EVA JONES v. PETER DUCH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5564-05T25564-05T2

EVA JONES,

Plaintiff-Appellant,

vs.

PETER DUCH,

Defendant-Respondent.

________________________________________________________________

 

Argued October 31, 2007 - Decided

Before Judges Lisa and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-570-00.

John A. Hartman, III, argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. Hartmann, of counsel and on the brief; Nicole J. Huckerby, on the brief).

Robert B. Kornitzer argued the cause for respondent (Budd Larner, P.C., attorneys; Mr. Kornitzer, on the brief).

PER CURIAM

Plaintiff Eva Jones appeals from a May 17, 2006 Family Part post-judgment order that denied her request to convert an award of rehabilitative alimony to an award of permanent alimony, and granted the defendant's application that she pay $2,000 towards his counsel fees and costs. We affirm.

After the parties' almost thirteen-year marriage, they separated on July 31, 1999. Initially, plaintiff filed a complaint for separate maintenance, but later both parties filed actions for divorce. They successfully resolved the equitable distribution of the marital assets, custody of their two children, and their respective rights of parenting time. The remaining disputes were the subject of a bench trial.

Following the twenty-day trial, Judge Kapalko rendered a fifty-eight page written opinion on March 3, 2003. The principal issues included "the amount and duration of alimony to be awarded to plaintiff, if any, the amount of child support . . . the adjustment of pendente lite alimony retroactively, if appropriate, and the contribution of the parties to the other's counsel fees and costs." Relevant to our review is the trial court's determination regarding alimony.

Judge Kapalko analyzed the financial needs of plaintiff and calculated that "the plaintiff would require a total of $140,007 net income to meet solely her annual needs, inclusive of mortgage costs . . . ." The trial judge calculated defendant's annual needs to be $143,000. However, we determined this was a clerical error and defendant's calculated annual needs also totaled $140,007. Jones v. Duch, A-5996-04 (App. Div. Feb. 8, 2005) (slip op. at 4).

Prior to trial plaintiff, who is a medical doctor specializing in obstetrics and gynecology, was "earning in excess of $213,000 in net business income[,] before taxes[,] through her practice." The trial judge reviewed plaintiff's business gross receipts and the reported profit for the years 1997 to 2001. The documents evidenced that the gross receipts reported in 2000 had increased from the level realized in 1999. The trial judge labeled 1999 as the "high-water mark year," of plaintiff's earnings. In contrast, he labeled 2001 as "an aberrant year." The gross business income for 2001 was $481,575, from which plaintiff received $143,000 gross or $110,000 net, along with $23,592 from other perquisites from employment. The court stated that "the transient medical problems of the plaintiff were the primary cause of this downturn [in 2001] and are not likely to be repeated or to continue for the long term."

Defendant, too, is a medical doctor specializing in cardiology. Prior to trial, defendant had commenced a new business association after being terminated from a prior position. As a result, the court estimated defendant's annual gross income, including perquisites of employment, to be $240,000.

In his analysis, Judge Kapalko also weighed the impact on plaintiff's earning ability following a spiral fracture of her leg, suffered when she slipped on ice in January 2001. For a little more than two months, she worked with her leg in a cast, confined to a wheelchair. It was later discovered that plaintiff had "three compressed nerves and a damaged tendon," which were surgically repaired on June 19, 2002. Plaintiff's injury and her subsequent recovery affected her ability to accept new patients. Consequently, her business income declined.

Based on his findings that the parties were "capable of generating sufficient income to meet their respective long term needs without the assistance of permanent alimony," Judge Kapalko concluded: "permanent alimony under the criteria of 'need' and 'the ability to pay' [was] not warranted." After assessing the remaining statutory factors found in N.J.S.A. 2A:34-23, he found that "for the very short term there will [be] disparity in income between the parties." The trial court reasoned that plaintiff's income would remain depressed during the approximately one-year period of recovery from her injury. Using that time-frame, Judge Kapalko fixed the period of rehabilitative alimony. He ordered defendant to pay plaintiff $535 per month, nontaxable rehabilitative alimony for twelve months. Defendant began the payments on November 1, 2002, and they ended on October 31, 2003.

