BURMA SUBRIZE v. ROBERT SUBRIZE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2103-09T1

BURMA SUBRIZE,

Plaintiff-Respondent,

v.

ROBERT SUBRIZE,

Defendant-Appellant.

________________________________________________________________

December 20, 2010

Argued December 6, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-725-78A.

Brian D. Winters argued the cause for appellant (Keith, Winters & Wenning, attorneys; Mr. Winters and Valerie Hemhauser, on the briefs).

Allison C. Williams argued the cause for respondent (Pitman, Mindas, Grossman, Lee and Moore, P.C., attorneys; Ms. Williams, on the brief).

PER CURIAM

Defendant, Robert Subrize, appeals from the October 22, 2009 post-judgment order denying his motion to terminate his alimony and life insurance protection obligations and ordering him to pay counsel fees for his former wife, plaintiff, Burma Subrize. Defendant also appeals from the December 16, 2009 order denying his motion for reconsideration and ordering him to pay an additional $500 counsel fee in connection with that motion.

Defendant argues that the trial court erred in finding that he failed to make a prima facie showing of changed circumstances; in not ordering a plenary hearing but deciding the matter based on conflicting certifications; in failing to make sufficient findings of fact or conclusions of law pursuant to Rule 1:7-4; in failing to permit oral argument on the reconsideration motion; and in awarding counsel fees to plaintiff. We reject these arguments and affirm.

The parties were married in 1960. They had three children. Although they separated in 1969, the divorce complaint was not filed until 1978, and the divorce judgment was not entered until June 1, 1981. Both parties were represented in the divorce proceedings. The parties entered into a Property Settlement Agreement (PSA), by which defendant agreed to pay permanent alimony to plaintiff and to permanently provide life insurance for her. The PSA also provided for equitable distribution of property, child support, and other matters, which are not directly implicated in this appeal. The children have long been emancipated.

Defendant's initial recurring support obligation in the PSA was $200 per week, which included alimony and child support, with $12 per week being allocated to each child and the remainder to alimony. The PSA also obligated defendant to pay plaintiff an additional $500 per year as additional alimony. As the children became emancipated and adjustments were made, defendant's alimony obligation, prior to any of the proceedings underlying this appeal, was set at $150 per week, plus the $500 additional annual payment.

A dispute arose between the parties in 2005 regarding equitable distribution of the proceeds from the sale of the former marital home. The parties made competing demands regarding the division of those proceeds. As part of the controversy, defendant moved for modification of his alimony obligation. The matter was set down for a plenary hearing to resolve all issues related to distribution of the proceeds from the home, alimony and defendant's life insurance obligation. Both parties were represented by counsel throughout those proceedings. The parties engaged in discovery. At the time of the scheduled plenary hearing, the parties and their attorneys spent the entire day in negotiations, resulting in an agreement that was memorialized by a consent order entered on November 15, 2007.

The order provided that plaintiff would receive $150,917.08 from the marital home proceeds, and defendant would receive $82,471.06. Defendant's alimony was cut in half, from $150 per week (which equates to $650 per month) to $325 per month, until plaintiff's retirement or until September 30, 2009, whichever occurred later. The order expressly provided that the alimony payments were "fixed and permanent" and likewise ordered defendant to "continue permanently to be responsible for "a $50,000 life insurance policy on plaintiff." The order contained the following anti-Lepis1 provision:

The plaintiff agrees and stipulates that she shall not apply for, nor be entitled to, an increase in the alimony amount. The defendant agrees and stipulates that he shall not apply for, nor be entitled to, a reduction or elimination of his alimony obligation.

On September 2, 2009, as the two-year reduction period was about to expire, defendant filed his motion, seeking to eliminate his alimony and life insurance obligation. Defendant had been retired since 1991 and was living in Florida. He was receiving pension and social security benefits. He owned an investment property and had other retirement and investment assets. At that time defendant was sixty-seven years old, and plaintiff was sixty-eight years old.

In support of his motion, defendant certified that his circumstances had changed because at the time of the consent order two years earlier, his net worth was approximately $234,600, but had fallen to $198,086. He attributed the decrease to the economic decline and the devaluation in the real estate market as well his withdrawal of some funds for living expenses. Defendant also contended he had health issues, including Chronic Obstructive Pulmonary Disease (COPD) and neck and back problems. Defendant contended that his former wife's financial condition had improved over the years because she continued working and was still employed full time in 2009. Plaintiff opposed the motion. She filed a certification disputing much of the information in defendant's certification and clarifying her own financial circumstances. She also sought an allowance for counsel fees. Defendant filed a reply certification.

