J.H. v. R.J.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0A-2087-13T4

J.H.,

Plaintiff-Appellant,

v.

R.J.H.,

Defendant-Respondent.

November 5, 2014

Submitted October 1, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-139-11.

John A. Albright, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff J.H. appeals two orders of the Family Part. On October 11, 2013,1 among other things, the trial judge denied plaintiff's request for a reduction in the child support she pays to defendant R.J.H. on behalf of their three children. The court also denied plaintiff's request for increases in the amount and duration of alimony payable to her by defendant. No counsel fees were granted to either party. On December 17, 2013, the judge also denied plaintiff's motion for reconsideration. Defendant did not participate in this appeal. We affirm.

The parties married on March 21, 1998, and divorced on January 23, 2012. Although represented by counsel earlier in the proceedings, plaintiff was self-represented by the date of the divorce hearing. The judgment incorporated a property settlement agreement (PSA) the parties signed that same day.

Plaintiff graduated from high school and did not work during the marriage. The PSA imputed gross minimum wage earnings to her of $15,600 as a starting point for child support calculations

For the purposes of child support, [] Wife, who is currently unemployed, was imputed an annual income of $15,600 gross. Child support shall be reviewed and recalculated every three years and a cost of living adjustment shall be applied every two years. [] Wife shall be imputed an annual income for child support purposes of $15,600 gross from February 1, 2012[,] to February 1, 2015. From February 1, 2015[,] to February 1, 2018, [] Wife shall be imputed an annual gross income of $20,000. Beginning February 1, 2018, [] Wife shall be imputed a minimum annual income of $25,000 for child support purposes. If [] Wife's actual gross income is greater than $25,000, the greater income shall be used for purposes of child support reviews.

Regarding alimony, the PSA stated

1. [] Husband shall pay limited duration alimony directly to [] Wife for a period of six (6) years, beginning February 1, 2012[,] and terminating January 31, 2018, subject to the terminating events hereinafter stated. From February 1, 2012, to February 1, 2014, [] Husband shall pay to [] Wife $1,750 per month by the first day of each month. From February 1, 2014[,] to February 1, 2016, [] Husband shall pay [] Wife $1,500 per month . . . From February 1, 2016, to January 1, 2018, [] Husband shall pay [] Wife $1,250 per month[.]

The PSA included "anti-Lepis" language making the alimony non-modifiable due to changes in circumstances

5. The parties [] further acknowledge and agree that the terms of the Agreement and the payments as set forth herein are in full and complete satisfaction of all claims for . . . support, maintenance, and/or alimony that one may owe against the other. The parties agree and intend that the terms of this Agreement that relate to alimony shall be final and irrevocable. The parties have envisioned and considered any and all foreseeable events occurring to either of them, including but not limited to increases or decreases in cost of living, increases or decreases in their respective incomes, their loss or inability to secure employment, any potential disability of either party, any prospective change of employment . . . and any other event or events which may or do change the quality of their separate economic lives. Moreover, each of the parties understands the holding in the case Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 164 N.J. 11 (2000), relative to modification of support provisions based on changes of circumstances, and lifestyle, and notwithstanding same, each party hereby irrevocably waives any right to seek a modification of the terms related to alimony in the future. Having considered all of the foregoing, the parties agree that the terms related to alimony shall be non-modifiable under any circumstances for any reason.

Plaintiff's case information statement (CIS), filed in 2013, indicated that in 2012 she earned $10,640 from part-time employment at a grocery store. Defendant's 2011 CIS shows his total 2010 earned and unearned income to be $80,281, including a base salary of $78,000. In 2011, defendant earned $81,727 by December 15.

Incidental to the divorce was bitter litigation centered around custody and visitation. Several Domestic Violence Act (DVA),N.J.S.A. 2C:25-17to -35,orders wereobtained, culminating in a post-divorce judgment Final Restraining Order (FRO) against plaintiff. Plaintiff's visitation and other contacts with the children were limited, contingent upon a psychiatric evaluation, which has never been provided.

The Family Part judge's October 11, 2013 order included extensive findings of fact detailing his analyses on each and every point the parties raised by way of defendant's motion to enforce child support and plaintiff's cross-motion regarding alimony. Relevant to this appeal, the judge found that defendant made two lump sum alimony payments of $1,750. Although plaintiff initially paid no child support, the probation department eventually began to garnish her pay. Because her pay was limited, the portion taken satisfied only part of her ongoing child support obligation and none of the arrears.

