LAURA HEALING v. RONALD HEALING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2152-14T4

LAURA HEALING,

Plaintiff-Respondent,

v.

RONALD HEALING,

Defendant-Appellant.

__________________________

April 1, 2016

Submitted March 9, 2016 Decided

Before Judges Fuentes, Koblitz, and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1222-99.

Heymann and Fletcher, attorneys for appellant (Ronald S. Heymann, Allison Lamson and Sabrina Andrews, on the briefs).

Kozyra and Hartz, LLC, attorneys for respondent (Judith A. Hartz, of counsel; Ms. Hartz and Rotem Peretz, on the brief).

PER CURIAM

Defendant Ronald Healing appeals from a December 30, 2014 order of the court, which enforced a prior October 6, 2014 order, requiring him to pay agreed-upon non-modifiable permanent alimony to plaintiff Laura Healing, and denying his cross-motion to reduce alimony due to his retirement in May 2014 brought on by illness. He also appeals from the $4505.14 in counsel fees awarded in the December 2014 order based on his bad faith in failing to comply with the October order and attempting to relitigate the same issue. We affirm based substantially on the comprehensive written statement of reasons prepared by Judge Maryann L. Nergaard.

The parties were married in 1976 and had two children. They divorced in 2001 after entering into a property settlement agreement (PSA), while represented by counsel, which obligated defendant to pay plaintiff $250 per week in permanent, non-modifiable alimony. The alimony provision of the PSA contains the following language

Notwithstanding any language concerning spousal support contained in Lepis v. Lepis, 83 N.J. 139 (1980), and Finckin v. Finckin, 210 N.J. Super. 204 (Ch. Div. 1990) and Crews v. Crews, 164 N.J. 11 (2000), the provisions contained herein relative to alimony shall be non-modifiable by either party and such provisions shall be irrevocable even if any of the following occur, solely or in combination;

(a) Husband or Wife's inability to obtain employment, loss of employment at any time, either on a temporary or permanent basis, for whatever reason; and

(b) Husband or Wife's illness, incapacity or inability to work for any reason whatsoever; and

(c) Increase in the income of Husband or Wife, regardless of how substantial, and regardless of the scope or duration of any such increase; and

(d) Inflation and/or increased costs and expenses for living for Husband or Wife's.

The parties have also envisioned and considered, in arriving at the alimony obligation set forth in this Article, any and all relevant events including, but not limited to, the following

(a) Increases or decreases in the cost of living; and

(b) Increases or decreases in their respective incomes; and

(c) Their loss of or inability to secure employment; and

(d) Any prospective changes of employment; and

(e) The subsequent acquisition (by inheritance, gift, or otherwise) or loss of assets by either of them; and

(f) The dissipation (whether negligent or not) of the assets received by each of them as and for equitable distribution in the instant matter; and

(g) Remarriage of Husband or Wife to a person of substantial means; and

(h) Substantial changes in Husband or Wife's physical or mental health; and

(i) Changes in the Federal and/or State Income tax laws; and

(j) The filing by or against Husband or Wife of any petition for bankruptcy or insolvency, arrangement for the benefit of creditors, or similar proceedings; and

(k) Any other event or events which may or actually do change the quality of the Husband's or Wife's life.

The PSA also included the following provision with respect to default by either party

Should either party fail to abide by the terms of this Agreement, the defaulting party will indemnify and hold harmless the other for all reasonable expenses and costs including attorney's fees, incurred in successfully enforcing this Agreement, providing that no party shall be liable to the other hereunder unless (a) the injured party shall have given the defaulting party written notice of the alleged default and (b) the defaulting party shall fail and/or refuse to cure such default within thirty days after receipt thereof or if such default is not capable of being cured within thirty days, then within a reasonable period of time after such notice.

At the time defendant filed his original motion to terminate alimony he was $3000 in arrears, having not paid alimony since July 2014. As of December 26, 2014, the judge found him to be $5250 in arrears. Judge Nergaard determined that defendant's income had steadily increased from approximately $51,000 when the parties divorced in 2001 to approximately $108,000 in 2013, with no increase in alimony. Plaintiff earned approximately $13,520 at the time of divorce and approximately $20,000 in 2013. Post-retirement, defendant was receiving $45,216 per year, without consideration of any 401(k) distribution or the income of his current wife.

Rather than file a timely motion for reconsideration of the October order, defendant filed a cross-motion in response to plaintiff's enforcement motion.1 Defendant's cross-motion repeated the substance of his earlier motion for modification of alimony. The judge denied oral argument on this repetitive cross-motion, reasoning that it raised no new issue. Palombi v. Palombi, 414 N.J. Super. 274, 290 (App. Div. 2010) (holding that a court has discretion to deny oral argument if it would be "unnecessary and unproductive").

Our Supreme Court has recognized the "special expertise" of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 412 (1998). This expertise extends to "alimony or child support actions, divorce or nullity actions, custody suits, actions to appoint a guardian ad litem, actions for adoption or termination of parental rights, and domestic violence complaints." Ibid. (citing R. 5:6 to 5:14). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Although we affirm based substantially for the reasons expressed in Judge Nergaard's thorough opinion, we will briefly review defendant's statutory argument. Defendant's central argument is that he was entitled to relief pursuant to the new language regarding retirement in the alimony statute, which states: "There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age." N.J.S.A. 2A:34-23(j)(1). This argument is misguided. The Legislature expressed that the new alimony act "shall not be construed either to modify the duration of alimony ordered or agreed upon . . . that [has] been incorporated into . . . any enforceable agreement between the parties." L. 2014, c. 42, 2(c). The parties made clear in their agreement that they intended a fixed alimony of $250 per week to continue permanently, regardless of defendant's "loss of employment . . . for whatever reason."

Affirmed.

1 Plaintiff argues we should dismiss this appeal because defendant failed to timely appeal from the October order. We choose instead to briefly discuss the merits of his appeal from the December order.