GAIL M. EBERHARD v. EDWARD A. EBERHARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0405-11T1

GAIL M. EBERHARD,

Plaintiff-Respondent,

v.

EDWARD A. EBERHARD,

Defendant-Appellant.

_______________________________

November 2, 2012

 

Submitted September 25, 2012 - Decided

 

Before Judges Lihotz and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1186-04.

 

Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys for appellant (Jennifer Fortunato, on the brief).

 

Respondent has not filed a brief.

 

PER CURIAM

Defendant Edward A. Eberhard appeals from three Family Part orders dated May 6, May 17, and August 18, 2011, which respectively awarded an increase in alimony at the request of plaintiff Gail M. Eberhard, granted her request for counsel fees and costs incurred in filing the motion, and denied defendant's motion for reconsideration. Defendant argues the determinations are unsupported by the credible evidence in the record. We agree and reverse in part.

After fourteen years of marriage, plaintiff filed a complaint for divorce. The parties amicably resolved the collateral issues incident to the dissolution of their marriage, which they set forth in a comprehensive matrimonial settlement agreement (MSA) dated June 22, 2005. The MSA was incorporated into a final judgment of divorce (FJOD), entered the same day.

Among the terms contained in the MSA was defendant's agreement to pay plaintiff alimony in the amount of $710 per week. The award was based upon defendant's annual earnings of $112,528 and no income earned or imputed to plaintiff because she anticipated undergoing spinal surgery. Plaintiff acknowledged her "obligation to assist in her recovery, her application to school, and her attempt to be[come] gainfully employed." The parties also recognized uncertainties attached to the surgery and plaintiff's recovery. Consequently, they agreed the alimony award would be reviewable after July 1, 2008.

In 2009, the parties filed cross applications to review several issues, including alimony. Following submission of their respective pleadings, the parties settled certain disputes related to the sale of the former marital home, their child's emancipation, and the payment of obligations due one another. The parties also agreed they would defer final determination of the remaining issues, including modification of alimony, pending the exchange of discovery.

On March 15, 2011, plaintiff filed a second post-judgment motion seeking enforcement and included a request for a twenty percent increase in alimony. Plaintiff maintained she was unable to pursue her education as anticipated in the FJOD and was totally disabled and completely dependent on alimony for support. She stated her expenses totaled $61,092 per year and cited the 13.23 percent increase in the consumer price index from entry of the FJOD in 2005 until the date of her motion, as support for an increase.

Defendant filed a cross-motion. He requested the court deny plaintiff's motion and reduce the amount of alimony he was ordered to pay. Defendant argued plaintiff's needs had decreased by $24,456 per year since the entry of the FJOD because she no longer incurred support for the parties' child who had been emancipated and the former marital home had been sold. Further, he believed several claimed expenses were inaccurate or exaggerated, believing plaintiff's realistic budget was no more than $4066 per month. For example, defendant challenged plaintiff's claimed rental expense asserting the New Jersey address she used was her mother's and otherwise plaintiff stayed with her boyfriend at his Florida residence. He also challenged the listed personal expenses for items like clothing, alcohol and tobacco, vacations, and gifts.

In his pleadings, defendant addressed his income, noting his salary from full-time employment remained virtually unchanged since 2005. He acknowledged after the divorce he obtained a part-time job to "make ends meet," pay marital debts and their child's college costs, explaining he anticipated $8000 gross annual income from this job.1 Both parties requested the other contribute to attorney's fees and costs incurred to file the motion and cross-motion.

On May 6, 2011, without benefit of oral argument, the court entered an order granting several requests presented by plaintiff, including a modification of alimony, which increased defendant's obligation to $850 per week and awarded plaintiff $7500 in counsel fees. Defendant's motion for a reduction in alimony was denied in a separate order. A statement attached to the orders incorrectly states "[t]his is a long[-]term marriage of 21 years" and that "[t]he original [M]SA was entered into knowing full well that the [p]laintiff was severely injured and unable to work." The judge concluded "[t]he upward modification of alimony . . . seems appropriate." The only factual support for this conclusion was plaintiff's identified increase in the cost of living. As to counsel fees, the judge found "[p]laintiff was forced to file this application because of the recalcitrance of the [d]efendant[,]" "[d]efendant's positions on the various issues have been unreasonable[,]" "[d]efendant [wa]s in a much better financial situation than the [p]laintiff who is totally disabled and without any source of income, sans alimony[,]" and "[t]he fees incurred by [p]laintiff were necessitated [sic] to obtain enforcement of the parties' [M]SA." On May 17, 2011, the court acknowledged the prior order contained a typographical error and amended the alimony award to $780 per week.

