J.L.C.C. v. V.H.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

J.L.C.C.,

n/k/a J.B.,

Plaintiff-Respondent,

v.

V.H.C.,

Defendant-Appellant.

________________________________

December 19, 2016

Submitted December 5, 2016 Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1216-99.

V.C., appellant pro se.

J.B., respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, defendant appeals from the Family Part's April 15, 2015 order reducing his alimony and child support obligations. Defendant argues that the trial court should have terminated alimony, emancipated the parties' youngest child, and eliminated child support. We reverse and remand for further proceedings.

The parties are fully familiar with the procedural history and facts of this case and, therefore, a brief summary will suffice here. The parties were married in March 1979 and divorced in January 2001. They have three children.

Pursuant to the parties' Property Settlement Agreement ("PSA"), which was incorporated into their Dual Judgment of Divorce, defendant was required to pay plaintiff $400 per week in permanent alimony and $150 per week in child support. At the time the parties entered the PSA, defendant was working as an engineer for the Department of Defense. In the PSA, the parties agreed that defendant's government pension was subject to equitable distribution. Defendant also maintained a Thrift Saving Plan ("TSP"). Defendant agreed to pay plaintiff $13,800 from this plan in return for her agreement to relinquish her claim to any further monies from the TSP or his separate Individual Retirement Account.

Over the next eleven years, the parties returned to court at least seven times in connection with various motions for modification or enforcement of their obligations. With regard to the present appeal, defendant filed a motion in October 2011 seeking to emancipate the parties' three children and terminate his child support and alimony obligations. In January 2012, the trial court emancipated all three children. However, because plaintiff alleged that the parties' youngest child, who was twenty-two years old at that time, was attending college, the court permitted plaintiff to file a subsequent motion for reconsideration accompanied by proof of college attendance.

Thereafter, plaintiff alleged that the child was suffering from a mental disability and, therefore, should not have been emancipated. In February 2012, the court "unemancipated" the child, and ordered defendant to pay plaintiff $140 per week in child support. The court also ordered the parties to participate in mediation on the issue of alimony. Defendant appealed this order and, in February 2014, we dismissed the appeal as it related to financial mediation, and affirmed other portions of the order that are not relevant to the current matter. Chin v. Chin, No. A-5743-11 (App. Div. Feb. 20, 2014).

After the court-ordered mediation failed to resolve the dispute, the trial judge conducted a three-day plenary hearing. By the time the hearing concluded, defendant was sixty-six years old and had been retired for approximately two years. Defendant asserted his only income was the $7,751 he received each month from his share of his government pension. Pursuant to the parties' agreement that the pension was to be equitably distributed, plaintiff was entitled to $2,188.22 per month as her marital share of the pension but, for reasons that are not clear from the record, she had not yet filed the paperwork required to receive these payments.

Plaintiff, who was sixty-two years old by the end of the hearing, asserted her income was limited to the $877 per month she received in Social Security Disability ("SSD") benefits. Because of his retirement, and the fact that his income was now limited to a pension that had been subject to equitable distribution, defendant asserted that his alimony obligation should be terminated.

Defendant also argued that the parties' youngest child, now twenty-five years old, should be emancipated. In response, plaintiff submitted a February 2, 2012 letter from a psychologist, which stated that the child was unable to work due to depression. The psychologist did not testify at the plenary hearing.

Defendant asked the court to obtain a "second opinion" regarding the child's condition. The judge appointed a psychologist to evaluate the child. In an October 24, 2014 report, the expert concluded that, based on what the child told the psychologist, the child was "experiencing significant depression and anxiety," which "impair[ed] [the child's] ability to function in an occupational or academic setting." While the judge gave each of the parties a copy of the psychologist's report, the judge did not require the psychologist to testify at the plenary hearing.

At the conclusion of the hearing, the judge rendered a written opinion. With regard to alimony, the judge agreed with defendant that he had "in fact experienced a substantial change in circumstances which would justify a modification of alimony." The judge also found that, due to his retirement, defendant was now receiving $7,751 per month in pension benefits, but the judge did not take into account that the bulk of these benefits had been subject to equitable distribution.

Thus, the judge made no determination of whether these funds should be counted as income for purposes of determining alimony or whether defendant even had the ability to continue to pay alimony. Instead, the judge stated that defendant was currently paying $1,720 per month in alimony and, if plaintiff's $877 per month in SSD benefits were subtracted from this amount, "that [left] $843[] a month, which translates into $196[] per week." Based upon this calculation, the judge reduced defendant's alimony obligation from $400 per week to $196 per week, retroactive to June 16, 2014, the first day of the plenary hearing.

