Annotate this Case






DOCKET NO. A-4338-10T1







May 25, 2012


Argued: February 16, 2012 - Decided:


Before Judges Axelrad and Sapp-Peterson.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1122-08.


Katrina Vitale argued the cause for appellant (Katrina Vitale, LLC, attorneys; Ms. Vitale and Meryl Pedersen, on the briefs).


Christopher R. Musulin argued the cause for respondent (Musulin Law Firm, LLC, attorneys; Mr. Musulin and Christina M. Fulton, on the brief).


In this post-judgment matrimonial matter, plaintiff husband appeals from a Family Part order denying his motion to terminate or reduce alimony and awarding counsel fees to wife. Husband had asserted a material mistake of law, R. 4:50-l, and changed circumstances. He renews these arguments on appeal, additionally contending the changed circumstances warranted a plenary hearing. We affirm in part and remand in part.

Robert Maybury (husband) and defendant Joean Maybury (wife) were married in l994, and had four children. Wife has a son, Ryan, born in 1988, from a prior marriage. The parties were divorced on April 9, 2011, which judgment incorporated their property settlement agreement (PSA). The PSA obligated husband to pay wife alimony of $575 per week.

On or about February 17, 2011, husband filed a motion requesting, among other things, that the court terminate or modify his alimony obligations and award him counsel fees. Wife filed a cross-motion in opposition and requested counsel fees. Following oral argument on March 25, 2011, the court denied husband's motion and awarded wife $840 in counsel fees, memorialized in a written opinion and order of the same date. This appeal ensued.

On appeal, husband argues the trial court misapplied the standard of review and erred as a matter of law in denying his motion. Husband contends he established a prima facie showing of changed circumstances and the court disregarded wife's change in economic circumstances, and that the alimony terms are no longer fair and equitable to him as he can no longer maintain his former standard of living. Husband also contends the court abused its discretion in the counsel fee award and failed to apply the requisite factors.


Husband and wife were married for fourteen years. Husband certified that during the marriage he was employed at the Mt. Holly Municipal Utilities Authority (MUA) and served as a committee person for Westampton Township. According to husband's Case Information Sheet (CIS) dated October 15, 2008, his gross income was $94,404 in 2007, and his net annual income was $79,199.84. He listed his weekly deductions at $365.20 and net average weekly income at $1450.26. In addition, husband reported the receipt of $71.15 per week gross, $64 per week net, from his political office, raising his total annual income to about $98,104 gross, $82,528 net. Husband's reported monthly expenses totaled $4769.68.

Wife certified that, during their marriage, she served exclusively as the homemaker and primary caretaker of the children while husband worked full-time. She also noted she became disabled during the marriage and qualified for Social Security Disability. According to the 2008 CIS, wife's gross income from these benefits in 2007 was $8538, and her net income was $6707.

The parties executed the PSA, both represented by counsel. The PSA noted the final accepted agreement was the parties' fifth draft. The PSA provided the parties were to share joint legal custody of the children born of the marriage, with wife as the parent of primary residence. Husband was obligated to pay wife $309 per week in child support, effective upon the sale of their marital home. The PSA's income assumptions underlying this amount were contained in the child support guidelines worksheet attached to it.

Husband was also obligated to pay $575 per week in alimony, effective upon the sale of the marital home. These obligations were "based upon Husband's gross annual income of $103,000 and Wife's benefits from the Social Security Administration in the amount of $8,064 as of 2008." The PSA provided these alimony obligations were taxable to wife and deductible to husband. The PSA also reflected that "[h]usband maintains various retirement account[s], including a PERS, 457 Plan, and a Deferred Compensation Plan[,]" which net value would be evenly divided between the parties.

In February 2011, husband filed a motion in the Family Part requesting, in part, termination or modification of his alimony obligation based on either or both mutual mistake under Rule 4:50-1, and changed circumstances, and modification of his child support obligations based upon a "material mistake of law."1 Husband certified that under the PSA his child support and alimony obligations totaled $45,968 per year, or $3830 per month, which was sufficient to maintain his monthly budget.

However, husband certified that at the time of the divorce he was staying with his father, and when his alimony and child support obligation commenced after the July 2009 sale of the marital home, it became apparent he did not have sufficient income to live on his own because "during the first part of the year [his] take[-]home pay from both jobs was rarely in excess of $450.00 per week." Husband claimed he did not immediately address this problem because he was dealing with parenting time issues.