Defendant moved for reconsideration. The court held oral argument on July 7, 2011. Regarding the challenge to the increased alimony award, the motion judge stated:

the [$]780 a week is an appropriate number, and I base it on the . . . fact that the marital lifestyle should have been maintained. And it's consistent with the marital lifestyle. . . .

 

[I]t's only a pittance. It's not an . . . outrageous increase. It's appropriate. It's consistent with . . . the cost of living.

Defendant's application was denied in an order dated August 18, 2011. Defendant appeals from all three orders. Plaintiff did not file a responsive brief, but submitted a letter requesting the court affirm the challenged orders.

We reverse a determination modifying alimony when we conclude the motion judge clearly abused his or her discretion, failed to consider controlling legal principles, or otherwise relied upon factual findings which we find were mistaken or unreasonably reached in light of the credible evidence present in the record. Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).

Modification involves a two-step process. "The party seeking modification 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) (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1956)). "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Ibid. If a substantial change in circumstances is demonstrated, then the court reviews the financial circumstances of the parties to determine the appropriate amount of the award.

On appeal, defendant attacks plaintiff's proofs, stating she did not show a change in financial circumstances warranting a review of the amount of support. See Lepis, supra, 83 N.J. at 146 (stating alimony and child support "duties are always subject to review and modification on a showing of 'changed circumstance[]'" (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974))). He notes plaintiff's motion sought an increase in alimony merely claiming the amount agreed to in the MSA was "insufficient to meet [her] current needs" and the cost of living had increased. However, he identifies plaintiff's needs significantly decreased since the divorce, as evidenced by comparing January 26, 2011 case information statement (CIS), which reported monthly expenses of slightly more than $5000, with the total expenses listed on her September 17, 2004 CIS, used in negotiating the alimony listed in the FJOD. Defendant specifically identifies the marital home was sold and plaintiff was relieved of the obligation to pay child support, reducing her annual needs by almost $25,000. He believes her reduced needs, taken together with the inflated or inaccurate report of her current expenses demonstrates a need for a downward modification in alimony. In a separate argument, defendant suggests the motion judge erred by increasing alimony based upon a claimed increase in the cost of living and otherwise failed to set forth the factual basis underpinning the ordered award.

We agree the motion judge's statement attached to the order lacked the specificity required by Rule 1:7-4, as he failed to articulate findings of fact underpinning the legal conclusions made. In the May 6, 2011 order, the judge determined plaintiff's evidence supported her assertion she was unable to work because of her medical condition, which justified a denial of defendant's request for a reduction. The court then suggested "quite obviously an upward modification is appropriate[.]" The judge offered no elaboration explaining his acceptance of plaintiff's assertion that the rising cost of living required an increase.

Rule 1:7-4(a) denotes a trial court's obligation to make findings of fact and state conclusions of law "on every motion decided by a written order that is appealable as of right[.]" The oft-cited instruction by the Supreme Court regarding trial court factfinding bears repeating:

Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.

 

[Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]

 

Our cases have stressed the importance of a trial judge's responsibility to provide findings and conclusions to assure informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). Omission of this duty is particularly problematic where the decision is discretionary, such as a modification of alimony, as the motion judge provides nothing to guide our review of the reasonableness of the exercised discretion. Ronan v. Adely, 182 N.J. 103, 110-11 (2004) (detailing a trial court's obligation to make such findings of fact and conclusions of law as they are critical to an appellate court's "meaningful review"). The standards set forth in our statutes and cases must be addressed by the motion judge to support such a discretionary award. Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). Without findings relevant to the legal standards, the litigants and the reviewing court "can only speculate about the reasons" for the decision. Rosenberg, supra, 214 N.J. Super. at 304.

