanent, and defendant was asked by both his attorney and Judge Piscal whether he fully understood the terms of the agreement.

In connection with defendant's request that alimony be terminated based on plaintiff's cohabitation, the trial court found insufficient evidence to establish a prima facie case to warrant a plenary hearing. Once again, we quote the trial court's comments on this issue:

Defendant alleges that plaintiff has been cohabitating with a man named Robert Ward. The Supreme Court of New Jersey has held that cohabitation may be a basis upon which to modify alimony if "the relationship has reduced the financial needs of the dependent former spouse." Gayet v. Gayet, 92 N.J. 149, 150 (1983). As proof of this alleged cohabitation, defendant provides a report from a private investigator who observed the activties and associations of plaintiff from 10/25/07 through 11/15/07. Plaintiff asserts that these allegations of cohabitation are completely false. Plaintiff states that she met Mr. Ward in August of 2006 when she hired him to do house repairs and acknowledges that they are currently dating, which involves an occasional overnight stay. However, plaintiff insists that Mr. Ward does not contribute any financial support, and believes it is unfair to bar plaintiff from dating because defendant may cry "cohabitation." Plaintiff points out that a review of the private investigator report shows that Mr. Ward was present at her residence for a total of seven hours and 10 minutes during this three week period of time, and that Mr. Ward has his own residence evidenced by his driver's license and other identification. For the forgoing reasons, the court finds that defendant has failed to show sufficient evidence of even a prima facie case of cohabitation that would warrant discovery and/or a plenary hearing.

Defendant's final contention relates to his change of circumstances due to his retirement and his temporary custody of his four grandchildren because his daughter suffered a mental breakdown. The trial court rejected defendant's claim of changed circumstances in the following terms.

Defendant also contends that circumstances have changed drastically since 2000. The movant bears the burden of showing substantial and permanent changed circumstances before the movant is entitled to a modification of a support award. See Lepis v. Lepis, 83 N.J. 139 (1980); Bonanno v. Bonanno, 4 N.J. 268 (1950). Specifically, in 2006, the parties' daughter, Stacey, suffered a mental breakdown and had to be institutionalized. As a result, defendant claims that he has had to take custody of his four grandchildren, and has argued that the money he is paying for alimony could go to the grandchildren. Defendant also notes that since his retirement, his level of income is $90,000 less than it was in 2000. Plaintiff believes that this is the most objectionable allegation and that it is unconscionable that defendant would use Stacey's unfortunate circumstances to pretend he has to support his grandchildren, arguing that defendant's allegations are false. Plaintiff clarifies that Stacey had a nervous breakdown when her husband died, so defendant relocated to Alabama and moved into her house. However, plaintiff contends that both parties helped with the grandchildren, and plaintiff even looked into relocating to Alabama, but was told by the defendant that such a move was unnecessary. Acknowledging that Stacey's caretaking ability was limited for a time, plaintiff points out that Stacey has since filed to have full custody restored to her. Moreover, plaintiff asserts that Stacey has nevertheless remained the primary caretaker and provider for the children, and defendant has contributed little to help out with his grandchildren. Specifically, plaintiff notes that Stacey received approximately one million dollars from her deceased husband's life insurance and the children get Social Security benefits. In effect, plaintiff avers that Stacey supports defendant as well. Finally, plaintiff argues that defendant lives a more comfortable life, as alimony and her share of defendant's pension are her only sources of income. For the foregoing reasons, the court finds that defendant has failed to prove a substantial and permanent change in circumstance exists.

Defendant's sole point on appeal is that "[t]he trial court erred by deciding the case without holding a plenary hearing." We reject defendant's argument and affirm substantially for the reasons expressed by Judge Hodgson in his written decision of May 23, 2008. We add only the following brief comments on the change of circumstances contention.

Defendant did provide a Case Information Statement (CIS) with his motion. However, he did not, as required by Rule 5:5-4(a), provide a copy of the earlier CIS upon which the permanent alimony of $400 monthly as agreed to by the parties eight years earlier was based. Moreover, the permanent alimony figure was negotiated and presumably contemplated defendant's retirement since he was fifty-three years old when he appeared before Judge Piscal on September 19, 2000.

Defendant claims that he would like to use the alimony he is paying to his former wife for the benefit of his grandchildren. His CIS does not reflect that he is providing any support to them now. Moreover, as it appears on the CIS, he incurs no shelter expenses because he is living under his daughter Stacey's roof. These factors only reinforce the decision that a plenary hearing was not warranted on the basis of changed circumstances on the record then before Judge Hodgson.

 
Affirmed.

(continued)

(continued)

7

A-5180-07T3

January 14, 2009