Plaintiff states she filed a motion to convert the rehabilitative alimony award to a permanent award in 2003. Because plaintiff's appeal was pending, a different motion judge declined to consider the application because the trial court lacked jurisdiction. We affirmed the trial court's decision in all respects in an unreported opinion.

Plaintiff again moved to convert "the award of rehabilitative alimony to an award of permanent alimony" and other relief in April 2006. In her supporting certification, plaintiff explained that despite her "best efforts, [her] business has not rehabilitated as expected by the court" and she was unable to meet her monthly expenses and maintain the marital standard of living. Plaintiff separately filed a Case Information Statement (CIS) and attached her 2003 and 2004 individual income tax returns, which recorded gross business receipts as $544,697 and $513,861, respectively. She did not have the final 2005 information from her medical practice, but stated her 2005 gross business income had dipped to $284,927, resulting in her individual gross income of $102,000. Plaintiff attributed the decrease in her business income to the regional drop in the number of births and the increase in malpractice premiums.

Defendant filed a cross-motion. He sought to deny plaintiff's requests and to grant him an award of counsel fees regarding his repeated enforcement application and to address plaintiff's application, which he asserted was filed in bad faith.

After oral argument, held on May 12, 2006, Judge Peer issued an order that denied plaintiff's request to convert the rehabilitative alimony award to permanent alimony, but granted most of her other requests unrelated to the issue on appeal. Plaintiff's request for counsel fees and costs was denied. Defendant's request to enforce prior orders requiring plaintiff to pay the retainer to the expert charged with division of the parties' retirement assets was granted, along with a $2,000 award of counsel fees and costs.

In his statement of reasons placed on the record on July 11, 2006, Judge Peer noted plaintiff did not file her application when she received the denial of her appeal, but waited another fourteen months. He expressed the basis of the rehabilitative alimony award was the need for plaintiff to recover from her surgery and plaintiff's assertion of decreased business income was not related to her previously impeded mobility caused by the leg injury. There was no evidence that contradicted the conclusion that the injury fully and properly healed, posing no impediment to plaintiff's productivity. The judge further commented that plaintiff made only "vague allegations" and provided no evidence to support her claims of a geographic downturn in births causing a corresponding decline in her income.

Prior to addressing plaintiff's arguments, we believe it is instructive to clarify certain nuances of appellate procedure. Plaintiff, in part, defends the delay in the presentation of her changed circumstances application by noting the Family Part lost jurisdiction once she filed her appeal. As provided in Rule 2:9-1(a)

the supervision and control of the proceedings on appeal . . . shall be in the appellate court from the time the appeal is taken . . . . The trial court, however, shall have continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10 and as otherwise provided.

See Neger v. Neger, 93 N.J. 15, 38 n.11 (1983) (Chancery Division orders entered after the plaintiff filed her appeal are of no effect); Rolnick v. Rolnick, 262 N.J. Super. 343, 365 (App. Div. 1993) (once an appeal is taken, trial court is divested of jurisdiction except as reserved by statute or rule).

As a practical matter, once a party elects appellate review, it is essential that jurisdiction rest in this court until full examination of the final trial court determination. The obvious purpose of the Rule is to protect the subject matter of the appeal from adverse action by a trial court until the appeal has been decided. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 391 (1995). In this way, we set clearly the course of the parties' respective rights and remedies.

Nevertheless, limitations placed on a trial court's jurisdiction to address a matter after a party seeks appellate review would not deprive a party in need of necessary relief from obtaining appropriate redress. Rule 2:9-1(a) itself states that "[t]he appellate court may at any time entertain a motion for directions to the court . . . below or to modify . . . any order made by . . . any judge below." A party should file a motion with this court, to seek a limited remand to grant the trial court jurisdiction to decide the issue of changed circumstances. See R. 2:8-1 (procedures to file appellate motions).

Turning to the merits of this appeal, we recognize that "[t]he scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. If evidence is lacking to sustain the court's finding, it is only then that the findings must be set aside. When reviewing questions of law, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, supra, 140 N.J. at 378.

Plaintiff argues her inability to reach the level of self-sufficiency anticipated by the trial court at the time of divorce reflects a change in financial circumstances that warrants a modification of alimony to enable her to maintain the marital standard of living. Milner v. Milner, 288 N.J. Super. 209, 216 (App. Div. 1996). Despite the delay of almost three years following defendant's last payment, plaintiff maintains her application was timely. She also asserts the motion judge should have held a plenary hearing.