The court "automatically disqualified" defendant's request for an increase in child support and reduction in alimony since he did not provide updated financial information, including a current CIS. The judge did not find that either party had established a change in circumstances with regard to child support and found no basis to modify the alimony order given the anti-Lepis language. He offset plaintiff's arrearage of $22,370 against defendant's entire alimony obligation. By doing so, he concluded that at that time defendant owed plaintiff $9130 more in alimony than she owed him in child support. The judge therefore vacated arrears, except for the $9130 difference. His order reads

A. Defendant shall pay the amount of $1,840.002 per month ($1,750.00 plus $90.00) for the months of September, October, November, December 2013[,] and January 2014.

B. Defendant shall pay Plaintiff $221.00 ($380.00 less $159.00) for the month of February 2014.3

C. Beginning March 1, 2014 through January 1, 2016, Plaintiff will pay Defendant $159.66 per month in child support.4

D. Beginning February 1, 2016 through January 1, 2018, Plaintiff shall pay Defendant $409.66 per month in child support.5

________

2 $1,840.00 is calculated by adding Defendant's $1,750 per month obligation to repay his $9,130 arrears deficit plus the ongoing $90 difference in his alimony obligation less Plaintiff's child support obligation.

3 $380 is the remainder of Defendant's arrear[s] deficit ($1,750x 5 = $8,750 + $380 = $9,130) and $159 is the difference of Defendant's $1,500 per month alimony obligation and Plaintiff's ongoing child support obligation.

4 $159.66 is calculated by subtracting Defendant's alimony obligation of $1,500 per month from Plaintiff's child support obligation of $1,659.66 per month

($1,659.66 - $1,500 = $159.66).

5 $409.66 is calculated by subtracting Defendant's alimony obligation of $1,250 per month between February 1, 2016 and January 1, 2018 from Plaintiff's child support obligation of $1,659.66 per month

($1,659.66 - $1,250.00 = $409.66).

The judge's October 15 order modified these figures as follows

ORDERED that the Order on Pages 26 and 27, should include the following language: "It is ORDERED that Plaintiff's child support obligation shall be suspended for the months of September 1, 2013[,] through February 28, 2014. Beginning on March 1, 2014, Plaintiff's child support obligation shall be reinstated in the amount of $159.66 per month through January 1, 2016. Beginning February 1, 2016[,] through January 1, 2018, Plaintiff shall pay Defendant $409.66 per month in child support. Defendant's alimony obligation shall be suspended beginning March 1, 2014[,] through January 1, 2018."

With regard to attorney's fees, the court specifically found that "both parties have presented their requests in good faith. However, neither has clean hands and [neither has] complied with [the PSA] and Final Judgment of Divorce." The judge enumerated the Rule 5:3-5(c) factors, noting that despite plaintiff's claims regarding her limited resources, she was able to retain counsel to represent her in filing the motion. He likewise observed that defendant did not dispute his ability to pay his own fees. Therefore the judge concluded that neither party should be granted his or her request.

On reconsideration, the court observed that plaintiff's application contained nothing more than a notice of motion without either a supporting certification or affidavit, or even copies of the orders being appealed. Plaintiff did not identify any palpably incorrect reasoning or overlooked evidence, necessary to prevail on a motion for reconsideration. See R. 4:49-2. Nor did her application comply with Rule 1:6-6 or Rule 4:49-2. Thus the judge denied plaintiff any relief.

The judge found, however, based on defendant's certification in his cross-motion, that he previously failed to provide the court with an additional alimony payment he had made but forgotten. This brought his total payments to $5250. The judge adjusted the alimony arrears calculations to include this third payment, which plaintiff did not dispute having received. Defendant's arrears were thus fixed at $1206, as defendant had made payments towards the arrears balance since the entry of the first orders. Therefore, the amount owed by defendant to plaintiff for the month of January 2014 was fixed at $90. Beginning on February 1, 2014, plaintiff was ordered to pay child support of $159 per month for two years, then $409 per month for the following two years.

Lastly, the judge addressed a new subject both parties raised. He directed them to share the cost of retaining an expert to prepare a Qualified Domestic Relations Order dispersing to plaintiff her half of defendant's employee savings and investment plan as called for by the divorce decree.

With regard to attorney's fees, the court again reiterated the Rule 5:3-5(c) criteria and found that plaintiff

failed to present a reasonable argument in light of . . . her requested items of relief, . . . . Moreover, given the parties['] current financial circumstances, the Court finds that it would [be] prejudicial to award counsel fees to Defendant in this matter, as he appears to have a higher income than Plaintiff. Though Plaintiff's requests for relief were unsupported by a certification, the Court does not find that the positions espoused were brought forth in bad faith. After balancing the equities in the matter, the Court does not find that either party should be responsible for the other[']s attorney fees . . . .