The judge also denied defendant's motion to emancipate the parties' child. Relying upon the written reports submitted by the child's psychologist and the court-appointed psychologist, the judge found that the child suffered from a psychological condition that prevented her from living on her own. However, without explaining how this amount was calculated, the judge reduced defendant's weekly child support obligation from $140 to $100, effective June 16, 2014. The judge also ordered plaintiff to apply for Social Security benefits for the child. This appeal followed.

On appeal, defendant raises the following contentions

POINT I - WHETHER THE JUDGE ABUSED HER DISCRETION IN NOT ACCEPTING [DEFENDANT'S] REPORTS FROM DOCTORS TO REQUEST THE COURT TO CONSIDER MY EFFECTIVE DATE OF RETIREMENT BE 2012-01-28 FOR ALIMONY MODIFICATION.

POINT 2 - WHETHER THE JUDGE ABUSED HER DISCRETION IN ACCEPTING DR. LIPTON'S REPORT WITHOUT CONSIDERING THE DISCLAIMER IN THE REPORT STATED THAT THE DIAGNOSTIC IS DEPENDENT ON VALIDATING THE FACT THAT I PHYSICALLY ABUSED MY [CHILD,] WHEN [THE CHILD] WAS YOUNG.

POINT 3 - [THE TRIAL JUDGE] FINDS THAT DEFENDANT HAS IN FACT EXPERIENCED A SUBSTANTIAL CHANGE IN CIRCUMSTANCES WHICH WOULD JUSTIFY A MODIFICATION OF ALIMONY, HOWEVER, [THE JUDGE]

A. ERRED IN APPLYING A WRONG NUMBER OF MONTHS AND DID NOT INCLUDE [PLAINTIFF'S] ENTIRE SOCIAL SECURITY BENEFITS FOR THE COMPUTATION IN THE ORDER; AND

B. ERRED IN APPLYING WRONG SUM OF MY INCOME TO PAY FOR THE NEW ALIMONY ALIMONY SHOULD BE PAID BY EARNED INCOME WHICH IS ZERO AFTER RETIREMENT.

POINT 4 - THE JUDGE ERRED IN ORDERING . . . DEFENDANT "TO DO WHATEVER IS NECESSARY TO ASSIST PLAINTIFF IN RECEIVING HER SHARE OF DEFENDANT'S RETIREMENT BENEFITS PURSUANT TO THE PARTIES' AGREEMENT AND COAP."

POINT 5 - THE JUDGE ERRED IN CONFUSING THE DIVORCE DATE WITH END DATE OF MARRIAGE.

POINT 6 - THE JUDGE ERRED IN JUST ORDERING PLAINTIFF . . . TO APPLY FOR SOCIAL SECURITY BENEFITS (PUBLIC ASSISTANCE) FOR [OUR CHILD] AND LETTING PLAINTIFF . . . FREEDOM TO VOLUNTEER ON HER OWN TO REPORT THE PROGRESS, WHILE KNOWING PLAINTIFF . . . HAS A HISTORY OF HIDING INFORMATION, AND WHILE DEFENDANT . . . HAS ALREADY INDICATED THAT [THE CHILD] HAS MEDICARE COVERAGE AND THEREFORE SHOULD HAVE OTHER SOCIAL SECURITY BENEFITS THAT WERE ALREADY APPLIED.

POINT 7 - THE JUDGE ERRED IN THE STATING OF THE SOURCES OF INCOME AND ASSETS OF EACH PARENT.

POINT 8 - REQUEST FOR CASE TO BE HEARD BY NEW JUDGE UPON REMAND.

After reviewing the record in light of these contentions, we are constrained to reverse and remand because the trial judge failed to make sufficient findings of fact supporting the decision to reduce, but not terminate, defendant's alimony and child support obligations. Rule 1:7-4(a) clearly states that a trial "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]" See Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). The failure to provide findings of fact and conclusions of law "constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)).

Turning first to the question of alimony, the judge properly determined that defendant had retired in good faith, which constituted a significant change of circumstances warranting a modification of support. Landers v. Landers, 444 N.J. Super. 315, 320 (App. Div. 2016) (noting that a "'good faith retirement' after age sixty-five is a well-recognized change of circumstances event, prompting a detailed review of the financial situation facing the parties to evaluate the impact retirement has on a preexisting alimony award"). However, the judge failed to conduct the required "detailed review" of the parties' actual financial situations. Ibid. Instead, the judge merely determined how much plaintiff was receiving in monthly SSD benefits, subtracted that figure from defendant's then-current monthly alimony obligation, and then required defendant to continue to pay plaintiff the difference.

