SUPARB YOUNG v. JOSEPH HAGUE YOUNG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5398-07T25398-07T2

SUPARB YOUNG,

Plaintiff-Respondent,

v.

JOSEPH HAGUE YOUNG,

Defendant-Appellant.

___________________________________

 

Submitted April 1, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2463-01.

Dughi & Hewit, P.C., attorneys for appellant (Richard A. Outhwaite, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Joseph Young appeals from a June 6, 2008 post-judgment Family Part order denying his motion to modify or terminate his obligation to pay alimony to his former wife, plaintiff Suparb Young. There is no transcript available from the proceeding and plaintiff has chosen not to file a brief. Based upon the record before us, we conclude further proceedings, which may include a plenary hearing, are necessary to properly address the equitable claims raised by the parties. Accordingly, we reverse.

I.

The parties were married on November 17, 1975 and separated twenty-five years later, on November 1, 2000. Their three daughters were emancipated at the time the final judgment of divorce (FJOD) was entered on May 21, 2004.

The court conducted a trial to determine the issues of alimony and equitable distribution of assets and debts. Plaintiff, then age fifty-six, operated a licensed day care center from her home, where she cared for five children. Based upon the evidence presented at trial, the court concluded plaintiff's income, after the deduction of her business expenses, was $45,000 per year. Defendant, then age fifty-five, had earned approximately $87,000 in 2002, working as an employee for Pinkerton Computer Consultants, Inc. However, he lost his job in July 2003 and remained unemployed at the time the FJOD was entered. The court concluded defendant had the ability to earn $87,000, which was imputed as his annual gross income. After analyzing the facts and applying the statutory factors, N.J.S.A. 2A:34-23, the trial judge awarded plaintiff permanent alimony in the amount of $22,500 per year, payable $384.61 each week.

The court also analyzed and equitably allocated the marital assets. Plaintiff was awarded sixty percent of the net value of the former marital home and defendant's retirement account with First Union, and half the value of the bank accounts, automobiles, home furnishings, jewelry, stock, and IRAs.

Defendant did not pay the alimony as ordered and plaintiff sought enforcement of litigant's rights. The order entered on October 21, 2005, determined defendant violated the FJOD. The order also required the transfer of the title to the former marital home to plaintiff, extinguishing defendant's interest. Defendant did not attend the hearing, but believes the transfer was intended to satisfy the accumulated alimony arrears. The order made no calculations of the amount of alimony arrears or the value of defendant's forty percent interest in the home. Defendant estimates his equitable distribution interest in the home was at least $64,000 and he only owed alimony of approximately $33,750. Thus, he believes he should have been paid the excess equity.

On February 26, 2008, defendant, who was then sixty, filed a motion to modify or eliminate his alimony obligation and apply the value of his equitable interest in the marital home toward any remaining alimony arrears. Unable to obtain employment despite the passage of time, defendant suggested he was supported by the generosity of his daughter. He attached approximately 180 pages, representing correspondence and e-mails exchanged in search of employment. Defendant averred his advanced age prevented him from being hired. He also stated he was in "ill health" and attached numerous unexplained handwritten medical records, stating only that he was "being treated for hypertension, a chronic condition."

Defendant also attached a case information statement (CIS) disclosing his income and expenses, along with his 2007 federal income tax return, showing capital gain income of $2,336, realized from the sale of a little more than $18,000 of stock. Defendant partially completed the CIS's statement of assets and did not explain the disposition of the assets he acquired by way of equitable distribution. In addition to the elimination of his obligation to pay alimony, defendant sought payment of his remaining share of the equity in the former marital home.

Plaintiff, in a handwritten submission, objected to defendant's requests and sought enforcement of the terms of the FJOD. She noted defendant's recalcitrance and non-compliance extended to all the provisions of the FJOD. Defendant neither paid alimony nor released her equitable share of marital assets that were titled in his name. At her expense, plaintiff obtained an appraisal of the former marital home. The realty's net value was $160,094 and defendant's forty percent interest, after deducting one-half of the appraisal cost, was $63,900.25. Although the home was transferred to her by the court as a result of her last enforcement application, she had not received any alimony or her share of the value of the automobiles of $5,375; defendant's IRA of $57,972.60; stock sold by defendant in 2000 of $181,475.50; stock sold by defendant in 2001 of $15,014.50; defendant's Roth IRA of $3,000; and $10,000 in counsel fees as awarded in the FJOD. She explained she could not pay her bills or afford to hire counsel. Plaintiff did not attach a CIS but provided her bank statements, showing a balance on March 11, 2008 of $2,063.66. Neither party's submission addressed whether the parties complied with the distribution of the remaining marital assets or the remaining provisions of the FJOD.

The order entered by the Family Part judge on June 6, 2008 denied defendant's requested relief, but did not address the enforcement issues raised by plaintiff. Defendant's appeal ensued.

II.

Our review of a trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Since a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Id. at. 412 (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Consequently, we do "not disturb the 'factual findings and legal conclusions of the trial judge unless . . . 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.