Husband retained new counsel, who noted a "mistake of law" in calculating husband's income in the 2008 CIS, thus requiring a modification of his alimony obligations under Rule 4:50-1. Husband certified he was unaware that mandatory retirement contributions were being deducted from his income, and argued these contributions, $7332 yearly, $141 weekly, were not deducted from his annual income for the purposes of calculating child support or alimony. Husband certified he "relied upon the attorneys" to determine his alimony payments and his monthly needs, and "[s]omewhere, somehow, they dropped the ball."

Husband further certified that he continued to work for the MUA but his salary, including his mandatory retirement contributions, was now only $99,424 per year, or $1912 per week. After deducting his retirement contributions, his net weekly income available was only $1780 per week. Husband also certified his stipend as a committee person for Westampton was "in limbo" and he would likely not be receiving such stipend in 2011. Thus, husband argued that his weekly take-home pay would average less than $350 per week.

Husband also argued changed circumstances by wife. He contended wife's son Ryan, then twenty-two years old, was residing with her and should be contributing to her household expenses. He also presented a February 24, 2010 deed, recorded on March 3, in which wife's mother transferred a property in Westampton Township to wife for $l consideration. Husband asserted a belief that the home was unencumbered and worth at least $300,000 to $375,000. He claimed if wife sold the property, the proceeds would "be equivalent to 10 to 12-1/2 years of non-taxable alimony" at his current rate, and urged this gift was grounds to terminate alimony. Husband further argued that wife's sister, who was living in this gifted home, should be paying wife market rent, which would increase wife's income. Husband alternatively proposed the court impute income of at least $300 per week to wife based on her son's living in her home and her sister's living in her "rental" house and give him an alimony reduction of $300 per week.

Wife filed a cross-motion, in part opposing husband's requested relief. Wife certified that her mother was "temporarily residing at Avista Care" following a stroke, was expected to return to the residence that spring or summer and "[t]he transfer was solely for the purpose of Medicare planning." Wife attached a March 9, 2011 letter from her mother's estate attorney, representing that "[b]y transferring the house to [wife] her disabled child, [wife's mother] was able to qualify for Medicaid, and preserve the house." The attorney further stated that the mother anticipated returning to the home to live "later this year," and her understanding was "the family plan is to re-title the property to include a family trust for the three children." She further expressed her understanding "that the costs and expenses of the home have been and are being paid by [wife's] sister." Wife's certification was silent as to the family's intended future plan and her sister's payments. Wife also certified that her son was "stay[ing] with [her] for a few weeks" because he had been "laid off from his job." Wife additionally attached comments written by husband and posted on the internet in response to a news article in which husband voiced his negative views on alimony, equating it to "slavery" and calling it "unconstitutional."

In an oral and written decision of March 25, 20ll, the court denied husband's motion to terminate or reduce alimony. The court rejected husband's argument that he did not comprehend the amount of money he would have remaining after he paid his alimony and child support obligations. The court found husband was not unsophisticated, receives a paycheck, and could easily calculate the amount of money remaining after he satisfied his support obligations. Further, the court rejected husband's assertion that he was unaware of his mandatory retirement contributions and did not consider this in agreeing to the alimony award, noting that both parties were represented by counsel and, in contrast with the child support guidelines, negotiated an alimony figure in 2009. Referencing husband's negative views on alimony, the court stated its disbelief that husband would have accepted an "arbitrary figure" simply upon counsel's advice and the strong likelihood husband "did everything that he possibly could to avoid paying alimony" and gave "much thought and consideration" to the alimony figure upon which he agreed in the PSA.

The court also rejected husband's argument that there were significant changes in circumstances to warrant a modification of alimony. The court noted that husband's income remained the same as that utilized in the PSA. Moreover, it found husband failed to carry his burden with regard to imputing income to wife based on either or both wife's adult son residing in her house or the transfer of wife's mother's home to wife.

The court awarded $840 in counsel fees to wife, half of the amount she sought. In making this determination the trial judge addressed the factors contained in Rule 5:3-5(c), in part, balancing husband's being in a more favorable position to pay counsel fees with his legitimate application to address the errors made in the child support calculation. This appeal ensued.

On appeal, husband argues the court misapplied the standard of review in denying his motion for termination or reduction of alimony. Husband specifically contends: (1) he established a prima facie showing of changed circumstances and the court disregarded wife's change in economic circumstances, and (2) the spousal support terms are no longer fair and equitable to him and he can no longer maintain his former standard of living. Husband further argues the court abused its discretion and did not consider the proper factors in its counsel fee award.


