ANNA L. GROESBECK v. WILLIAM T. GROESBECK IV

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6037-11T3

ANNA L. GROESBECK,

Plaintiff-Appellant,

v.

WILLIAM T. GROESBECK, IV,

Defendant-Respondent.

_______________________________________

April 4, 2013

Argued March 20, 2013 Decided

Before Judges Sapp-Peterson and Happas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-441-09.

John J. Jackson, III, argued the cause for appellant (King Kitrick Jackson & McWeeney, LLC, attorneys; Mr. Jackson, on the brief).

Robert B. Woods argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Anna L. Groesbeck, n/k/a Anna L. Petrillo, appeals from the Family Part's July 31, 2012 order. She specifically contends the judge erred in granting her former husband, defendant William T. Groesbeck, IV's, request for counsel fees. Plaintiff also contends the court erred in denying her cross-motion seeking, in part, an order increasing her alimony and child support and compelling defendant to produce W-2's and tax returns pursuant to the parties' Matrimonial Settlement Agreement (MSA). Furthermore, plaintiff asserts that the judge acted arbitrarily in ordering that she remain a resident of a certain school district as a condition of selling the marital home. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

This is the second appeal filed by plaintiff. On February 28, 2013 we decided her appeal arising from a post-judgment order denying her motion to enforce litigant's rights, claiming the court erred when it denied her application to compel defendant to execute a deed transferring his interest in the former marital home. Plaintiff also asserted that the court should not have granted defendant's cross-motion prohibiting the sale of the marital residence without his consent because she can no longer afford to maintain the home. We rejected both of plaintiff's arguments and affirmed the trial court's order.

As we noted in our previous opinion, the parties were married on June 8, 1996. They have two children. During the marriage, they purchased the marital home, which is located in Farmingdale, New Jersey and is in the Howell school district. The final judgment of divorce (FJOD) was entered on May 18, 2010, which incorporated the parties MSA. Under its terms, plaintiff would remain in the marital residence with their two children. The parties agreed that "it is in the best interests of the children to retain the marital premises until graduation of the children from high school, if financially possible by [plaintiff]."

Defendant filed a motion for relief pursuant to Rule 1:10-3 which sought to hold plaintiff in contempt for failure to pay the mortgage and property taxes as directed by the MSA; directed plaintiff to bring the first mortgage current on the marital residence estimated to be $59,737.69; and, directed plaintiff to bring the second mortgage and all property taxes current.1 Defendant asserted in his accompanying certification that he was served with a foreclosure action reflecting that plaintiff had not made any mortgage payments since the end of February 2011.

In plaintiff's certification, in opposition to defendant's motion, she asserted that she can no longer afford the subject premises. Since the divorce, she incurred additional expenses due, in part, to the fact that she was no longer working from home. Additionally, she contended she cannot afford to pay defendant's attorney's fees and costs as requested. Defendant's certification in reply to plaintiff's opposition sets forth that "[t]he house is now in foreclosure. This is [plaintiff's] attempt to be able to move without meeting her obligations."

Plaintiff filed a cross-motion and supporting certification seeking an increase in alimony and child support due to changed circumstances; directing defendant to turnover all undisclosed assets, income tax returns and W-2's; and holding defendant in contempt. Plaintiff asserted in her certification that at the time of the divorce, defendant failed to disclose his actual income as well as a pension fund he maintained with Parsons. Due to bonuses and salary increases, plaintiff contended that defendant "can easily afford an increase in alimony." Moreover, due to the age of the children and the increase in defendant's income, child support should be increased. Lastly, plaintiff argued that pursuant to the MSA, defendant must turnover copies of his income tax returns and W-2's.

Defendant's opposing certification noted that plaintiff failed to provide the court with a CIS and failed to show any changed circumstances since the entering of the MSA. As to the Parson's pension, defendant certified this was a pre-marital asset known to both parties prior to the entry of the FJOD.

In plaintiff's reply certification she stated that "[s]ince defendant is earning so much more money and forcing [her] to live in a house which [she] cannot afford, [her] alimony and child support should be increased and the defendant should pay the [two] mortgages, real estate taxes, utilities and maintenance upkeep charges on the houses as well as pay for [their son's] four-year education at [Christian Brothers Academy]."