However, we are not bound by "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). Recognizing the special expertise of judges hearing matters in the Family Part, if the trial judge's conclusion was evidentially supported, then we accept it. Cesare, supra, 154 N.J. at 412. We reverse "[o]nly when the [family] court's conclusions are so 'clearly mistaken' or 'wide of the mark'" to "ensure that there is not a denial of justice." New Jersey Div. of Youth and Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).

With respect to the trial court's role in making factual findings, Rule 1:7-4(a) requires a judge to make findings of facts and state conclusions of law "on every motion decided by a written order that is appealable as of right." Our cases have repeatedly stressed the importance of a trial judge's responsibility to provide findings and conclusions to assure informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). The oft-cited instruction by the Supreme Court regarding trial court factfinding bears repeating:

[The] failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.

[Curtis v. Finneran, 83 N.J. 563, 569-70

(1980).]

We cannot say whether the motion judge, who was also the trial judge, made the requisite factual determinations critical to our "meaningful review[,]" Ronan v. Adely, 182 N.J. 103, 110 (2004), because an equipment malfunction prevented the recording of the proceeding, leaving us without a transcript. When this occurs and the matter is appealed, we encourage motion judges to file a statement supplementing the record, pursuant to Rule 2:5-6(c), to aid our review. This record includes only defendant's speculation about the reasons for the court's decision. Moreover, we glean from the order entered denying defendant's motion that all matters presented were not fully addressed, as the parties' compliance with their respective obligations under the FJOD was not included.

III.

Turning to defendant's motion, we note courts have the continuing discretion to review and make decisions on alimony awards. Lepis v. Lepis, 83 N.J. 139, 146 (1980); Martindell v. Martindell, 21 N.J. 341, 355-56 (1956). The party seeking modification has the burden of demonstrating a change in circumstances, warranting relief from the support obligation. Lepis, supra, 83 N.J. at 157. When a supporting spouse brings an application for a downward modification of support, the main focus is the supporting spouse's ability to pay. Miller v. Miller, 160 N.J. 408, 420 (1999). The moving party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. Ibid. When determining whether a downward modification is appropriate, the judge may consider the supporting spouse's income, as well as his assets. Id. at 422. "Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred."
Lepis, supra, 83 N.J. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)).

Because almost all matrimonial matters involve factual disputes of some nature, the moving party must demonstrate a prima facie change in circumstances warranting relief before a court is required to hold a plenary hearing on a motion to modify support obligations. Ibid. Prima facie proof is "evidence that, if un-rebutted, would sustain a judgment in the proponent's favor." Baures v. Lewis, 167 N.J. 91, 118 (2001). It is against these principles that we consider defendant's appeal.

We are satisfied from our review of the record that defendant established a prima facie showing of changed circumstances caused by his involuntary unemployment. Despite his efforts, defendant had been unable to obtain employment for over four years. Defendant's pleadings demonstrated a substantial change in the economic circumstances from those found by the trial judge at the time of divorce and there was no question defendant was not earning the $87,000, imputed to him at the time the FJOD was entered. The evidence supporting defendant's suggestions he had insufficient funds and was being supported by his daughter was sparse. Nevertheless, the motion judge cannot merely reject defendant's evidence and, as necessary, the credibility of his statements must be tested at a plenary hearing.

We are also satisfied the motion judge improvidently rejected defendant's request for a credit against arrearages for the value of his interest in the former marital home previously transferred to plaintiff. There was no calculation of the total unpaid alimony or the value of defendant's equitable share of the realty. Equity would not allow the transfer of the asset in excess of the debt due. In this regard, we are mindful of plaintiff's assertion that defendant failed to transfer her equitable share of assets awarded in the FJOD. However, the motion judge did not address this issue, precluding our review. It may be defendant's equitable interest in the home was transferred to not only satisfy alimony arrearages but also to satisfy a portion of the equitable distribution award to plaintiff. If that was the court's determination, those findings must be clearly set forth.

As we stated, when a trial court has not made adequate findings of facts, we must remand for the necessary factual findings to be made. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. N. J., Dep't of Transp., 276 N.J. Super. 465, 470-73 (App. Div. 1994). If the disputed factual contentions are presented that require credibility determinations, we are satisfied that the trial judge should not have resolved the issue without a plenary hearing. Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

Accordingly, we reverse and remand the matter to the Family Part for further review of the issues. On remand, the judge must determine: (1) whether defendant demonstrates a change in financial circumstances warranting a modification of his obligation to pay alimony; (2) if proven, the amount of reduction appropriate under the facts presented, and whether any such reduction should be retroactive; (3) whether the transfer of the value of defendant's interest in the marital home satisfied the alimony arrearages; (4) if so, whether any excess funds remain after satisfaction of the computed alimony arrearages; and (5) whether the parties have complied with the obligations for equitable distribution of the marital assets set forth in the FJOD. As necessary, the judge must conduct a plenary hearing.

Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

When the trial on the matrimonial matter began on February 3, 2003, defendant had not yet lost his job. However, when the court finally started the second and final day of trial, over a year later on April 8, 2004, defendant was unemployed.

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A-5398-07T2

June 24, 2009