DAVID P. DONDONA, SR v. DIANE MARIE DONDONA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAVID P. DONDONA, SR.,

Plaintiff-Respondent,

v.

DIANE MARIE DONDONA,

Defendant-Appellant.

___________________________________________

SubmittedMay 27, 2015 Decided June23, 2015

Before Judges Haas and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1242-07.

Vincent R. Kramer, Jr., attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this matrimonial matter, defendant Diane Marie Dondona appeals from the August 1, 2014 order denying her post-judgment cross-motion to increase the alimony payments being made to her by plaintiff, David P. Dondona, Sr. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand the matter to the trial court for further proceedings in conformity with this opinion.

The parties were married in May 1984 and divorced in January 2008. There was one minor child. The Property Settlement Agreement (PSA) incorporated in the final judgment of divorce required plaintiff in paragraph 9 to pay $600 per month in alimony until the emancipation of the child, "at which time the alimony will be $950 per month. In the event that the circumstances between the parties change, . . . the parties will come to an agreement with respect to a change to said alimony and/or move forward with a Motion to the court to make a determination with respect to same."

Defendant began living with another man in July 2009, and as a result, plaintiff stopped making his alimony payments in July 2010 and filed a motion to terminate the payments altogether. On March 28, 2012, the parties entered into a consent order with regard to their financial obligations. The portion relevant to this appeal read

The alimony obligation of the Plaintiff to the Defendant as set forth in Paragraph 9 of the Property Settlement Agreement between the parties and incorporated in the Final Judgement of Divorce dated January 14, 2008 is hereby modified as follows

Commencing in the month of January 2012, Plaintiff shall pay to Defendant the sum of $375 per month on account of alimony and on the first day of each and every month thereafter until further Order of the Court or consent of the parties. In all other respects, Paragraph 9 is unaltered.

Plaintiff filed a motion in May 2014 to emancipate the parties' daughter and for termination of alimony due to defendant s six years of cohabitation. Defendant filed a cross-motion requesting the alimony payments of $950 monthly as originally set forth in the PSA. She did not object to the emancipation of the child.

Plaintiff contends that his financial circumstances have changed for the worse since his divorce. Once a managing partner, his business has since closed and he now makes $2,400 net per month. Plaintiff references pay stubs and his alleged changed circumstances in his original motion papers and includes a list of bills and another pay stub in his appendix but it is not clear what else may have been provided to the family court judge. Defendant asserts that the consent order preserved her right to revert back to the terms of the PSA and that although she lives with another person, they equally split all bills and she does not receive any financial assistance from him.

The trial judge granted plaintiff's motion to emancipate the parties' child but denied the motion to terminate alimony noting his inability to assess the financial circumstances of the parties without completed Case Information Statements (CIS) and the required financial documents. Defendant s motion to increase alimony to $950 a month was also denied. The judge stated

[t]he consent order provides, with no ambiguity, that Plaintiff must pay to Defendant $375 per month for each and every month after January 2012 until Order of the court. Although the Consent Order provides that in all other respects the PSA is not altered, the Consent Order clearly modified Plaintiff s alimony obligation. In sum, pursuant to the Consent Order, Plaintiff s alimony obligation is $375 per month regardless of the emancipation of [the child].

We begin with a review of governing principles. We are required to accord deference to the Family Court s decisions because of the court s "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, we owe no special deference to the trial judge s "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, LP v. Twp., Comm. of Manalapan, 140 N.J. 366, 378 (1995). We apply these standards of review to determine whether either party presented a prima facie showing of changed circumstances warranting a termination or modification of alimony. Alimony orders are always subject to review and modification upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The party seeking modification of a support obligation has the burden of showing "changed circumstances" warranting relief. Id. at 157.

Both parties seek a change in alimony. The PSA provided that if circumstances between the parties were to change, the parties could either come to an agreement or, through a motion, request the court to make a determination as to a different alimony amount. The subsequent consent order, then, was an agreement between the parties to change the alimony amount at that specific time going forward until they either came to a new agreement or a court order modified the amount.

We agree with the trial judge that, although the consent order stated the remainder of paragraph 9 of the PSA was unaltered, the paragraph in question refers to other financial issues in addition to alimony, making it unclear as to which portions of the paragraph were not being altered. We also find it unlikely when the parties agreed to lower the alimony figure in 2012 (plaintiff had stopped paying altogether due to defendant s co-habitation), that they intended the alimony figure to then increase to more than double that amount two years later.

Plaintiff provided some documents with his motion alleging a change of circumstances, although not the complete CIS as is required. Defendant does not deny her cohabitation but also did not provide her financial information. Under these circumstances, we conclude that the better course would have been for the trial judge to order both parties to exchange completed CIS and financial documents and other discovery the court deemed appropriate. After that exchange of information, if the parties are unable to agree on an alimony figure, the trial court will determine if an issue of material fact remains, and whether a plenary hearing is necessary to resolve the dispute.

Although we agree with the trial court that it was not appropriate at the time of the defendant s cross-motion to grant the increase of alimony to $950 per month, we find that both parties had provided sufficient information for the court to order the appropriate discovery and thereafter make detailed findings of fact as to an alimony determination. We therefore reverse and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.

Reversed and remanded.