Plaintiff raises the following points on appeal

POINT I

THE COURT ERRED IN DENYING PLAINTIFF'S REQUEST FOR AN ORDER DECREASING HER CHILD SUPPORT OBLIGATION, BECAUSE CHANGED CIRCUMSTANCES WERE ESTABLISHED BOTH PRIMA FACIE AND CONCLUSIVELY.

A. The Standard of Review

B. The Changed Circumstances Alleged By Plaintiff Were Undisputed.

C. Changed Circumstances Were Conclusively Established When The Motion Court Gave Effect To The Provisions Of The PSA DecreasingDefendant's AlimonyObligation Which Correspondingly Changed The Parties' Incomes.

POINT II

THE COURT ERRED IN DENYING PLAINTIFF'S REQUEST FOR AN ORDER INCREASING THE AMOUNT AND DURATION OF DEFENDANT'S ALIMONY OBLIGATION, WITHOUT THE BENEFIT OF A PLENARY HEARING, BECAUSE PLAINTIFF ESTABLISHED PRIMA FACIE CHANGED CIRCUMSTANCES, THE COURT MADE NO FINDINGS CONCERNING THE MARITAL LIFESTYLE AT THE TIME OF THE DIVORCE OR AT THE TIME OF THE APPLICATION TO MODIFY SUPPORT, AND THE COURT MADE NO FINDINGS AS TO THE ADEQUACY OR SUFFICIENCY OF THE PSA.

A. Plaintiff Established ChangedCircumstances To Warrant Discovery And A Plenary Hearing.

B. The Trial Court Failed to Consider Or Make Any Findings Regarding The Parties' Marital Lifestyle At The Time Of The Divorce And At The Time Modification Was Sought, As Required By Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004).

C. Enforcement Of The Anti-Lepis Clause Contained In The Parties' PSA Would Be Unreasonable And Grossly Inequitable Under Glass And Morris Under The Circumstances Of This Case.

POINT III

THE COURT ABUSED ITS DISCRETION IN ITS FAILURE TO AWARD COUNSEL FEES AND COSTS TO PLAINTIFF -- PARTICULARLY IN THE REQUIREMENT THAT PLAINTIFF OBTAIN AN EXPERT PSYCHIATRIC EVALUATION AT HER OWN EXPENSE BEFORE PARENTING TIME CAN BE RESUMED -- BECAUSE ITS DETERMINATION LACKS A FACTUAL UNDERPINNING AND LEGAL BASIS, AS PLAINTIFF IS INDIGENT AND THE COURT FOUND THAT DEFENDANT ACTED IN BAD[]FAITH.

I

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A Family judge's factfindings are accorded special deference because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413; see Gnall v. Gnall, 432 N.J. Super. 129, 146-47 (App. Div. 2013). "Therefore, if the trial judge's conclusions are evidentially supported, [this Court is] inclined to accept them." Gnall, supra, 432 N.J. Super. at 146. 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. (quoting Cesare, supra, 154 N.J. at 412).

"On the other hand, [appellate] review of a trial court's legal conclusions is always plenary." Id. at 147. We are "not bound by '[a] trial court's interpretation of the law and the legal consequences that flow from established facts[,]' which 'are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

II

We do not agree with plaintiff's assertion that she established even prima facie changed circumstances warranting a reduction in child support. That she was earning less income than imputed at the time of divorce is inconsequential. The imputed income was for full-time work, however, while plaintiff's earnings are for only part-time work. It is self-evident that even if she is unable to obtain more than part-time hours at her present place of employment, she has the ability to secure another part-time job. This would allow her in combination to earn the same, if not more, annual income than was imputed to her. Defendant works full-time and has the responsibility of raising three children. Plaintiff offers no reason why she cannot work forty hours per week, even if not for the same employer.

As a matter of law, that defendant's alimony payments were not promptly made is not a change of circumstance. Plaintiff's argument on this score is no basis for modification.

Equally unavailing is plaintiff's argument that because she was assigned counsel to represent her on violations of final restraining orders, having been found to be indigent, her status as indigent in DVA proceedings somehow establishes the change of circumstances envisioned in the caselaw with regard to alimony and child support. This is no basis for modification either.

