MARK T. SWEENEY v. AIME L. SWEENEY, a/k/a AMY L. SWEENEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4624-05T14624-05T1

MARK T. SWEENEY,

Plaintiff-Appellant,

v.

AIME L. SWEENEY, a/k/a

AMY L. SWEENEY,

Defendant-Respondent.

_____________________________________________________

 

Submitted June 12, 2007 - Decided July 23, 2007

Before Judges Stern and Coburn.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, Docket No. FM-13-270-04C.

Daniel E. Straffi, Jr., attorney for appellant.

Chamlin, Rosen, Uliano & Witherington, attorneys

for respondent (Laura S. Witherington, of counsel

and on the brief).

PER CURIAM

Plaintiff, former husband, appeals from portions of an order of the Family Part entered on April 4, 2006, which denied his "request for termination of his alimony obligation retroactive to a date prior to [the] filing date" of his motion to terminate his alimony obligation, Da 5, and ordered him to "pay the sum of $1,200.00 to defendant's attorney, representing a contribution towards defendant's counsel fees and costs" with respect to the application. In essence, the plaintiff asserts that the trial judge failed "to make appropriate findings of fact with regard to the [income of defendant's] cohabitant" and improperly exercised his "judicial discretion as it relates to [his] decision to impose attorneys fees against Plaintiff and deny retroactive termination of alimony."

On or about February 27, 2006, plaintiff filed his second motion to terminate alimony. Defendant filed a cross-motion to enforce litigant's rights. The motion was premised on the wife's new employment and paragraph 9 of the parties' property settlement agreement (PSA), dated June 11, 2004, which provides:

Commencing on the first Friday following the closing in relation to the sale of the former marital residence, Husband shall pay limited duration alimony to Wife in the amount of $110.00 per week, for a period of four (4) years. Husband's alimony obligation shall terminate prior to four years from the date of the closing in relation to the sale of the former marital residence upon the first happening of any one of the following events:

Wife's remarriage

Wife's death

Husband's death

Wife's cohabitation with an unrelated male may result in modification or termination of Husband's alimony obligation in accordance with the cases of Garlinger, Gayet and their progeny. Husband's alimony obligation shall be paid via a wage execution through the appropriate probation department.

After argument on March 31, 2006, the motion judge stated, among other things, the following relevant to this appeal:

The[] cases such as this of course are difficult in that there are time frames. The attorneys certainly did their homework in the matter involving getting the cases before the Court, getting the documents before the Court. Of course there are proofs that could be obtained with a plenary hearing but the Court doesn't believe that there are substantial issues of fact that would, and neither of you sought a plenary hearing to have a trial in the matter.

The Court will retroactively terminate the husband's spousal support obligation as of the date of filing, which I believe was February 27th 2006.

I could go through a recitation of the cases, the Court's analysis of the cohabitation aspects, the higher salaried job, the reliance on Mr. Antonides' [the paramour's] income but the Court has reviewed that and if there would be a motion for reconsideration of an appeal I would certainly amplify the record because the case writeup goes on and on.

There was an obligation of both parties to notify both the obligor and obligee to notify Probation as to any changes. Perhaps they have been made, perhaps not, but that the issues that -- the child support will also be modified as of that date.

In conformity with that ruling, on April 4, 2006, the motion judge entered an order on the plaintiff's motion and defendant's cross-motion. Alimony was terminated effective February 27, 2006, and child support was increased effective the same day.

After a conference with Judge Michael Patrick King of our Civil Appeals Settlement Program, the motion judge was ordered "to file finding and conclusions consistent with R. 1:7-4," and the matter was remanded for that purpose. Thereafter, on September 7, 2006, the motion judge rendered a lengthy oral opinion in which he concluded the following with respect to alimony, the subject in contest on the appeal:

The wife states multiple times in her certification that she consents to a prospective termination of husband's alimony obligation concurrent with her current employment becoming permanent in August 2006. It would appear from the parties' CIS forms and attachments that for 2006 [the] wife will actually be earning more than the husband, with the wife grossing $1458.34 per week and husband grossing $1,160.80 per week, plus overtime as he appears to earn it nearly every paycheck. This is continued on wife's position with the Borough of Interlaken becoming permanent in August 2006.

