ROBERT L. WHEELER v. ELLEN A. WHEELER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4046-09T1

ROBERT L. WHEELER,

Plaintiff-Appellant,

v.

ELLEN A. WHEELER,

Defendant-Respondent.

_____________________________________________

April 1, 2011

Argued January 3, 2011 Decided

Before Judges Rodr guez, Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1900-03G.

Robert L. Wheeler, appellant, argued the cause pro se.

Howard R. Rabin argued the cause for respondent.

PER CURIAM

Robert L. Wheeler appeals from a March 19, 2010, Family Part order in favor of his ex-wife Ellen A. Wheeler. The order denied Robert's motion requesting reconsideration of Judge Deborah J. Venezia's prior order denying reconsideration of the denial of a motion to modify his support obligation. The order also denied Robert's motion to recuse Judge Venezia.

In a separate opinion decided today, we rejected Robert's appeal regarding the denial of prior motions dealing with some of the same issues, i.e., the termination of his alimony and life insurance obligations based on changed circumstances.1 Because the same parties are involved, we detail only the facts that are relevant to this appeal.

In January of 2009, Ellen moved for the fourth time since 2006 to enforce alimony; collect arrears; and compel Robert to obtain the $250,000 life insurance policy previously ordered. Responding in the same manner as he had for the prior three motions, Robert cross-moved to reduce or eliminate his obligations.

On January 23, 2009, Judge Venezia granted Ellen s motion and found that Robert failed to establish a prima facie case of changed circumstances." Robert moved for reconsideration, alleging that Ellen committed constructive fraud by seeking to enforce alimony arrears that she had actually received. The judge denied Robert s motion and granted Ellen counsel fees.

Judge Venezia denied Robert s subsequent motion for reconsideration on June 12, 2009. Undaunted, Robert again moved for reconsideration.

By the judge s December 3, 2009 decision on this motion, Robert was over $14,000 in arrears. Judge Venezia denied the motion, explaining that [w]ith [each] successive application, [Robert] has supplied additional financial information that was lacking in the prior motions. Robert's most recent Case Information Statement (CIS) reflected a 2008 income of $111,000, five-times greater than the $20,000 of 2008 income which he reported in his initial CIS. Further, Judge Venezia found that Robert s economic condition was merely temporary. The judge also denied Robert's motion concerning Ellen's alleged constructive fraud claim.

Regarding the motion for recusal, even if the judge "had some independent recollection, of Robert appearing before her in an earlier criminal action, he has been before this court with several applications over the course of the past year and never brought same to the court s attention. Thus, the request was untimely. Without any other allegations of gender or race bias or even a transcript of that earlier proceeding, Robert s dissatisfaction with the Court s rulings [was] not a basis on which the Court would recuse itself.

Judge Venezia denied another motion for reconsideration on March 19, 2010. This appeal challenges that decision.

On appeal, Robert contends that the judge: (1) erred in rejecting his request to modify his alimony obligations; (2) improperly denied relief for Ellen's alleged constructive fraud; and (3) erred in determining that Robert should not be permitted to reduce his life insurance. Having addressed these contentions before in Robert's prior appeal, we reject them here again for the same reasons.

Robert argues that the judge erred in failing to recognize the reduction of his income from its 2004 level in denying his motion to reduce or eliminate his alimony obligation. The judge found that Robert had purposely withheld information and that his latest and most accurate CIS demonstrated an income surplus sufficient to meet his alimony obligation. Reduction was also inappropriate because the alimony was intended to compensate Ellen for Robert s willful depletion of marital assets.

New Jersey Family Part judges have considerable expertise in matrimonial actions. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Accordingly, reversal is only appropriate where an alimony award is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence or the result of whim or caprice. Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999). We review to determine whether the trial court could reasonably have reached its result from the evidence presented, and [whether] the award is . . . distorted by legal or factual mistake. LaSala v. LaSala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).

A judge may modify an alimony award where the party obligated to pay can demonstrate a prima facie case of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 149 (1980); Crews v. Crews, 164 N.J. 11, 28 (2000). One of the events that may constitute changed circumstances is the loss of employment or income. See, e.g., Innes v. Innes, 117 N.J. 496, 504 (1990); Lepis, supra, 83 N.J. at 151. The loss of income, however, must be permanent. Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006). Temporary unemployment will not justify reducing an alimony obligation where the supporting spouse has a salary history and the ability to find employment which will yield an income sufficient to fulfill their obligations. Gertcher v. Gertcher, 262 N.J. Super. 176, 177 (Ch. Div. 1992).

In Harris v. Harris, 235 N.J. Super. 434, 437 (Ch. Div. 1989), overruled on other grounds, Ohlhoff v. Ohlhoff, 246 N.J. Super. 1 (App. Div. 1991), the defendant was found to have an annual income of $50,000 for the purpose of awarding alimony. Despite the fact that the defendant's income had been reduced to $3,500, an adjustment was improper without additional proof of a diminished capacity to earn. Harris, supra, 235 N.J. Super. at 440. Instead, it appeared that the defendant had purposely failed to obtain employment, choosing to rely economically on his new fiancé. Id. at 441.