"We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespov. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova FarmsResort, Inc. v. InvestorsIns. Co., 65 N.J. 474, 484 (1974)). See also Cesare v.Cesare, 154 N.J. 394, 413 (1998) (holding that family courts have special jurisdiction and expertise in family matters to which we generally defer).

Modification of an alimony award based on a claim of changed circumstances is a matter within the sound discretion of the Family Part judge. Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v.Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Every motion to modify an alimony obligation "'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).

Courts have the power to enforce interspousal support agreements to the extent that such agreements are fair and equitable. Lepisv. Lepis, 83 N.J. 139, 148 (1980). Courts also have the power to modify such agreements "upon a showing of changed circumstances." Id. at 146. (internal quotation marks and citation omitted). However, the court must give due weight to the fact that there is a strong public policy "favoring the use of consensual agreements to resolve marital controversies." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Weishaus v.Weishaus, 180 N.J. 131, 143 (2004) (internal quotation marks and citations omitted).

Husband asserts the "mutual mistake of fact and law in calculating the original alimony and child support order" caused wife to experience a "vast improvement" in her economic status. We are satisfied the record amply supports the court's rejection of this argument. Matrimonial agreements may be reformed when the agreement fails to express the parties' real intent, such as when there is a common mistake, or when the mistake of one party is accompanied by the concealment of the other. Miller v.Miller, 160 N.J. 408, 419 (1999). However, when a party is represented by an attorney, states that he or she understands the agreement, and there is no asserted allegations of fraud, unconscionability or overreaching, "no legal or equitable basis exists to reform the parties' property settlement agreement." Ibid.

Husband can point to no allegation of fraud, mistake, or unconscionability in this case. As noted in the PSA, both parties were represented by counsel and confirmed they reached the agreement voluntarily. Moreover, this alimony award was presumably one of the terms negotiated over five drafts before the final agreement was signed.

The court correctly noted the difference between the parties' counsels' mistake respecting the child support guidelines and counsels' negotiations of an alimony award. Husband's assertion that he was unaware of his mandatory retirement contributions until after the PSA was entered is unpersuasive. He had been employed with the MUA in 2009 when the PSA was executed, and remained in that employment. Husband presented no evidence that these retirement contributions changed since the alimony award was negotiated in 2009. Presumably husband's counsel reviewed his pay stubs to ascertain the withholding deductions listed on the CIS. Moreover, the PSA contains a specific clause noting that husband maintained various retirement accounts that were subject to equitable distribution.

Husband also asserts he has shown a prima facie case of changed circumstances as he has suffered a decrease in his standard of living, and "is relegated to living [] in his father's home." He attributes this to a permanent "significant shortfall in his monthly budget." We disagree.

There is "no brightline rule by which to measure when a changed circumstance has endured . . . to warrant a modification," rather such determinations turn on the discretion of Family Part judges, "based upon their experience as applied to all the relevant circumstances presented." Donnelly v.Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (quoting Larbig, supra, 384 N.J.Super. at 23). Thus, such decisions should not be disturbed "absent an abuse of discretion." Larbig, supra, 384 N.J. Super. at 23.

Lepis sets forth the framework for determining whether the duties of the supporting spouse should be modified. Supra, 83 N.J. at 157-59. First, the moving party "bears the burden of making a prima facie showing of changed circumstances." Crews v. Crews, 164 N.J. 11, 28 (2000) (internal quotation marks and citation omitted); Lepis, supra, 83 N.J. at 157. After such burden is met, the court can order a hearing to determine both parties' financial positions, including the supporting spouse's ability to pay. Lepis, supra, 83 N.J. at 157.

"When support of an economically dependent spouse is at issue, the general considerations are the dependant spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependant spouse at the former [marital] standard." Id. at 152. Examples of such changed circumstances include, an increase in the cost of living; an increase or decrease in the supporting spouse's income; the dependent spouse's loss of a home; and subsequent employment by the dependent spouse. Id. at 151.

A supporting spouse's financial condition will suffice to demonstrate a change in circumstances "[o]nly in very limited circumstances," such as when the supporting spouse seeks a downward modification of a support award, and the supporting spouse can show a substantial change in the financial condition. Crews, supra, 164 N.J. at 30. Additionally, it is material that the supporting spouse demonstrate his inability, as a result of this changed circumstance, to support himself and the supported spouse. Id. at 30-31. The court also should consider the supported spouse's ability to contribute to his or her own maintenance, both when the agreement was made, and during the application for modification. Lepis, supra, 83 N.J. at 155.