The court heard oral argument on May 11, 2012. An oral decision was placed on the record on July 31, 2012. The judge found that the intention of the parties was to keep the house so that "the kids . . . can both attend high school [in the district]." The judge quoted the MSA, which states "it is in the best interests of the children to retain the marital premises until graduation of the children from high school, if financially possible by [the plaintiff]." The court found that the amount due on the mortgage was approximately $60,000 and plaintiff would never be able to bring the mortgage up to date. Thus, the judge ruled that the only way to resolve this issue is to sell the marital home.

As to the Parson's pension, the court found plaintiff was aware of the pension at the time the MSA was negotiated and that it was not subject to equitable distribution. The court further ordered plaintiff to pay counsel fees in the amount of $2,000. The judge stated:

I feel that his motion was unnecessary. And you know, however, I realize the defendant would like to see the children remain in the marital home, but the reality of the situation now is that the house needs to be sold to avoid any further bleeding of whatever credit or assets the parties have. So that is the order of the Court

And I think in complying with the spirit of the property settlement agreement, the plaintiff shall not move the children out of the school district that they're currently enrolled.

The court entered an order memorializing its oral opinion on July 31, 2012. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

THE TRIAL COURT APPLIED THE WRONG STANDARD ADDRESSSING INTERPRETATION AND/OR ENFORCEMENT OF THE MARITAL SETTLEMENT AGREEMENT.

POINT II

A TERM DIRECTING A PARTY TO RESIDE IN A SPECIFIC TOWN IS UNCONSCIONABLE AND MUST NOT BE ENFORCED.

POINT III

THE TRIAL COURT'S FAILURE TO ORDER PRODUCTION OF W-2s AND TAX RETURNS PER THE MSA WAS ARBITRARILY UNEXPLAINED AND MUST BE REVERSED.

POINT IV

THE TRIAL COURT FAILED TO CONSIDER THE RELIEF SOUGHT IN APPELLANT'S MOTION WHEN RENDERING ITS DECISION.

POINT V

THE TRIAL COURT ERRED BY MAKING CRITICAL FINDINGS "OF FACT" WITHOUT A HEARING.

POINT VI

THE TRIAL COURT FAILED TO ADHERE TO PRIOR CASE LAW SUPPORTING MODIFICATIONS OF ALIMONY AWARDS BASED UPON CHANGED CIRCUMSTANCES.

POINT VII

THE TRIAL COURT ERRED IN AWARDING RESPONDENT'S COUNSEL FEES TO BE PAID BY APPELLANT.

POINT VIII

THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR TURNOVER OF RESPONDENT'S PENSION WHICH WAS NOT DISCLOSED THROUGH DIVORCE PROCEEDINGS.

We begin by stating the well-known principles that inform our review. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007))(alteration in original). And, while we owe no special deference to the judge's legal conclusions, Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995), we "'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super, 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We "reverse only to 'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (alteration in original).

We first consider plaintiff's contention that the judge should not have placed a geographic limitation on plaintiff's relocation. Plaintiff asserts the MSA language reflected the parties intent to keep the children in the same school district only "if financially possible by the [plaintiff]." According to the plaintiff, the judge disregarded this qualifying phrase and failed to consider that the parties' older son was attending CBA, a private school. Plaintiff argues that she can no longer afford to live in the Howell Township school district.

"The basic contractual nature of matrimonial agreements has long been recognized." Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Trial courts should enforce a marital agreement as the parties intended. Pacifico, supra, 190 N.J. at 266. "'[W]hen the parties and their attorneys have bargained at arm's length and there is no showing of unfairness, the trial court should not supply terms which the parties obviously considered and yet did not adopt.'" Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)).

Furthermore, when a post-judgment motion involves a dispute concerning financial issues or support, the moving and opposition papers must be accompanied by a current CIS and the relevant prior CIS. R. 5:5-4(a); Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 5:5-2 (2013). The purpose of the CIS is to facilitate resolution of the dispute by the parties and their attorneys and to provide necessary financial information to the court to rule upon the motion.

