EDWARD BONFRANCESCO v. TINA BONFRANCESCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4169-12T1

EDWARD BONFRANCESCO,

Plaintiff-Appellant,

v.

TINA BONFRANCESCO,

Defendant-Respondent.

_____________________________________

April 8, 2014

Submitted February 24, 2014 Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1118-02.

Edward Bonfrancesco, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Edward Bonfrancesco appeals from an order entered by the Family Part, dated March 22, 2013, which addressed post-judgment motions by plaintiff and defendant Tina Bonfrancesco. For the reasons that follow, we affirm.

I.

The parties were married in 1986. The parties had two children: K.B., who was born in 1986, and A.B., who was born in 1990. The parties separated in 2001, and the marriage was dissolved by an amended final judgment of divorce, which incorporated the parties' property settlement agreement (PSA). Among other things, the PSA required plaintiff to pay defendant $1400 per month in permanent alimony.

In the PSA, the parties agreed they would share joint custody of the children, and defendant would be the parent of primary residence, with plaintiff granted reasonable and liberal visitation. Since each child was receiving government benefits of $248 per month, and that amount was comparable to the amount plaintiff would be required to pay under the Child Support Guidelines, the parties agreed that plaintiff would not be required to pay child support.

However, the PSA required plaintiff to maintain the children on his health insurance plan, "so long as it is available to him through his employment." Plaintiff also was responsible for all of the children's unreimbursed medical, dental and pharmaceutical expenses, if the providers are within the restrictions of the plan utilized. The PSA required defendant to consult with plaintiff before incurring any extraordinary medical or dental expense.

The PSA also required plaintiff to maintain a $250,000 life insurance policy, naming defendant and the children as beneficiaries. The PSA stated that plaintiff is entitled to one-third of the insurance proceeds, if alimony is still payable. Each child is entitled to one-third of the policy proceeds so long as that child is not emancipated.

The PSA addressed the parties' retirement assets. Each party waived any interest in the Individual Retirement Accounts of the other party. The PSA noted that defendant had a pension plan through her employment, which the parties agreed was subject to equitable distribution. Defendant agreed to transfer fifty percent of the value of this asset to plaintiff by a Qualified Domestic Relations Order (QDRO).

The PSA also stated that plaintiff had a pension through his employment with the New Jersey Air National Guard, and the parties agreed that a portion of that pension would be subject to equitable distribution. The PSA set forth a formula for determining the dollar amount payable to defendant, upon plaintiff's retirement from the military. The PSA stated that defendant's share shall be payable to her by direct allotment or QDRO, if possible.

In November 2005, the Department of the Air Force informed plaintiff that he was to be relieved of service on December 12, 2005, and retired on permanent disability, effective December 13, 2005. It is undisputed that plaintiff's disability was due to certain health issues. However, according to the Department's discharge order, the disability was not received in the line of duty as a direct result of an armed conflict, or caused by an instrumentality of war and incurred in the line of duty during a war.

In August 2006, the trial court entered an order finding that plaintiff's pension was a disability pension that was not subject to equitable distribution. The order stated, however, that this determination was

without prejudice to Defendant. Should the nature of Plaintiff's benefit change or should he again be entitled to receive his military pension, rather than the disability pension, Defendant may have this matter reviewed by the Court if the parties cannot reach an agreement with regard to same.

The order required plaintiff to update defendant each year as to the status of his "disability and/or military pension."

In the fall of 2012, defendant filed a motion to (1) enforce plaintiff's alimony arrears payments; (2) compel plaintiff to pay medical insurance premiums for A.B.; (3) require plaintiff to pay certain medical expenses; (4) compel plaintiff to verify his address; and (5) require plaintiff to provide proof of life insurance coverage.

On January 10, 2013, plaintiff opposed defendant's motion and filed a cross-motion seeking an order: (1) terminating his alimony obligation; (2) declaring that A.B. is emancipated; (3) compelling defendant to complete a QDRO; and (4) requiring defendant to pay plaintiff's counsel fees.

On January 25, 2013, the court entered an order on the parties' motions. The court denied plaintiff's application to declare A.B. emancipated, and ordered plaintiff to furnish proof that he was maintaining medical insurance for A.B. until his emancipation. The court denied plaintiff's motion to terminate his alimony obligation, and required plaintiff to pay alimony arrears in the amount of $1,299.72, at the rate of $110 per month. The court also ordered plaintiff to reimburse defendant for certain medical expenses, and provide proof of life insurance coverage. Defendant was ordered to provide plaintiff with information regarding her pension status.

On February 11, 2013, plaintiff filed a motion for reconsideration of the January 25, 2003 order. Plaintiff sought: (1) proof that A.B. was attending college on a full-time basis, without breaks; (2) a change in the order's provision regarding life insurance; (3) to compel defendant to provide her income tax records for the three previous years; (4) to decrease the amount of his monthly payment of arrears to $50; (5) to require A.B. to submit his medical/dental bills directly to him, and to provide signed "medical/dental releases"; (6) to require the parties to use regular mail for all future correspondence; (7) reconsideration of the court's decision regarding certain medical expenses; and (8) further review of the court's decision on the reduction of alimony.