In denying husband's motion to terminate or modify alimony based on changed circumstances, the court did not find husband met this burden of showing a prima facie case of changed circumstances. As noted, husband's income remained the same at argument as when the PSA was executed. Alimony was based on husband's gross annual income of $103,000. The February 2011 CIS submitted with husband's motion lists his gross annual income as $104,364 for 2010. This is not an instance where husband lost his job or suffered an extreme reduction in salary. Rather, husband's stipend from his public office was reduced to $1200 in 2010, and he expressed a concern that the position would not be compensated in 2011 and 2012 because of budget cuts. However, husband's annual salary from his employment at the MUA has increased.

Husband also asserts that changes in wife's circumstances satisfy the changed circumstances standard. He emphasizes that "a change in circumstances warranting modification of support may [] result from an alteration of the fortunes of either party." Stambergv. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). Husband places great weight on wife's changed circumstances based on the gift of her mother's home, a "mortgage-free acquisition," which he contends improved wife's financial condition and for which rental income should have been imputed, particularly in view of its actual occupancy by wife's sister. Irrespective of why title was purportedly transferred into wife's name, it is undisputed she owned the property and her sister was living there at the time of the motion. Although the letter of explanation from the estate attorney expressly states the transfer was done to preserve the home for the mother and her children, the court should have delved into this issue further and determined whether the family complied with the statutory or regulatory requirements as to this transfer. See, e.g., Inre Keri, 181 N.J. 50 (2004); 42 U.S.C.A. 1396p(a)(l)(B) and (2)(B); N.J.A.C. 10:71-4.4.

The court also should have explored aunt's occupancy of the house, particularly in view of husband's asserted belief that she was also given a home by wife's mother and wife's lack of certification that her sister was paying its costs and expenses. As the court noted, Ryan's use of his mother's address on his drivers' license is not necessarily indicative of the fact that he was living there permanently. The court, however, should have explored Ryan's situation in greater detail to ascertain whether his move home was, in fact, temporary and whether wife was contributing to his expenses.

We make no determination at this time as to whether, in fact, either or both mother's new real estate acquisition and Ryan's presence in wife's house substantially improved wife's financial situation such that husband is entitled to a reduction in alimony under Lepis. We are satisfied, however, that husband is entitled to a limited remand for further discovery on these issues and, potentially, a plenary hearing. Given the passage of time, it will be evident whether wife's mother returned to the house to live and whether the house was re-titled to a family trust, and whether Ryan remained at wife's house beyond the anticipated "few weeks." After discovery and further submissions, the court may determine, following argument or a plenary hearing, that such transfer did not afford wife an economic benefit, and was solely for the purposes of her mother receiving Medicare funds, and her sister was paying the carrying costs of the house as rental. The court may also determine that Ryan's presence in wife's house was, in fact, temporary or that wife was not paying his expenses.

We turn now to husband's challenge to the counsel fee award to wife. Pursuant to Rule 5:3-5(c), the award of counsel fees in a matrimonial action is at the court's direction. Williamsv. Williams, 59 N.J. 229, 233 (1971); Heinl v. Heinl, 287 N.J.Super. 337, 349 (App. Div. 1996). We have recently reiterated that "[w]e will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Barr v.Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). Such abuse of discretion will be found when a decision "is made without a rational explanation, inexplicably departed from established polices, or rested on an impermissible basis." Barr, supra, 418 N.J. Super. at 46 (internal quotation marks and citations omitted).

In determining the amount of the fee award, the court should consider:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties . . . ; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c)].

In its oral decision, the court reviewed the statutory factors in determining the counsel fee award. It noted that husband was in a far better financial position than wife, and had a much greater ability to pay his counsel fees. However, the court stated it could not, and would not, take wife's disability into account in inferring husband had a greater obligation to pay fees. The court considered, in part, that husband prevailed on the child support issue, and thus reduced wife's counsel fee award by half, only awarding her $840 in fees.

We discern no abuse of discretion by the court in its counsel fee award to wife. However, to the extent the $840 award was based on the court's rejection of all aspects of husband's motion for a termination or reduction in alimony, it is appropriate to remand the award in view of our remand on the issue of wife's improved financial condition. The court should re-analyze the counsel fee award in the context of the remand.

Affirmed in part, remanded in part. We do not retain jurisdiction.


1 Husband's motion to modify child support from $309 per week to $205 per week was granted, as the calculation did not include required deductions and adjustments. This amount was recalculated by the trial court on temporary remand, resulting in a child support obligation of $301 per week by order of June 17, 2011. The child support issue was not appealed.