Judge Iadanza decided the matter on the papers and issued a comprehensive oral decision on October 22, 2009. He concluded that defendant had failed to establish a prima facie case of changed circumstances since the consent order, which was entered into after extensive discovery and negotiations and involved the same issues raised in this motion. The judge noted that the parties had made various concessions in their comprehensive negotiations two years earlier. Of course, a major concession by plaintiff was accepting a temporary fifty percent reduction in her alimony, but with the provision that it would revert to its prior level upon her retirement, when she would need the additional amount. Judge Iadanza found no basis to disturb the anti-Lepis provision. He concluded that there was no "public policy that rises to the level of the Court having to consider voiding the provision in the '07 consent order as to what was going to happen with alimony subsequent to the consent order in the short term or in the long term."

Plaintiff's counsel fee request was in excess of $2500. The judge reviewed the financial circumstances of both parties, and expressed his consideration of all factors contained in Rule 5:3-5 and Williams v. Williams, 59 N.J. 229 (1971). He concluded that plaintiff had "some ability" to pay her own attorney's fees. However, he found that the arguments advanced by defendant were not reasonable in light of "the obvious and clear language of the consent order of 2007." Considering all of these factors, he ordered defendant to contribute $1000 toward plaintiff's attorney's fees.

Defendant moved for reconsideration. He did not request oral argument in his moving papers. In a reply brief, he mentioned in the body of the brief that he wished to have oral argument. The judge declined to conduct oral argument and decided the matter on the papers. Finding nothing that had been overlooked or misconstrued, the judge denied the reconsideration motion. In addition to denying it on procedural grounds, the judge also reviewed the substantive issues and denied it substantively as well.

Agreements between divorcing spouses as to alimony are always subject to review and modification based on a showing of changed circumstances. Lepis, supra, 83 N.J. at 146-49. The party seeking modification must make a prima facie showing of changed circumstances, namely "that changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157. Only upon making such a showing is the court obligated to examine the finances of both parties and make a determination of whether the change in circumstances warrants modification of the support obligation. Ibid.

The party seeking modification has the burden of demonstrating such changed circumstances as would warrant relief from his or her obligation. When a supporting spouse brings an application for a downward modification, the focus is on the supporting spouse's ability to pay. Miller v. Miller, 160 N.J. 408, 420 (1999). Any change must be permanent to support an alimony modification. Innes v. Innes, 117 N.J. 496, 504 (1990). In determining whether a downward modification is appropriate, the court may consider the supporting spouse's income and assets. Id. at 422. As relevant here, "changed circumstances" include the alleged decreases in defendant's investment income and net worth and his asserted illness or infirmity. See Lepis, supra, 83 N.J. at 151.

Generally, consensual agreements for alimony are subject to modification to the same extent as contested decrees entered by courts. Lepis, supra, 83 N.J. at 148. Anti-Lepis provisions, which constitute waivers of the right to future modification, are enforceable in certain limited circumstances. Parties are free to enter into voluntary agreements departing from the general Lepis rule and establish "different standards by which they agree[] to be guided" in cases involving "reasonably foreseeable future circumstances." Morris v. Morris, 263 N.J. Super. 237, 241-42 (App. Div. 1993). Such agreements will be enforced unless doing so would be unjust or inequitable. Ibid. Parties may "with full knowledge of all present and reasonably foreseeable future circumstances bargain for a fixed payment . . . irrespective of circumstances that in the usual case give rise to Lepis modifications in their agreement." Id. at 241.

We find no mistaken exercise of discretion or misapplication of the law in Judge Iadanza's finding that defendant was not entitled to relief. No material changed circumstances had occurred between 2007 and 2009. Although defendant's net worth declined to some extent, the decline was principally a result of a declining economy, which existed in 2007. It was reasonably foreseeable, particularly to an individual like defendant who for the nineteen years of his retirement was accustomed to dealing in investment property, that the economy would continue to falter. There is nothing in the record to suggest any precipitous change, if any change at all, in defendant's health during the two-year interval. All in all, the parties' negotiated agreement in 2007 contained trade- offs that were broadly and fairly negotiated, with the assistance of counsel on both sides. The parties' agreement to set the alimony and life insurance obligations in permanent terms was an enforceable provision, absent some unforeseen and very substantial change in circumstances. Nothing of that sort occurred here. Enforcement of the agreement was not unjust or inequitable.

Defendant failed to establish a prima facie case of changed circumstances, particularly in light of the high threshold required by the anti-Lepis provision. He made no showing of an inability to support himself under his current financial condition, including his assets and income. There was no basis for an evidentiary hearing. See Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988) (holding that a hearing is not required, or even warranted, in every contested proceeding for alimony modification, but only in those where the supporting spouse demonstrates an inability to support himself or herself).

As to the counsel fee award, we are satisfied that the judge considered appropriate factors in making a modest award in plaintiff's favor. Such determinations are entrusted to the sound discretion of trial judges, and "will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). In light of that highly deferential standard, we have no occasion to interfere with the award made in this case.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 Lepis v. Lepis, 83 N.J. 139 (1980).