Defendant opposed plaintiff's motion and submitted a cross-motion in which she sought to require plaintiff to continue to provide health insurance for A.B., even after his twenty-third birthday and college graduation. She demanded relief regarding plaintiff's pension, saying that plaintiff had admitted he had retired, but failed to advise her what the retirement meant. She also sought attorneys' fees.

On March 22, 2013, the judge heard oral argument on the motions. On that date, the judge entered an order addressing the motions. The judge denied plaintiff's application to declare A.B. emancipated. The judge ordered plaintiff to continue to maintain his life insurance policy, with defendant and A.B. as beneficiaries. The judge required plaintiff to maintain health insurance coverage for A.B. until his twenty-third birthday or graduation from college, whichever occurs last.

The judge further determined that certain disputes about A.B.'s medical expenses had been resolved, since these costs had been covered by health insurance. However, the judge found that plaintiff was obligated to pay A.B.'s unreimbursed dental costs, including the cost of A.B.'s dental night guard.

The judge denied without prejudice plaintiff's application to compel defendant to provide copies of her income tax returns for the previous three years. The judge found that defendant was not required to provide these records because plaintiff had not shown changed circumstances that would warrant review of his spousal support obligation. The court also denied defendant's application for an increase in alimony, finding that defendant also failed to make a showing of changed circumstances warranting such relief.

In addition, the judge granted in part, and denied in part, defendant's application to compel plaintiff to complete a QDRO for his retirement benefits. The court noted that plaintiff had certified that his retirement benefits consisted of disability payments, and the court had previously determined that disability payments are not subject to equitable distribution. The judge stated, however, that it was unclear whether defendant was receiving a disability or military pension. The judge allowed both parties to conduct discovery on these issues.

The judge also denied plaintiff's application for reconsideration of its prior decisions regarding the amount of the arrears payments, submission of proofs regarding A.B.'s medical/dental expenses, and plaintiff's application to terminate his alimony obligation. However, the judge granted plaintiff's motion to require the parties to communicate through regular mail, but ordered that the telephone could be used in an emergency. In addition, the judge granted defendant's application for an award of attorney's fees and costs, and awarded her $750. This appeal followed.

Plaintiff argues the motion judge erred by: (1) refusing to compel defendant to produce her income tax returns for three years; (2) permitting discovery concerning his retirement benefits; (3) suggesting that defendant would be the sole beneficiary on his life insurance policy after A.B. is emancipated; (4) awarding defendant $750 in attorney's fees; and (5) ordering him to pay for A.B.'s dental night guard.1

II.

We turn first to plaintiff's contention that the motion judge erred by refusing to order defendant to produce three years of her income tax records. As we noted previously, plaintiff filed a motion seeking to terminate his alimony obligation. In that motion, plaintiff noted that the amount of his alimony obligation was based on defendant's inability to work. He claimed that he "caught" defendant working, and sought her income tax returns to substantiate the claim.

In his January 25, 2013 order, the judge denied plaintiff's motion, finding that plaintiff had not presented a prima facie showing of changed circumstances that would warrant relief from his alimony obligation. The judge noted that in April 2006, plaintiff's alimony obligation had been reduced from $1,400 to $1,200.

The judge said plaintiff's income was less than his income as reported in March 2006, but the decrease was insufficient to warrant review of the alimony obligation at that time. The judge also observed that defendant's financial circumstances "have decreased as well." The judge ordered plaintiff to continue paying alimony of $1,200 per month, plus $110 per month towards his arrears.

Plaintiff thereafter filed a motion seeking, among other things, defendant's tax records for the previous three years so that he could review her work history. The judge denied the motion. In his March 22, 2013 order, the judge again stated that discovery was not warranted because plaintiff had not established a prima facie case of changed circumstances.

It is well established that a party seeking modification of a support obligation must show a change of circumstances that will warrant relief from the obligation. Lepis v. Lepis, 83 N.J. 139, 157-58 (1980). Unless the moving party makes such a showing, the court will not order discovery from the former spouse concerning his or her financial status. Id. at 157.

We are convinced that the motion judge did not err by denying plaintiff's motion to compel discovery. In her January 15, 2013 certification, defendant noted that she was unemployed and had not earned any income in 2012. She indicated that the business for which she had been working closed in January 2012.

In the PSA, the parties acknowledged that defendant had been declared disabled and was receiving social security disability benefits. In his January 2013 motion, defendant presented no evidence indicating that defendant was no longer disabled. Furthermore, the record indicated that, while defendant may have had some employment prior to January 2012, she earned no work-related income in 2012. She certified that she remained unemployed in 2013.

