GAYLYN B. BENNETT v. ROBERT P. BENNETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GAYLYN B. BENNETT,

Plaintiff-Appellant/

Cross-Respondent,

v.

ROBERT P. BENNETT,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

May 9, 2014

Submitted December 4, 2013 Decided

Before Judges Sapp-Peterson, Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0108-07.

Murray & Murray, attorneys for appellant/ cross-respondent (John D. Murray, on the briefs).

RobertP. Bennett, respondent/cross-appellant pro se (Mr. Bennett and Erlina Encarnacion, on the briefs).

PER CURIAM

This family matter involves the resolution of complex post-judgment motions between former spouses. After conducting oral argument on the motions, the Family Part entered an order on May 2, 2012, granting and denying relief in various respects. Plaintiff Gaylyn Bennett appeals certain aspects of the order and defendant Robert Bennett cross-appeals other aspects of the order. Both parties contend the motion judge erred in deciding the motions without a plenary hearing. After reviewing the issues raised by the parties, we affirm in part, and remand in part.

I.

The parties were married on June 13, 1976. Four children were born of the marriage but only one child is of issue in this appeal, Bob1 born in 1989. On April 3, 2008, the parties entered into a property settlement agreement ("PSA") that was incorporated into the final judgment of divorce. Pursuant to the PSA, the parties share legal custody of Bob and are jointly responsible for decisions involving his health, education, religious upbringing and the general welfare. The PSA further provides that Bob may not become emancipated during any time that he is not attending secondary or post-secondary schooling, and the parties agreed to be guided by the recommendation of Bob's treating physician.

Pursuant to Article II of the PSA, defendant was responsible for alimony payments to plaintiff in the amount of $120,000 per year, payable $10,000 monthly. The agreement provided that alimony may be reduced in the event of defendant's changed circumstances. During their marriage, defendant owned RP Bennett Custom Builders, LLC with an estimated cash flow of $489,651 annually.

In April 2009, defendant filed for bankruptcy in his personal and corporate capacity. As a result, the court discharged defendant's personal and business debt. In May 2009, defendant's current wife, Danielle Bennett ("Danielle") established Bennett Building & Remodeling, LLC ("BBR") as a single member corporation naming her as the sole owner. Defendant asserts his sole income is derived from his employment at BBR as a construction consultant.

We briefly describe the more recent motions filed by the parties to provide context for the instant appeal. In 2010, defendant filed a motion to modify his alimony obligation, and plaintiff filed a cross-motion for enforcement and counsels fees. In a September 28, 2010 order, the motion judge denied defendant's motion to reduce alimony; set a $3500 minimum alimony payment for defendant, however required alimony arrears to continue to accrue at $10,000 per month; and denied plaintiff's request to pierce the corporate veil of BBR without prejudice, but allowed for discovery to determine the extent to which defendant derives any benefit or income from the business. In that regard, the judge appointed Thomas Reck, CPA, as receiver and forensic expert to determine defendant's income stream and to address payment of arrears.2

In May 2011, defendant filed a motion for emancipation following Bob's relocation to Virginia and alternatively sought to have Bob, then twenty-two years old, undergo an evaluation to determine if he is a special needs child, still dependent on plaintiff. On June 17, 2011, the motion judge denied defendant's motion, but ordered Bob to submit to an evaluation and required a report from his mental health care provider in Virginia, specifying when he might be expected to support himself. The order also directed plaintiff to provide proof of Bob's college enrollment.

On September 16, 2011, Michael Jeffrey, L.P.C., L.M.F.T. and Dr. Grace Hadeed of Family Institute of Virginia, issued a report on behalf of Bob that indicated he suffered from major depressive disorder, severe anxiety and attention deficit disorder. The report further indicated that Bob required intensive treatment and "life skills training in order to improve his ability to function in day[-]to[-]day living."

On February 7, 2012, defendant filed a fourth motion seeking to modify his spousal support obligation, and to emancipate Bob. Plaintiff filed a cross-motion seeking thirty-one prayers of relief including enforcement of litigant's rights. A different motion judge conducted oral argument on the motions heard on May 2, 2012, and entered an order, without conducting an evidentiary hearing. The order, to which a Statement of Reasons was attached, granted relief to each party in part and denied relief to each party in part.

The order denied both parties' request for a plenary hearing, determined defendant established a change in his financial circumstances and reduced his alimony obligation to $3500 per month, and denied defendant's motion for emancipation. The judge granted plaintiff's motion, in part and found defendant in violation of litigant's rights and ordered various enforcement reliefs. The judge also entered judgment against defendant for $2000 in counsel fees pursuant to the September 28, 2010 order.