On another occasion, we similarly refused to disturb an award of alimony based on a doctor s $110,000 salary, notwithstanding the fact that the doctor had, in good faith, decided to leave private practice to work at a hospital for $17,000. Lynn v. Lynn, 165 N.J. Super. 328, 340-42 (App. Div.), certif. denied, 81 N.J. 52 (1979). The reduction was improper because the doctor retained the ability to earn a higher salary. Ibid. Therefore, temporary loss of income alone is not prima facie evidence of changed circumstances.

While the home-building industry is in dire straits, the judge found that Robert s economic condition was temporary and that he was still able to meet his obligations. Moreover, Robert's income has not declined drastically. His updated CIS reflects a $111,000 gross income for 2008. The fact that Robert owed more than $14,750 in December 2009 despite income in excess of $100,000 only underscores his bad faith.

Assuming arguendo the legitimacy of Robert s purported lower income, his monthly expenses still yield a $265 per week surplus sufficient to meet his $250 per week obligation. Indeed, Robert's expenses are significantly ameliorated by the fact that his new wife owns her own home and the lower costs of living in North Carolina rather than New Jersey. Robert's income is also likely to increase. On November 8, 2009, Robert s employer believed that Robert s annual income would grow to $60,000.2 Therefore, the record supports the judge's determination that Robert had not demonstrated changed circumstances.

Robert also argues that the judge improperly denied his motion seeking relief for Ellen's alleged constructive fraud in attempting to enforce alimony payments based on a faulty audit. The judge denied Robert's motion because the parties entered an earlier consent order to resolve that dispute.

Where credible evidence in the record supports a judge s findings, an appellate court should defer to those findings. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). An alleged error in the discernment of law or its application to the facts of a case is owed no such deference. See Manalapan Realty, L.P. v. Twp. of Manalapan, 140 N.J. 366, 378 (1995).

The consent order Robert and Ellen executed provides in the relevant part:

[T]his Consent Order constitutes a resolution of the dispute regarding alleged alimony arrears attributable to the period from August 1, 2006, to October 1, 2008, and the Parties agree this Consent Order shall not be construed as a modification or retraction of the positions of the Parties with respect to the alleged Alimony arrears attributable to the period from August 1, 2006 to October 1, 2008.

This order clearly demonstrates that the parties agreed to resolve their dispute without admitting or denying any liability. Robert may not now seek relief on a dispute which he voluntarily and knowingly settled.

Robert further contends that he should only be required to maintain life insurance sufficient to cover one-half of the children s college loans. We disagree.

The parties agreed to submit to binding arbitration all economic issues. The judgment of divorce incorporated the arbitrator's decision. In his decision, the arbitrator explained that:

[Ellen] is entitled under New Jersey law to a sufficient amount of life insurance, upon plaintiff s life, so as to protect the future payment of the alimony set forth heretofore. Accordingly, . . . [Robert must] maintain at least $250,000.00 in life insurance . . . naming [Ellen] as sole beneficiary for so long as he has an alimony obligation . . . .

It is clear that Robert s life insurance secures future payment of alimony. Notably, Robert presently owes more than $14,000 in alimony arrears, making this obligation even more important. A downward modification of this obligation is inappropriate for the same reasons we expressed concerning his alimony obligation.

Robert also contends that the judge erred by refusing to recuse herself despite having presided over a criminal case in which Robert was a defendant. As evidence of the judge's bias, he cites alleged violations of procedural rules as well as the denials of his motions for reconsideration where the judge hid[] behind her personal determination that she had not acted in an arbitrary, capricious or unreasonable manner. Because frustration with the judge s rulings will not justify recusal, we reject this argument.

A motion for recusal is entrusted to the sound discretion of the trial judge whose recusal is sought. Panitch, supra, 339 N.J. Super. at 66. Where a judge applies the correct legal standard, we should only reverse where the decision constitutes a manifest error or injustice. State v. Torres, 183 N.J. 554, 572 (2005).

Recusal is appropriate when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so. R. 1:12-1(f). The inquiry on such a motion is whether a reasonably, fully informed person [would] have doubts about the judge s impartiality? DeNike v. Cupo, 196 N.J. 502, 517 (2008).

Here, Robert has not met his burden of demonstrating facts sufficient to raise doubts about the judge s impartiality. He argues that the judge presided over a prior matter in which he was a criminal defendant. First, there is no case law that supports the contention that a judge may not preside over a family matter after having presided over a criminal matter involving the same party. Further, the judge had no recollection of Robert having appeared before her, and Robert did not offer any contrary evidence. Consequently, the judge did not abuse her discretion.

A

1 Wheeler v. Wheeler, No A-4703-08T1 (App. Div. April 1, 2011).

2 Robert had submitted a CIS on an earlier Lepis motion, indicating that his 2008 income was $55,395.95. In his initial CIS, Robert claimed $20,000 income in 2008.