ADRIENNE M. LIBERMAN v. MARTIN LIBERMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6243-05T36243-05T3

ADRIENNE M. LIBERMAN,

Plaintiff-Appellant,

v.

MARTIN LIBERMAN,

Defendant-Respondent.

__________________________________

 

Submitted October 1, 2007 Decided

Before Judges Lintner and Alvarez

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-1273-96.

Greenbaum, Rowe, Smith & Davis, attorneys for appellant (Mark H. Sobel, of counsel and on the brief; Cipora Winters and Jeanette Tanner, on the brief).

Einhorn, Harris, Ascher, Barbarito, Frost & Ironson, attorneys for respondent (Stephen P. Haller, of counsel and on the brief; Jennie L. Osborne, on the brief).

PER CURIAM

Plaintiff Adrienne M. Liberman appeals from an order denying an increase in alimony payable by defendant, Martin Liberman. The order was entered without benefit of oral argument, which both parties requested. The motion court found no prima facie case of changed circumstances was established in plaintiff's moving papers as required by Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 164 N.J. 11 (2000). As no prima facie case of changed circumstances was established, no plenary hearing was conducted. We reverse and remand for further proceedings.

When the Libermans divorced on August 9, 1999, they entered into a property settlement agreement requiring defendant pay alimony of $40,000 annually. The agreement did not identify a baseline marital standard of living. Not suprisingly, the parties now have very different recollections about their past marital standard of living.

The property settlement agreement imputed $20,000 in yearly wages to plaintiff. In her moving papers, she claims she has never been able to secure full-time employment, suffers from recurring health issues she cannot afford to treat, and currently earns only approximately $8,000 a year. In contrast, defendant has enjoyed a substantial increase in his annual earnings, from $160,000 to $250,000.

Defendant contends the motion was filed as the result of animosity sparked by plaintiff's fleeting encounter with his present wife. He alleges that plaintiff's earnings and alimony actually exceed her expenses, and that in any event, his increased income is significantly reduced by his substantial contribution to the parties' son's medical school expenses.

Rule 5:5-4(a) states that "in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions." The rule has been interpreted to mean that oral argument is mandated "when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (citing Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997)). By refusing to conduct oral argument the motion court deprived the parties of the "opportunity to present their case fully." Ibid. Denial of this request was an abuse of discretion not in accord with the spirit or the letter of the rule. See ibid., R. 5:5-4(a).

Furthermore, in this case a plenary hearing is necessary in order to fairly and fully resolve the question of whether an actual change in circumstances has occurred. A plenary hearing is required when there are "contested issues of material fact on the basis of conflicting affidavits." Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (citing Conforti v. Guliadis, 245 N.J. Super. 561, 565 (1991)). On a modification application, a plenary hearing may only be granted if a "'prima facie showing of changed circumstances'" is established. Crews, supra, 164 N.J. at 28 (quoting Miller v. Miller, 160 N.J. 408, 420 (1999)). But here, no prima facie showing could have been made without a plenary hearing as there was no agreed-upon marital standard of living. Just as in Crews, "[t]his case must be remanded to the trial court for a specific finding of the standard of living established during the [parties'] marriage. Once that finding is made, then the motion to modify may be properly considered." Id. at 35.

Without a finding or a stipulation as to the marital standard of living, "we have no assurance that either the initial alimony award or the subsequent motion to modify alimony was judged in accordance with the proper standard." Id. at 17. The marital standard of living is "the touchstone . . . for adjudicating later motions for modification of the alimony award when 'changed circumstances' are asserted." Id. at 16. "Identifying the marital standard of living at the time of the original divorce decree, regardless of whether a maintenance order is entered by the court or a consensual agreement is reached" is "critical . . . to any subsequent assessment of changed circumstances." Id. at 25. Respondent suggests that the documents related to the divorce settlement establish the marital lifestyle sufficiently. Not so. The documents in defendants' possession are not sufficient to accurately determine the marital standard of living in the absence of testimony and without the opportunity to present additional documents. See id. at 27.

We reverse and remand for reconsideration of plaintiff's motion in light of Crews and Lepis. We recognize that plaintiff is not entitled to modification based solely on defendant's post-divorce increased earnings, and that is not the basis for our remand. On remand, the motion judge shall allow such additional evidence as may be relevant to determine the marital standard of living, and whether the parties' circumstances have indeed changed. Only then can plaintiff's modification request be fairly considered.

Reversed and remanded for further proceedings consistent herewith.

 

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A-6243-05T3

November 8, 2007