DEBORAH FINTLAND v. GREGORY FINTLAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2720-11T1

DEBORAH FINTLAND,

Plaintiff-Appellant,

v.

GREGORY FINTLAND,

Defendant-Respondent.

_________________________________________

March 22, 2013

Submitted March 13, 2013 Decided

Before Judges Axelrad and Happas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-545-08.

Hellring Lindeman Goldstein & Siegal, LLP, attorneys for appellant (Lisa P. Parker, of counsel and on the briefs).

M. Joseph Kurzrok, attorney for respondent.

PER CURIAM

Plaintiff Deborah Fintland appeals from the December 22, 2011 order of the Family Part granting defendant Gregory Fintland's motion for a reduction in his alimony payments. She asserts procedural and substantive errors. Having considered the record before us, and in light of the applicable legal principles, we reverse and remand for further proceedings.

The parties were married on July 14, 1985. One child, now an emancipated adult, was born of the marriage. On February 13, 2008, the court entered a dual judgment of divorce incorporating the parties' oral settlement agreement. On March 24, 2008, an amended final judgment of divorce was entered which incorporated the parties' written property settlement agreement. That agreement provided for defendant to pay alimony in the amount of $19,800 per year.

On July 10, 2009 the court denied defendant's first motion seeking a reduction in alimony. Almost one year later, on June 14, 2010, a second motion requesting a reduction in alimony was denied. The trial judge found that in both of these motions, defendant failed to demonstrate a prima facie showing of changed circumstances to justify a modification of his alimony obligation. This appeal involves the third post-judgment motion seeking a reduction in alimony filed on July 28, 2011.1

There is no dispute that, in violation of R.1:6-2(a), the defendant's third notice of motion seeking to modify alimony did not designate a return date. After service of the motion, defendant's counsel notified plaintiff that the motion would be heard on September 16, 2011. For some unexplained reason, the trial court, sua sponte, decided to hear the motion ten days earlier without advising plaintiff of this change. Consequently, the court granted defendant's motion as unopposed.

On October 7, 2011, plaintiff filed a motion to vacate the order of September 6, 2011. Plaintiff requested that the court establish a new return date and allow her to submit a response to defendant's motion.

The court heard plaintiff's motion telephonically on November 18, 2011. During oral argument, defendant's counsel conceded that defendant's motion to modify alimony should be heard on the merits and did not object to plaintiff filing opposition. Rather than granting plaintiff's motion to vacate the September 6, 2011 order, the motion judge considered the application, stating: "I won't vacate the order. I'll stay the order until I hear from both counsel on the merits." Oral argument was set for December 21, 2011.

The record reveals that defendant worked for his uncle in the printing industry. In 2006 he earned $61,231 and in 2007 he earned $57,585. In 2008, after his divorce, his uncle passed away. His job was no longer available. Defendant stated that out of desperation he took a job with his brother in California. In 2008 he earned $18,993 and in 2009 he earned $33,468.

Plaintiff contends that nothing has changed since the court denied defendant's two prior motions for a reduction in alimony. In fact, according to the plaintiff, defendant's financial situation has improved as he no longer has an obligation to pay child support, college tuition or medical insurance. Plaintiff also urges that defendant still has not demonstrated any effort to seek alternative employment commensurate with his prior earnings.

The motion judge, after hearing oral argument on December 21, 2011, granted defendant's motion. An order was entered on December 22, 2011 reducing defendant's alimony obligation from $19,800 per year to $10,000 per year. This appeal followed.

On appeal, plaintiff argues that due to procedural and legal errors, the order of December 22, 2011 should be reversed. We conclude that the motion judge improperly denied plaintiff's motion to vacate the order of September 6, 2011, and failed to apply the appropriate legal standards authorizing courts to modify alimony orders set forth in Lepis v. Lepis, 83 N.J.139 (1980) and N.J.S.A.2A:34-23.

Although not so expressed, plaintiff's motion to vacate the court's September 6, 2011 order was a motion made pursuant to R.4:50-1(f). In Parker v. Marcus, 281 N.J. Super.589, 593 (App. Div. 1995), certif. denied, 143 N.J.324 (1996), we referenced our decision in Jansson v. Fairleigh Dickinson University, where we stated that whether a litigant was seeking relief from judgment pursuant to the relaxation provisions of R.1:1-2 or the catchall provisions of R.4:50-1(f), "'justice is the polestar and our procedures must ever be moulded and applied with that in mind.'" 198 N.J. Super. 190, 195 (App. Div. 1985) (quoting New Jersey Highway Auth. v. Renner, 18 N.J.485, 495 (1955)).

In this case, the proper procedure would have been for the motion judge to have granted plaintiff's motion to vacate the September 6, 2011 order. The motion judge, on December 21, 2011, then would have considered defendant's motion to modify alimony anew on the merits. Unfortunately, the motion judge improperly considered plaintiff's response to defendant's initial motion as being a motion for reconsideration, pursuant to R.4:49-2, and held that plaintiff did not meet the standard for reconsideration.

Defendant's motion to modify alimony, initially decided on September 6, 2011, was never decided on the merits. Accordingly, we vacate that order and remand.

Our well-established jurisprudence requires the moving party in an alimony modification proceeding to prove a prima facie case of changed circumstances prior to the court ordering discovery, full financial disclosure of both parties, and a plenary hearing. Lepis v. Lepis, 83 N.J.139, 157-59 (1980). The moving party must demonstrate that "changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157. However, modification of alimony is not warranted if the change in circumstances is "only temporary." Id. at 151.

When presented with a request for support modification, a family court must consider "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id.at 152. One of the occurrences that courts have recognized to warrant "changed circumstances" is a decrease in the supporting spouse's income. Id.at 151. Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super.346, 354 (App. Div. 1988) (internal citation omitted), certif. denied, 114 N.J.505 (1989). "[A] court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid.(alteration in original) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J.307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller v. Miller, 160 N.J.408, 420 (1999).

"Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). The Family Part's conclusions on a motion to modify alimony are not disturbed on appeal unless the court has made an error of law, Avery v. Avery, 209 N.J. Super. 155, 163 (App. Div. 1986), or the court's ruling is "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[,]'" Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974)).

Here, the motion judge failed to make adequate findings of fact and conclusions of law as required by R.1:7-4(a). Moreover, in making her assessment, she chose not to be guided by the Supreme Court's holding in Lepis. The motion judge also failed to acknowledge the statutory factors set forth in N.J.S.A.2A:34-23(a) and apply them to the facts of this case.

Given the nature of this record, we reverse and remand for the court to evaluate the facts and equities in light of the legal standards set forth in this opinion. Upon further review, should the court find that the defendant has proven a prima facie case of changed circumstances, it may order a plenary hearing. Lepis, supra,83 N.J.at 157-159.

Reversed and remanded. We do not retain jurisdiction.

1 This motion also requested that the court terminate the defendant's child support obligation, emancipate the child of the marriage and adjust the required life insurance. These issues are not in dispute.