On appeal, plaintiff raises the following issues:

I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO REDUCE ALIMONY AS DEFENDANT FAILED TO DEMONSTRATE A SUBSTANTIAL CHANGE IN CIRCUMSTANCES HAD OCCURRED.

II. THE TRIAL COURT ERRED IN REDUCING PLAINTIFF'S ALIMONY WITHOUT ALLOWING DISCOVERY AND A PLENARY HEARING WHICH WAS JOINTLY REQUESTED BY THE PARTIES.

III. THE TRIAL [COURT] ERRED BY GRANTING A RETROACTIVE REDUCTION IN ALIMONY TO JULY 30, 2010, THE FILING DATE OF DEFENDANT'S PREVIOUS LEPIS MOTION, WHICH VACATED $130,000 OF PLAINTIFF'S ALIMONY ARREARS WITHOUT DISCOVERY OR A PLENARY HEARING.

IV. THE TRIAL COURT ERRED IN VACATING THE JUDGE['S] ORDER PERMITTING DISCOVERY NECESSARY TO PIERCE THE CORPORATE VEIL OF DEFENDANT'S SHAM CONSTRUCTION COMPANY.

V. THE TRIAL COURT ERRED IN REFUSING TO GRANT PLAINTIFF COUNSEL FEES.

In his cross-appeal, defendant responded to the points raised in plaintiff's brief, and argued in addition the trial court erred in modifying alimony with a plenary hearing, denying him counsel fees and failing to emancipate their son.

Having considered the parties' competing arguments and the documents in the record, and in light of the applicable law, we conclude the judge erred in deciding the motions without a plenary hearing to resolve the factual disputes raised by the parties' conflicting certifications and proofs. This matter was not one which could be decided on the papers. It required "findings of facts on properly adduced evidence." Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). In such a proceeding, the court will have a chance to assess the credibility of each movant's assertions, as tested through the rigors of cross-examination. Consequently, a remand for a plenary hearing is necessary.

With regard to defendant's application for a post-judgment modification of alimony, the motion judge found defendant established a prima facie showing of changed circumstances. That being so, the court has the right to order full discovery regarding the financial circumstances of the other spouse. Isaacson v. Isaacson, 348 N.J. Super. 560, 57 (App. Div. 2002). The September 2010 order, specifically paragraphs 35 and 36, granted plaintiff the right to depose defendant's wife, Danielle Bennett and to inspect the books, financial documents and other records of BBR. The instant order denied plaintiff's request for enforcement of those orders, without prejudice, pending the outcome of the ordered post-judgment ESP. On remand, the court shall reconsider plaintiff's request for discovery and the enforcement of the September 2010 order. The court may also permit any additional discovery it deems necessary and prudent.

As to plaintiff's contention that the motion judge erred in establishing the effective date of the modification to July 30, 2010, we need not decide that issue in light of our determination to vacate the order and remand for a hearing. The parties may present their positions on this issue, as well as the matters raised in their motions.

To be clear, our decision to vacate the May 2, 2012 order and remand the matter for a plenary hearing does not vacate the current alimony order. Defendant is to continue to pay $3500 per month with arrears accruing at $10,000 per month pursuant to the September 28, 2010 order, until such time as a new order is entered and an appropriate adjustment can be made to his probation account.

Finally, we are satisfied the court did not err in denying the award of counsel fees to both parties. "An allowance for counsel fees is permitted to any party accorded relief following the filing of a motion in aid of litigant's rights, R. 1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject to the provisions of Rule 4:42-9." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). "The assessment of counsel fees is discretionary, and will not be reversed except upon a showing of an abuse of discretion." Ibid. (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, (2001)).

Here, the trial judge considered the relevant factors contained in Rule5:3-5(c) and found defendant's application was not made in bad faith, and also determined neither party had the financial resources to contribute to the other parties' legal expenses. We find no basis to disturb his decision.

Affirmed in part. Vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Bob is a fictitious name to protect the privacy of the child.

2 On January 10, 2012, Robert C. Rehm, C.P.A., of Withum, Smith & Brown, on behalf of Thomas Reck issued a report pursuant to the September 28, 2010 order. Mr. Rehm found that defendant's sole source of earned income was derived from BBR; however, he also found that defendant was not treated as an employee and did not receive a W-2 form at the end of the year.