WILLIAM ARTHUR CLAYTON v. SUSAN CLAYTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0922-13T4

WILLIAM ARTHUR CLAYTON,

Plaintiff-Appellant,

v.

SUSAN CLAYTON,

Defendant-Respondent.

________________________________________________________________

A

November 18, 2014

Before Judges Koblitz, Haas and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1202-95.

Erika R. Marks argued the cause for appellant (The Marks Law Group, L.L.C., attorneys; Ms. Marks, on the brief).

Susan Clayton, respondent, argued the cause pro se.

PER CURIAM

This matter returns to us after we remanded, for further findings, the trial judge's decision on plaintiff William Arthur Clayton's1 post-judgment application to terminate alimony based on changed circumstances. We indicated that additional testimony could be taken at the discretion of the judge. Clayton v. Clayton, No. A-4009-10 (App. Div. March 14, 2012). A new judge handled the remand testimonial hearing and lessened the monthly reduction of alimony from $874 to $47. William again appeals, raising essentially the same arguments as he did on his initial appeal: that the cohabitant's financial support coupled with defendant Susan Clayton's earned income represent changed circumstances that warrant the elimination of alimony. After a thorough review of the remand record in light of the contentions advanced by William on appeal, we affirm all of the findings based on the opinion of the remand judge, except as to the contribution of the cohabitant, Stuart Vreeland, to Susan's fixed expenses. Rather than remand again, we use the facts as found by the remand judge to correct his calculations.

Except in the broadest outline, we will not repeat the facts relating to the marriage and subsequent cohabitation set forth in our original opinion. Clayton, supra, slip op. at 2 5. The parties were married in 1970, had four children, were divorced in 1997 and Vreeland moved in with Susan in 2002, a year after she purchased a townhouse in her name alone. The first judge found cohabitation and we affirmed that finding. "Cohabitation alone is not justification to terminate spousal support, Gayet v. Gayet, 92 N.J. 149 (1983), since the test for spousal support is the financial needs of the dependent spouse. The question is whether or not the relationship has reduced the needs of the former spouse." Ozolins v. Ozolins, 308 N.J. Super. 243, 247 (App. Div. 1998).

The remand judge found that Susan's job, which paid $28,000 annually, did not represent a change of circumstances because she had been employed at the time of the divorce. The judge found that her annual income had remained roughly the same over the intervening years, especially when inflation was taken into account. Calculating that Vreeland contributed $47 less than his half of the shared expenses, so that William was in part supporting Vreeland with alimony, the judge reduced the alimony by $47 only.2

As we noted in our prior opinion, the decision of whether to modify or terminate an alimony obligation founded on 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). We defer to the Family Part judge's fact finding, particularly to the extent that it is based upon credibility determinations. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

The remand judge conducted a hearing at which both parties testified. We defer to the thorough factual findings of the remand judge in all respects. In his calculations, the remand judge included as shared expenses almost all of Susan's Case Information Statement (CIS) Schedule A (shelter) expenses and a portion of her Schedule C (personal) expenses.3 To the extent that the remand judge's decision implicates legal principles, we independently evaluate those legal assessments de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We cannot affirm the judge's legal holding that Susan's shelter expenses are not fixed expenses. As we stated in our earlier opinion

[I]f the cohabitants' shared expenses represent fixed expenses that Susan would incur regardless of whether or not Vreeland lived with her, then it can be said that Vreeland's contribution is being used to partially support Susan.

[Clayton, supra, slip op. at 10.]

Fixed expenses in this context are similar to those in a child support calculation: "those incurred even when the child is not residing with the parent. Housing-related expenses, like dwelling, utilities, household furnishings and household care items, are considered fixed costs." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2640 (2015). As Susan testified, if she lived by herself in the townhouse, she would have the same shelter costs as she did with Vreeland living there.

The remand judge found Susan's shelter costs were $1963 and Susan and Vreeland's Schedule C shared personal expenses were $1720. He determined that Vreeland contributed $1483 a month plus $311, the monthly amortization of his previous lump-sum contributions to the household, for a total of $1794.4 Because we determine that only the personal expenses are shared expenses, Vreeland's one-half portion of the shared expenses is $860. Subtracting $860 from Vreeland's monthly contribution of $1794 reveals the excess monthly payments made by Vreeland, $934, which constitute support for Susan. Thus we determine, using the facts as found by the remand judge, but re-characterizing shelter as a fixed expense, that William's alimony should be reduced by a total of $934 rather than the $47 calculated by the remand judge. All of William's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part and reversed in part and remanded to enter a corrected order reducing William's original, agreed-upon alimony of $2300 by $934 a month, retroactive to March 23, 2010.5

1 As in our original opinion, we refer to the parties by their first names to avoid confusion.

2 If the supported spouse's "alimony is being used, at least in part, for the benefit of the paramour," then the alimony should be "modified accordingly." Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975).

3 We note that William disputes some of the personal expenses considered shared by the remand judge, in part because Susan did not testify that they were shared expenses. Because Susan was not represented by counsel, we do not deem her understanding of what is a shared expense to be dispositive. In light of his experience in family matters, we defer to the remand judge's review of the evidence presented through Susan's CIS as well as her testimony.

4 We round off to the nearest dollar.

5 The date William filed his motion to terminate alimony and the effective date ordered by the first judge.