Thus, the record failed to demonstrate that the circumstances that prevailed when the parties entered in the PSA had changed in any meaningful manner. For this reason, the judge properly determined that discovery concerning defendant's employment and financial status was not warranted.

III.

Plaintiff further argues that the motion judge erred by allowing discovery on his retirement benefits. Again, we disagree.

Here, defendant sought an order requiring plaintiff to complete a QDRO for his retirement benefits as required by the final judgment of divorce. Plaintiff opposed the application, on the ground that in its August 1, 2006 order, the court had determined that his retirement benefits were disability payments that are immune from equitable distribution.

In the March 22, 2013 order, the judge stated that it was unclear whether plaintiff was receiving a disability or military pension. The judge ordered the parties to conduct discovery on this issue. The order indicates that, if the parties could not resolve the issue, the court would review the matter upon further application.

On appeal, plaintiff argues that the issue was conclusively resolved by the court's August 1, 2006 order. However, that order stated:

Plaintiff's disability pension is immune from equitable distribution. . . . However, this is without prejudice to Defendant. Should the nature of Plaintiff's benefit change or should he again be entitled to receive his military pension, rather than the disability pension, Defendant may have this matter reviewed by the Court if the parties cannot reach an agreement with regard to same.

Thus, the April 1, 2006 order did not preclude further litigation on the question of whether defendant's retirement benefits consisted solely of payments for his disability which are not subject to equitable distribution. See Avallone v. Avallone, 275 N.J. Super. 575, 584 (App. Div. 1994). Accordingly, we conclude that the motion judge did not abuse his discretion by allowing further discovery on this issue.

IV.

In addition, plaintiff contends that the motion judge erred by suggesting that, upon A.B.'s emancipation, defendant would be the sole beneficiary of plaintiff's life insurance policy.

As we stated previously, the PSA provided that plaintiff would maintain a life insurance policy, with a face amount of $250,000. The PSA required plaintiff to name defendant as a beneficiary of one-third of the policy, so long as alimony support payments are payable. The parties' two children would be named as beneficiaries for two-thirds of the policy, allocated one-third to each child, "so long as the child is unemancipated."

In its April 2006 order, the court reduced plaintiff's life insurance responsibility to $167,500, with defendant and A.B. each named as beneficiaries for one-half of the policy. In the January 25, 2013 order, the judge directed plaintiff to provide proof of coverage.

Plaintiff thereafter filed a motion which, among other things, disputed the court's determination requiring that defendant be covered by his life insurance policy. In response, defendant filed a motion seeking an order requiring plaintiff to maintain a life insurance policy in the amount of $167,500 with defendant named as sole beneficiary even if A.B. is deemed emancipated.

In his March 22, 2013 order, the judge found no basis to reconsider his prior decision concerning life insurance. The judge also granted in part and denied in part defendant's motion. The judge ordered that plaintiff's policy, with defendant and A.B. named as beneficiaries, "shall remain in full force and effect pending further agreement of the parties or Order of the Court."

Thus, the judge never ruled on the issue raised by plaintiff in this appeal. The judge maintained the status quo as regards life insurance. When A.B. is declared emancipated, plaintiff can file a motion in the trial court and seek a decision on the amount of insurance he must maintain.

V.

Plaintiff argues that the judge erred by requiring him to pay $750 of defendant's counsel fees. In his order of March 22, 2013, the judge noted that he had considered the factors under Rule 5:3-5 and found that an award of $750 was warranted.

Plaintiff contends that the judge erred because defendant was allegedly in contempt for failing to provide him with a QDRO, and he was in contempt of "nothing." He argues that the judge was rewarding defendant for trying to bill him twice for certain medical bills, which had already been paid by his insurance.

We are convinced that plaintiff's arguments on this point are without sufficient merit to warrant comment. R. 2:11-3(e)(1)(E). We merely note that the award of counsel fees was not an abuse of discretion, since plaintiff obtained virtually no relief in his reconsideration motion, and defendant was forced to incur the expense of having her attorney respond to that motion. Moreover, plaintiff had the greater ability to pay defendant's counsel fees.

Plaintiff further argues that the judge erred by ordering him to pay $456 for A.B.'s dental night guard. He claims that he should not be required to pay this cost because defendant did not get his prior approval for the expense. Plaintiff claims that he could have taken care of this "problem" with an $18 sports guard.

We are convinced that plaintiff's arguments on this issue are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We note, however, that the PSA requires that plaintiff bear the cost of all unreimbursed medical and dental expenses. It appears that plaintiff had notice of A.B.'s dental appointment, and plaintiff claimed that defendant "tricked" him by changing the time of the appointment. In any event, plaintiff has not shown that A.B. did not require the dental guard. He did not present competent evidence showing that the "problem" could have been addressed at less cost. Therefore, any objection to the expense would have been unreasonable.

Affirmed.

1 In his brief, plaintiff also argued that the court erred by ruling that A.B. was not emancipated. By letter dated June 13, 2013, plaintiff has withdrawn this argument.