The judge noted in his oral decision defendant's position that "we crunched numbers at the time that we negotiated this property settlement agreement and . . . support was calculated based on what the plaintiff would need to maintain her monthly obligation in paying the mortgage, the taxes on the marital home." Plaintiff did not provide the court with any financial information to substantiate she was unable to reside in the Howell school district. Finally, there is no dispute that plaintiff failed to file a CIS in support of her cross-motion.

We are satisfied the judge, in ruling that the plaintiff shall not move the children out of the school district, merely enforced the marital agreement as the parties intended. Pacifico, supra, 190 N.J. at 266. "[I]t is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties." Ibid. Plaintiff failed to submit any financial information to the court in support of her allegation that she could no longer afford to live in the Howell school district.

It should be noted that the "[c]ourts have continuing power to oversee divorce agreements and the discretion to modify them on a showing of changed circumstances that render their continued enforcement unfair, unjust, and inequitable." Konzelman v. Konzelman, 158 N.J. 185, 194 (1999) (citations and quotations omitted). Our decision does not preclude plaintiff from re-filing her motion seeking relief to relocate out of the Howell school district, provided the motion is supported with competent evidence.

Plaintiff next argues that despite the requirement in the MSA that "[e]ffective April 15, 2012 and every other year thereafter, [defendant] shall provide [plaintiff] with his income tax return and W-2[,]" the judge arbitrarily and without any findings denied this relief. We agree.

As we noted in Ducey v Ducey, 424 N.J. Super. 68 (App. Div. 2012), "[f]actfinding 'is fundamental to the fairness of the proceedings and serves as a necessary predicate to meaningful review[.]'" Id. at 74 (quoting R.M. v. Supreme Court of N.J., 190 N.J. 1, 12 (2007)). A trial court must make adequate findings of fact "so that the parties and the appellate court may be informed of the rationale underlying his [or her] conclusion[s]." Ducey, supra, 424 N.J. Super at 74 (quoting Esposito v. Esposito, 158 N.J. Super. 285, 291 (App. Div. 1978)). We reverse and remand to the judge for findings as to why he denied this relief sought by plaintiff.

Plaintiff further contends that the judge failed to consider the relief sought in her cross-motion to increase her alimony and child support due to changed circumstances. It is well-established that trial courts have "broad equitable powers . . . to review and modify alimony and support orders at any time." Weitzman v. Weitzman, 228 N.J. Super. 346, 353 (App. Div. 1988). See also N.J.S.A. 2A:34-23. In making such assessments, we are guided by the Supreme Court's holding in Lepis v. Lepis, 83 N.J. 139 (1980). First, the moving party must make a threshold prima facie showing that "changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157. In considering a proffer of changed circumstances, it is often necessary for the court to delve into the financial status of both parties. Id. at 157-58. When such a showing is made, the court must next determine if a plenary hearing is warranted. Id. at 159. To obtain such a hearing, the moving party must "clearly demonstrate the existence of a genuine issue as to a material fact." Ibid. In making this determination, the court should look to the certifications and supporting documents of the parties. Ibid.

Here, despite the fact that the judge merely denied plaintiff's relief without making any findings, we are constrained to affirm. Plaintiff, in her certification, offers mere conclusory statements about her current financial status with no supporting proof or CIS. Consequently, plaintiff has failed to make a threshold prima facie showing of changed circumstances. See Lepis, supra, 83 N.J. at 157.

Furthermore, plaintiff contends the trial court erred when it awarded counsel fees to defendant. We agree. An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). Such exercise of discretion will not be disturbed in the absence of a showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). "Discretion, however, means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)). "Obviously, '[i]f the trial judge misconceives the applicable law or misapplies it . . . the exercise of legal discretion lacks a foundation and becomes an arbitrary act.'" Id. at 563 (quoting Steele, supra, 92 N.J. Super. at 507).

In this instance, the judge failed to consider the nine factors of Rule 5:3-5(c) when awarding defendant $2,000 in counsel fees. Accordingly, we reverse and remand for the court to reconsider after evaluating all relevant factors including, but not limited to, the parties' ability to pay their own counsel fees. R. 5:3-5(c)(2).

The remaining points raised by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Defendant's motion sought other relief not germane to this appeal.