Plaintiff further contends that the fact she lives with her parents establishes grounds for a reduction in her child support. We simply do not agree. If anything, her living expenses are much reduced compared with the shelter costs defendant must pay for himself and the children.

Requests for modification of child support based on changed circumstances require more than just the bare assertion that only part-time employment is available to a payor. See Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001). From this record, it appears that plaintiff's part-time employment is voluntary. See id. at 317.

The PSA, which plaintiff signed, required her to agree to a schedule of support for three children. Since then, she has become employed and, with only part-time work, is now earning two-thirds of the amount imputed to her with full-time work. This claim lacks merit.

III

"The supporting spouse's [alimony] obligation hinges on the parties' economic life during their marriage." Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (citing Lepis, supra, 83 N.J. at 150), certif. denied, 180 N.J. 354 (2004). "The needs of the dependent spouse . . . contemplate [his or her] continued maintenance at the standard of living [he or she] had become accustomed to prior to the separation." Ibid. (internal quotation marks omitted).

Though "the marital standard of living is the touchstone of a change of circumstances application, [] other considerations are similarly compelling. The agreement between the parties the contract upon dissolution is entitled to significant consideration." Id. at 372. "[T]here is a strong public policy favoring stability of consensual arrangements for support in matrimonial matters . . . ." Ibid. (quoting Avery v. Avery, 209 N.J. Super. 155, 160 (App. Div. 1986). "A judge's determination must be based not only on numbers, but also on what, in light of all the facts presented to it, is equitable and fair, giving due weight to the strong public policy favoring stability of arrangements." Ibid. (internal quotation marks omitted).

In Glass, one of the factors as compelling as marital lifestyle was the parties' agreement. Id. at 372. There, the court found that the

circumstances claimed to be changed by [the wife's] income are, in reality, the circumstances contemplated by the very agreement [the husband] now seeks to abrogate. . . . Judges and litigants alike contemplate that agreements entered into in good faith containing provisions such as permanent alimony shall be performed in accordance with their terms. The exception is that circumstances will arise that make enforcement of the agreement inequitable.

[Id. at 376, 379.]

A foreseeable event is not an exceptional circumstance.

In this case, plaintiff should be held to her voluntary agreement. She overlooks the fact that, when living with defendant, a family of five was supported by defendant's $78,000 annual salary. That is a modest lifestyle.

Thus we see no inequity in enforcing the agreement plaintiff entered into with regard to the amount and termination date for the alimony. When married, the parties enjoyed a modest lifestyle, and plaintiff does not elaborate on the reason she works part-time. The anti-Lepis clause, stating that the alimony was "final and irrevocable," therefore does not impose an inequitable burden. At the time of divorce, plaintiff was in a worse position than at present, she was unemployed and had no work experience. She nonetheless agreed to the alimony terms. Plaintiff has made no showing of circumstances which make the PSA inequitable and unenforceable.

IV

Finally, plaintiff contends the judge abused his discretion by refusing to award her counsel fees and costs. Plaintiff adds to "costs" payment for the expert psychiatric evaluation she is required to produce before resuming parenting time. We agree that the court could have expanded on its reasons for denying counsel fees, rather than merely reiterating the relevant factors. We note, however, that the heart of the judge's decision appeared to be his conclusion that although neither party had clean hands, both parties pursued their claims in good faith, sincerely believing they were entitled to the relief they requested. With three children and limited earnings, he therefore determined that neither party should be obligated to pay counsel fees for the other.

We "disturb a trial court's determination on counsel fees only on the rarest occasion, and then only because of a clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (internal quotation marks omitted). We see no abuse of discretion here.

We briefly comment on plaintiff's final argument, supporting her last point of error, which is important to the future well-being of this family. Without record support, plaintiff contends that to obtain the expert psychological and psychiatric evaluations necessary before she can resume parenting time may require expenses "into the tens of thousands of dollars." Plaintiff does not even detail any efforts she has made to obtain an evaluation. Plaintiff mentions contact with a community mental health center, but it is unclear whether she is currently receiving services designed to assist her in gaining unrestricted contact with her children, or for some other reason. Further delays in the process benefit no one.

Plaintiff does not separately address the reconsideration order. Since we consider the judge's initial order to have been correct on the merits, in any event, we do not find his denial of reconsideration to have been error either. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996) (R. 4:49-2 warrants relief "only when the court's decision is based on plainly incorrect reasoning or when the court failed to consider evidence or there is good reason for it to reconsider new information . . . .").

Affirmed.

1 The court sua sponte issued an amended order on October 15, 2013, correcting certain figures used in its earlier calculation.