The wife says that the husband's alimony obligation should not be terminated till her position becomes permanent. Off the record.

However, I think that the wife has been earning more than husband since August 2005 when she began her new job. Although neither party provided this Court with the prior CIS indicating the lifestyle maintained during the marriage and upon which wife's alimony obligation was based, it seems reasonably safe to assume that the wife's income has drastically increased, even surpassing husband's income at this time.

Based upon the information provided, the Court will be terminating the husband's alimony obligation to the wife effective August 1, 2005, when wife obtained her current employment. This would appear -- off the record.

It would appear to penalize the wife for bettering her situation following a divorce, which the Court finds not to be equitable. And the alimony award, the Court orders, will be terminated in August 2006 when her current employment becomes permanent.

The Court finds that the equitable decision is to permit the wife to continue receiving alimony until August 1st, 2006. Off the record.

To our knowledge, neither of the orders of April 4, 2006 have been amended. As a result, it appears that the motion judge has given three dates for the termination of alimony. If, as the parties and we believe, the final date selected is August 1, 2006, the orders and notice of appeal should have been amended. Nevertheless, there are inadequate reasons given for employment of that date, although the judge thoroughly discussed the cohabitation issue and rejected termination on that basis.

While less than $7,000 is at stake in terms of the dispute as to the termination date, between August 1, 2005 and August 1, 2006, we simply cannot allow the matter to remain as provided in the actual orders under review, particularly in the absence of a more complete record on which to exercise original jurisdiction. Accordingly, we must remand for further proceedings. In so doing, we note that defendant does not cite support for the proposition that the first or probationary year of a government appointment should be treated as "temporary" employment. We further note that the child support was increased effective February 27, 2006, and the dates of such increase and the termination of alimony presumably should be consistent. And note N.J.S.A. 2A:17-56.23a, regarding the non-retroactivity of child support modifications.

Paragraph 47 of the PSA provides:

Should either Wife or Husband willfully fail to abide by the terms of this Agreement, the defaulting party will indemnify the other for all reasonable expenses and costs including attorneys fees incurred in successfully enforcing this Agreement.

In the event of any dispute arising out of this Agreement or the performance thereof, Wife and Husband agree that good-faith attempts shall be made between them to settle the dispute by agreement before using the Courts for any determination.

Particularly in light thereof, we cannot find that the trial judge abused his discretion in awarding counsel fees on the application for the reasons he gave on September 7, 2006. See, e.g., R. 5:3-5; Williams v. Williams, 59 N.J. 229 (1971). However, we leave final resolution of the counsel fee issue to the trial judge if the parties cannot themselves settle.

 
We remand for further proceedings consistent with this opinion. No counsel fees shall be awarded on this appeal.

The order was prepared by defense counsel on defendant's cross-motion.

The motion is not in the record. Plaintiff's certification in support of the motion, dated February 23, 2006, is in the record. The filing date is unclear, but the parties do not dispute the filing date because a companion order prepared by plaintiff's attorney terminates "plaintiff's spousal support obligation retroactive to February 27, 2006," and the order under review increases child support "[e]ffective February 27, 2006."

There was a prior motion to terminate alimony which was denied on March 4, 2005. However, despite defendant's argument that the second motion was "barred by the doctrine of res judicata," only the defendant's certification in opposition to the motion and in support of her cross-motion - not the motion or cross-motion - are in the record.

The judge's opinion properly rejects the res judicata argument. In addition to concluding that the wife and her paramour "are probably not providing each other with sufficient financial support under the case law to result in termination of husband's alimony obligation," the judge noted that "[t]he biggest difference now is that both parties have supplied current Case Information Statements." We have not been provided with the exhibits and all papers, including exhibits, from the 2005 papers, and defendant as proponent of the use of the issue preclusion did not demonstrate that the doctrine applied.

(continued)

(continued)

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A-4624-05T1

July 23, 2007