JACOB ROSENGARTEN v. SHERI ROSENGARTEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0688-08T10688-08T1

JACOB ROSENGARTEN,

Plaintiff-Respondent,

v.

SHERI ROSENGARTEN,

Defendant-Appellant.

 

Argued September 14, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-293-96B.

Patrick Judge, Jr., argued the cause for appellant (Archer & Greiner, attorneys; Mr. Judge and Drew A. Burach, on the brief).

Frederick J. Sikora argued the cause for respondent.

PER CURIAM

Defendant Sheri Rosengarten appeals the August 22, 2008, order denying her an increase in alimony and an award of counsel fees payable by plaintiff Jacob Rosengarten. After consideration of the arguments made and applicable legal standards, we affirm.

Some brief history is necessary before a discussion of defendant's points on appeal. The parties divorced on July 15, 1997, after nearly eighteen years of marriage. Pursuant to the Matrimonial Settlement Agreement (MSA) that was incorporated into the final judgment of divorce, plaintiff was to pay defendant $66,000 in alimony annually and one-third of his future yearly bonuses. On May 16, 2000, plaintiff obtained a court order relieving him of the obligation to pay defendant a portion of his yearly bonuses as a result of the unforeseen liquidation of a jointly-owned business asset that resulted in defendant's receipt of $500,000 after tax.

Defendant suffers from significant disabilities and is unable to work as a result. Because of defendant's disabilities, her brother, David Cohen, was acting as her conservator at the time of the divorce. On October 23, 2001, Cohen instituted guardianship proceedings claiming that defendant was totally incapacitated. Thereafter plaintiff brought an action against Cohen in New Jersey alleging that he had mismanaged or misappropriated her funds. A settlement was reached, resulting in Cohen's resignation as both guardian and trustee. Susan B. Smith, Esquire, was appointed guardian of both defendant and her estate; defendant's father became "sole trustee of the living trust."

On February 9, 2007, a Pennsylvania court determined that defendant was no longer incapacitated and terminated the appointment of counsel to act as her trustee. Defendant's monthly expenses, as set forth in a petition she filed in Pennsylvania on February 24, 2007, were $7350.54. Defendant's assets were calculated to be "approximately $900,000 and include[] a residence in Newtown, Pennsylvania, with a value of approximately $280,000."

Defendant filed an application for an increase in alimony, counsel fees, discovery, mandatory economic mediation and a plenary hearing on June 23, 2008. In support of her contention that circumstances had changed, she offered evidence documenting the disparity in the parties' lifestyles, a rise in the cost of living since the divorce and the alleged depletion of her assets. Judge Jacobson denied defendant's application on August 22, 2008. This appeal followed.

Defendant claims that the motion judge erred in concluding that she had not made the requisite prima facie showing of substantially changed circumstances. Defendant asserts that more than eight years have elapsed since the order eliminating plaintiff's obligation to share bonuses, and she further directs our attention to the "dramatic increase in the cost of living" since the date of the MSA.

Defendant also contends that she agreed to the low alimony figure when negotiating the MSA because she anticipated receiving a substantial portion of plaintiff's bonuses. Once this entitlement was taken away, defendant avers that she was forced to deplete her assets to maintain the parties' marital lifestyle. Defendant claims that the Case Information Statement (CIS) she filed at the time of the divorce did not accurately reflect the marital standard of living, "an essential component in the changed-circumstance analysis when reviewing an application for modification of alimony." Crews v. Crews, 164 N.J. 11, 25 (2000). Therefore, she argues, after her right to plaintiff's bonuses was terminated, the court improperly applied a "needs-based" standard in recalculating alimony rather than considering the couple's actual standard of living during marriage.

Defendant acknowledges that a party seeking modification of a support order "has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (citation omitted). "A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." Ibid.

An increase in support is necessary when "changed circumstances substantially impair the dependent spouse's ability to maintain the standard of living reflected in the original decree or agreement." Id. at 152-53. Therefore, "the marital standard of living is an essential component in the changed-circumstances analysis when reviewing an application for modification of alimony." Crews, supra, 164 N.J. at 25. Our standard of review is highly deferential given the "special jurisdiction and expertise" of the family court. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In her oral decision, Judge Jacobson relied upon the CIS submitted by defendant during the divorce proceedings. Noting that defendant was assisted by counsel, a guardian ad litem, and a conservator, Judge Jacobson reasonably relied upon the $7707 monthly expenses reflected in defendant's CIS.

In response to defendant's argument that the CIS did not accurately reflect the marital lifestyle, the judge explained, "[W]e need to be able to rely on the documents that are sworn and submitted to the [c]ourt. And particularly where we have had such a passage of time[,] I think it is reasonable to rely upon the original case information statement." The judge concluded that although the divorce was granted without judicial factfinding, the CIS in these circumstances was nonetheless a reliable snapshot of the parties' marital lifestyle.

Additionally, Judge Jacobson relied on the February 24, 2007 statement by defendant's Pennsylvania conservator that her monthly expenses totaled $7350.54. The trial court found that defendant received $7500 per year from Social Security, $5500 per month in alimony and returns on investments that she had made; therefore, Judge Jacobson opined that she would be able to continue enjoying the marital lifestyle despite an increase in the cost of living since the divorce. Furthermore, Judge Jacobson found that defendant's assets, including a $91,000 payment pursuant to the MSA and a $500,000 unanticipated after-tax distribution, increased in value from the date of divorce. Defendant's assets currently total approximately $826,553.17, and she has other proceedings pending in Pennsylvania from which she may realize financial benefits.

Contrary to defendant's argument, there is no per se rule regarding inflation. See Crews, supra, 164 N.J. at 32. Inflation is a change in circumstances only if it "substantially affects [the] supported spouse's ability to maintain a lifestyle comparable to the marital standard of living." Ibid.

Furthermore, alimony modifications are not intended to allow a dependent spouse "to share in the post-divorce good fortune of the supporting spouse." Id. at 29 (citations omitted). Only after the dependent spouse has made the requisite prima facie showing of changed circumstances should the supporting spouse's "'ability to pay become a factor.'" Id. at 28 (quoting Lepis v. Lepis, 83 N.J. 139, 152 (1980)). Hence, we concur with the motion judge that plaintiff's acknowledged increased earnings are irrelevant.

We note in passing that defendant's argument seems to hinge, at least in part, on the notion that the deletion of bonus payments in 2000 was an injustice. Obviously, the option to appeal that order is no longer available to defendant; this petition to increase alimony cannot be used as a substitute.

Defendant's claim that discovery, economic mediation and a plenary hearing should have been ordered must also fail. Prior to these requests being granted, there must be a prima facie showing of changed circumstances. Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998).

The award of counsel fees in matrimonial actions is discretionary. Williams v. Williams, 59 N.J. 229, 233 (1971). Prior to rendering her decision, the judge engaged in a comprehensive analysis of the applicable Rule 5:3-5(c) factors. We see no reason to disturb the denial of counsel fees based on our independent review of the record. The exercise of discretion in this instance was well within the permissible range. All of defendant's requests, with one exception not relevant to this appeal, were denied. She has the ability to pay fees from her own assets; therefore, on this point we also concur with Judge Jacobson.

Affirmed.

Some of the facts are from a March 24, 2005 Pennsylvania appellate opinion reversing a December 17, 2003 order issued by the Orphans Court of the Court of Common Pleas of Bucks County, Pennsylvania.

Judge Jacobson granted defendant $1000 in counsel fees for issues related to the prior unforeseen liquidation of assets.

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A-0688-08T1

October 27, 2009