In this matter, we first note the motion judge erred as a matter of law because an increase in the cost of living unaccompanied by a demonstrated need will not satisfy a movant's burden to show the necessary substantial change in economic circumstances to warrant modification of alimony. Second, the judge's statements ignore the critical judicial responsibility to state findings of fact on all motions appealable as of right. R. 1:7-4. On this issue, the statement accompanying the order includes only the court's naked legal conclusions and opinion that an increase was "obvious" and "appropriate." Such wholly unsupportable findings preclude our review and result in a denial of justice. Roe v. Roe, 253 N. J. Super. 418, 432 (App. Div. 1992).

As an aside, we question the rationale of foregoing oral argument on the critical issues set forth in complex competing motions such as these. We remind Family Part judges that Rule 5:5-4(a) states "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions[.]" (emphasis added). Oral argument may have illuminated the challenges now presented by defendant. Nevertheless, the motion judge's failure to fulfill his factfinding function in entering the alimony provisions of the May 6, and 17, 2011 orders requires their reversal.

Interestingly, the motion judge allowed oral argument on defendant's request for reconsideration. But given the chance to explain the rationale for his prior decision, the judge continued to espouse conclusions without identifying supporting facts. He did suggest alimony at $780 per week was "consistent with the marital lifestyle"; the amount was "a pittance" and did not represent "an outrageous increase"; and "I think it's appropriate." But again, he offered no explanation of these conclusory pronouncements, providing nothing to aid our understanding of why the modified award was entered.

Further, the judge's comments suggesting he tied the increase to the marital lifestyle is untethered to this record, which contains no hint of the parameters defining that lifestyle. No reference to marital lifestyle exists in the MSA; the transcript from the final divorce hearing, which may have discussed the issue, was not provided; and neither party's certification mentions any statements on the issue. In fact, during the reconsideration hearing, the parties offered conflicting arguments regarding what documents would properly reflect the marital lifestyle. This strongly suggests a need to quantify the term before it can be applied. Consequently, if the motion judge intended to craft an alimony award designed to assist plaintiff in achieving a lifestyle reasonably comparable to the one enjoyed during the marriage, Crews v. Crews, 164 N.J. 11, 16-17 (2000), he must perform the requisite analysis to determine the nature of the marital lifestyle, as well as whether the alimony award at the time of the FJOD met that lifestyle or whether modification is necessary.

Following our review of the record, we are at a loss to understand the basis of the motion judge's decision to increase alimony, thus requiring that the orders be reversed and the matter remanded. We do not have the same difficulty when analyzing the discretionary counsel fee award.

Defendant contends the award was unsupported as it failed to consider each factor set forth in Rule 5:3-5(c). We disagree. The motion judge found plaintiff was "forced to file" the motion because of defendant's "recalcitrance" and to enforce certain provisions of the MSA. Although the motion judge did not specify which of defendant's positions he found "unreasonable," the May 6, 2011 order granted many of plaintiff's requests. The judge found defendant failed to comply with the ordered requirements regarding the provision of life insurance; modified a prior order emancipating the parties' child after determining defendant did not disclose the child stopped attending college; ordered defendant's payment of outstanding monies owed under the FJOD; and found defendant misappropriated a check payable to plaintiff. This conduct adequately supports the bad faith finding. The trial judge also considered the parties' respective financial ability after reviewing their filed CISs, finding defendant's financial situation was superior to plaintiff's.

We find these facts were properly grounded in the record, and sufficient to support the motion judge's conclusion that defendant must contribute to the attorney's fees incurred by plaintiff. We conclude that decision represents a reasoned exercise of discretion and will not be disturbed. See Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (stating counsel fee award will not be reversed absent proof it represents an abuse of discretion).

The record on appeal does not include the documents relied upon by the motion judge to fix the amount of the fee awarded, such as counsel's certification of services. Further, it is unclear whether the alimony award, which is now reversed, impacted the amount of the fee award. On remand, the motion judge is directed to review the attorney fee award to clarify the basis to the amount of fees awarded to plaintiff for enforcement.

In conclusion, we remand this matter for full review of the parties' requests for a modification of alimony, especially noting that any change bottomed on a finding that an increase is necessary to maintain the marital lifestyle shall include findings defining that lifestyle, which most likely will necessitate a plenary hearing. Also, the award of counsel fees in favor of plaintiff must be reviewed to set forth the basis for the amount of the fee awarded.

A

ffirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

1 Defendant reported a gross income from part-time employment of $16,433 in 2009 and $19,529 in 2010.