This calculation was mistaken for several reasons. First, the judge never determined or considered the parties' current needs, defendant's obvious reduction in income following his retirement, or whether defendant even had the ability to continue to pay alimony. Most significantly, the judge failed to recognize that defendant's monthly income was limited to his pension, which had already been equitably distributed.

It is well established that "[w]hen a share of a retirement benefit [as here] is treated as an asset for purposes of equitable distribution, the trial court shall not consider income generated thereafter for purposes of determining alimony." Innes v. Innes, 117 N.J. 496, 505 (1990) (quoting N.J.S.A. 2A:34-23(b)). "Conversely, th[is] rule does not bar counting as income for determining alimony that portion of the former spouse's pension attributable to post-divorce employment, and therefore not subject to division as marital property at [the] time of divorce." Steneken v. Steneken, 367 N.J. Super. 427, 437-38 (App. Div. 2004) (citing Innes, supra, 117 N.J. at 504-06), aff d in part and modified in part, 183 N.J. 290 (2005).

In this case, the trial judge did not make any findings concerning what portion of defendant's pension, if any, should be considered as current income for purposes of determining any continued alimony obligation and which portion had already been subject to equitable distribution. In addition, the judge did not consider the fact that, because defendant had retired, plaintiff was now entitled to $2,188.22 per month in pension benefits, but had failed to apply for them. This amount exceeded the continued alimony the judge ordered defendant to pay plaintiff. Because the judge did not consider the nature of defendant's income, the monies available to plaintiff from SSD and her share of defendant's pension, and the other statutory alimony factors under N.J.S.A. 2A:34-23(b), we remand the matter to the trial court to fully address the parties' contentions and render a new decision on all issues related to alimony.

The judge also failed to make findings of fact and conclusions of law on the issue of whether the parties' child should be emancipated and the amount of defendant's child support obligation. As the judge observed, emancipation does not automatically occur by reason of a dependent child reaching the age of majority. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Thus, parental support obligations do "not terminate solely on the basis of the child's age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent." N.J.S.A. 2A:34-23(a).

Here, plaintiff alleged that the parties' twenty-five-year-old child suffered from depression, could not work or live independently, and was dependent on plaintiff for support. Therefore, plaintiff asserted that the child should not be emancipated. In accepting plaintiff's contention, however, the judge mistakenly relied upon a written report submitted by the child's treating psychologist and a report prepared by a court-appointed psychologist.

Significantly, neither expert testified at the plenary hearing and, therefore, neither was subject to cross-examination. N.J.R.E. 808 clearly states

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

Thus, "[a]n expert medical opinion contained in a report is generally inadmissible . . . because of the complexity of the analysis involved in arriving at the opinion and the consequent need for the other party to have an opportunity to cross-examine the expert." N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 130 (App. Div. 2010). "[W]hen the expert is not produced as a witness, [N.J.R.E. 808] requires the exclusion of his or her expert opinion, even if contained in a business record, unless the trial judge makes specific findings regarding trustworthiness." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174 (App. Div. 2012).

In addition, Rule 5:3-3(g) provides that, in the case of a report submitted by a court-appointed expert, the report "may be entered into evidence upon the court's own motion or on the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties." (emphasis added). Because plaintiff did not call either the child's psychologist or the court-appointed expert as a witness at the plenary hearing, and because the judge also did not arrange for the court-appointed expert to appear at the hearing for cross-examination, the judge should not have relied upon either report in determining whether to emancipate the parties' child. Therefore, we remand the matter for further consideration of the child support issue and whether the child actually "suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent" under N.J.S.A. 2A:34-23(a).

As required by N.J.S.A. 2A:34-23(a) and (b), on remand the trial court must also address the parties' current financial situations, and the other statutory factors for determining alimony and child support. Therefore, the parties should submit updated Case Information Statements for the court's review pursuant to Rule 5:5-2. The remand proceedings should be completed within 120 days. Pending the completion of the remand, and subject to a possible retroactive offset or refund thereafter should the judge modify these obligations, defendant shall continue to pay plaintiff $196 per week in alimony and $100 per week in child support as required by the April 15, 2015 order.

Reversed and remanded.1 We do not retain jurisdiction.

1 Defendant requests that the remand be handled by a different judge. We have carefully considered the record in this matter and find no evidence of bias or any other reason requiring the assignment of a different judge on remand. Therefore, we reject defendant's contention on this point. R. 2:11-3(e)(1)(E).