Defendant argues that the impetus for the rehabilitative alimony award was plaintiff's temporary physical disability. "Since the purpose and terms of rehabilitation were satisfied, there is no foundation on which to build a new application for alimony." Defendant argues plaintiff's application was untimely and that she should have requested modification prior to the conclusion of the alimony payments.

"[T]he concept of rehabilitative alimony [provides] a short-term or lump-sum award from one party in a divorce [to] enable his former spouse to complete the preparation necessary for economic self-sufficiency." Hill v. Hill, 91 N.J. 506, 509 (1982); Cox v. Cox, 335 N.J. Super. 465, 474-75 (App. Div. 2000). Rehabilitative alimony is "payable for a terminable period of time when it is reasonably anticipated that a spouse will no longer need support." McGee v. McGee, 277 N.J. Super. 1, 14 (App. Div. 1994) (quoting Dotsko v. Dotsko, 244 N.J. Super. 668, 677 (App. Div. 1990)).

The law permits the modification of a rehabilitative alimony award "based upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award." N.J.S.A. 2A:34-23(d).

[T]o be entitled to a hearing on whether a previously-approved support award should be modified, the party moving for the modification "bears the burden of making a prima facie showing of changed circumstances." Miller [v. Miller, 160 N.J. 408,] 420 . . . (citing Lepis, supra, 83 N.J. at 157 . . .). Specifically, the party seeking modification of an alimony award "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157 . . . .

[Crews v. Crews, 164 N.J. 11, 28 (2000).]

"[I]f events subsequent to the divorce show that it is no longer reasonable to anticipate that the supported spouse will ever become economically self-sufficient, the alimony award should be converted from rehabilitative to permanent." Milner, supra, 288 N.J. Super. at 216; See Carter v. Carter, 318 N.J. Super. 34, 45 (App. Div. 1999) (former spouse unsuccessful in obtaining employment to achieve economic self-sufficiency as anticipated at divorce, may file motion for continuation of alimony based on changed circumstance).

We reject defendant's challenge to the timeliness of plaintiff's application. Although the passage of time between the date rehabilitative alimony ends and the date of plaintiff's motion seeking permanent alimony may be considered when evaluating the application, nothing in the statute specifically limits a spouse's right to seek permanent alimony. We concluded in Carter that the fulfillment of an obligation to pay rehabilitative alimony does not per se prohibit a former spouse from thereafter seeking permanent alimony based upon a change of circumstances. Id. at 50.

Although not expressly stated, the principal basis for the denial of plaintiff's application was because she failed to sustain her burden of persuasion that she endured a permanent change in her financial circumstances to warrant a modification of support. See Lepis v. Lepis, 83 N.J. 139, 145-46 (1980). The trial court analyzed the parties' financial history during the last five years of the marriage and concluded plaintiff was not a financially dependent spouse, except for the year of her leg injury. Her income was comparable to that of defendant. In the two years immediately following the divorce, 2003 and 2004, plaintiff's reported net income exceeded the level of her annual needs as fixed by the trial court. In 2005, from preliminary financial information, plaintiff reported a precipitous slump in business income, which was unsupported by documentation and explained only by the broad generalization that fewer births occurred geographically.

A motion court should "rightfully [take] a hard look at applications to modify previously-entered support awards out of concern for promoting the fairness and finality of . . . awards for support entered by the trial court." Crews, supra, 164 N.J. at 27-28. The Court has "consistently rejected requests for modification based on circumstances which are only temporary." Lepis, supra, 83 N.J. at 151. Plaintiff's unsubstantiated certification is insufficient to sustain her claim of economic dependence. We conclude that the record supports the motion judge's finding that plaintiff failed to show changed circumstances.

Plaintiff additionally argues that the motion judge abused his discretion in awarding defendant attorneys fees. We disagree. The motion judge stated the fee award related to the defendant's repeated attempt to obtain plaintiff's compliance with prior orders. Authority to enter an award of attorneys fees in an enforcement application is found in Rule 1:10-3. The Rule states in pertinent part: "The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule." A fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000). We conclude no abuse of discretion is presented.

Affirmed.
 

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A-5564-05T2

December 20, 2007