LINDA BECHTOLD v. ROBERT CLAUSS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1146-13T2

LINDA BECHTOLD,

f/k/a CLAUSS,

Plaintiff-Respondent,

v.

ROBERT CLAUSS,

Defendant-Appellant.

________________________________________________________________

December 31, 2014

Argued December 16, 2014 Decided

Before Judges Koblitz, Haas and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1887-06.

Thomas D. Baldwin argued the cause for appellant (Budd Larner, P.C., attorneys; Mr. Baldwin, on the brief).

Lizanne J. Ceconi argued the cause for respondent (Ceconi & Cheifetz, L.L.C., attorneys; Ms. Ceconi, of counsel and on the brief; Andrea Joy B. Albrecht, on the brief).

PER CURIAM

Defendant Robert Clauss appeals from the August 29, 2013 order reducing defendant's alimony and adjusting child support. Defendant argues that the judge should have terminated his alimony obligation, applied any reduction of alimony retroactively to an earlier date, considered a child's earnings when awarding child support, and awarded counsel fees to him rather than his former spouse. After reviewing the issues raised and mindful of the discretion accorded to family judges, especially after a testimonial hearing, we affirm substantially for the reasons expressed by Judge Mark P. Ciarrocca in his comprehensive written opinion.

I

The parties married in 1988, had two children, and divorced in 2008. After the children were born, plaintiff Linda Bechtold did not work outside the home. She had been a professional ballet dancer and was not college educated. Their final judgment of divorce incorporated a Support and Property Settlement Agreement (SPSA). The SPSA stipulated that plaintiff would continue her schooling to pursue a registered nursing degree. The SPSA indicated that "it [wa]s hoped that [plaintiff]'s anticipated vocation as a Registered Nurse will substantially impact [defendant's] ongoing alimony obligation to [plaintiff]." Defendant funded, via a dedicated interest-bearing trust account, $35,000 from his share of the marital home's equity for plaintiff's schooling.

The SPSA also included a specific alimony modification provision stating

The alimony . . . shall be subject to modification upon either party's demonstration of "changed circumstances" as permitted by law. In this regard, the parties specifically anticipate that [plaintiff] will have completed her education to obtain an "RN" degree in 2012, following which she will obtain employment commensurate with her qualifications and credentials. [Plaintiff]'s said anticipated graduation and anticipated employment will constitute a prima facie changed circumstance warranting a review of [defendant]'s alimony obligation, which may be modified, including termination, based on [plaintiff]'s demonstrated need and the parties' marital lifestyle. The parties stipulate that [defendant's] gross annual earned base income is presently $98,000.00, [plaintiff] is currently unemployed with no earned income.

The SPSA also called for an imputation of an annual salary of $30,000 to plaintiff if she failed to complete her nursing program in 2012. It was agreed that this imputed income "may serve as the basis for an application by [defendant] to modify alimony." Regarding the cessation of alimony in its entirety, the SPSA outlined the following

[Defendant]'s alimony obligation to [plaintiff] shall irrevocably terminate despite any possible foreseeable or unforeseeable change in the parties' circumstances, upon the first to occur of any of the following events

a) Either party's death;

b) [plaintiff]'s remarriage;

c) As otherwise provided by law.

In December 2011, plaintiff graduated from nursing school and passed the Registered Nursing Examination in February 2012, three months earlier than stipulated under the SPSA's terms. She began working at a school in June 2012 earning an annual income of $66,450. Defendant has an MBA and earned $139,235 per year at the time of the plenary hearing.

On July 23, 2012, defendant filed a notice of intention to file motion to modify child support within forty-five days pursuant to N.J.S.A. 2A:17-56.23(a). More than five months later, on January 8, 2013, after unsuccessful mediation, defendant filed a motion to terminate alimony and reduce child support based on changed circumstances, seeking modification retroactive to June 11, 2012, when plaintiff became employed as a school nurse.

Plaintiff filed a cross-motion seeking to 1) deny defendant's motion in its entirety, 2) reduce spousal support to $400 per week, 3) hold defendant in violation of litigants rights for failing to pay alimony since December 2012, 4) direct defendant to pay lapsed alimony payments, 5) maintain child support in the weekly amount of $170, 6) determine the parties' contributions to the children's college expenses, after establishing alimony, based on income percentage, 7) order defendant to maintain a life insurance policy in an unspecified amount as per the SPSA, and 8) award plaintiff counsel fees and costs related to filing this motion.

The Family Part judge entered an order mandating a plenary hearing and, without prejudice and with the consent of plaintiff, reducing defendant's alimony obligation to $400 per week. Pursuant to the SPSA, defendant had been obligated to pay $625 per week plus 30% of any annual income he earned over $98,000 up to $125,000 per year, or a maximum alimony payment of $40,100 per year.

At the three-day plenary hearing, both parties testified as to their budgets, standard of living and income during the marriage and after the divorce. No other witnesses testified. Plaintiff testified in detail that her standard of living diminished considerably after the divorce. She provided detailed financial records to substantiate her case information statements. The parties' eldest child commutes to college and earned approximately $2400 during the summer babysitting. She also babysits at times during the year. With this money she buys her college books, pays many of her car expenses, and bought her own laptop computer.

After the hearing, Judge Ciarrocca entered an order reducing defendant's alimony obligation to $3501 per week, or $18,200 per year. The order also reduced defendant's life insurance obligation, awarded $260 per week in child support to plaintiff,2 directed the parties to contribute proportionate to their net income to the children's college expenses, and contribute similarly to the unreimbursed medical expenses of the children. The order denied defendant's counsel fee request and granted plaintiff $15,000 in counsel fees.3

II

We begin by reviewing our standard of review. We owe great deference to the assessment of the trial judge, particularly in light of the expertise of the family court. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "[T]he trial court . . . has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation and internal quotation marks omitted).

Our narrow scope of review remains unaltered in the alimony context. See Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002) (outlining the circumscribed scope of review in alimony matters). "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citations omitted). Therefore, "[e]ach and 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.'" Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig, supra, 384 N.J. Super. at 21).

III

Defendant argues that the family judge abused his discretion by not terminating alimony. In support of this claim he argues that the judge did not make sufficient findings of the marital lifestyle. Judge Ciarrocca wrote a detailed, thorough opinion, in which he noted that defendant was not credible in his testimony that his understanding of the terms of the SPSA was that alimony would terminate when plaintiff earned an amount equal to the maximum spousal support she could receive under the agreement. The judge also found defendant's testimony as to his financial constraints inconsistent with his continuing improvements to his vacation home post-divorce.

Finding plaintiff's testimony credible, he noted that, although plaintiff received $35,000 for her education, it cost in excess of $90,000. The judge credited plaintiff's testimony regarding her reduced lifestyle post-divorce, giving concrete examples. He then went through all of the alimony factors set forth in N.J.S.A. 2A:34-23(b), finding the facts from the record as to each factor. Based on the evidence, he found that defendant "is able to presently maintain a lifestyle that is more comparable to that enjoyed during the marriage than that of the [p]laintiff." We defer to the findings of Judge Ciarrocca, who had an opportunity to evaluate the witnesses and made sufficient findings supported by adequate substantial, credible evidence in the record to support his decision to reduce, but not eliminate, alimony.

IV

Defendant also argues that his alimony reduction should have been made retroactive to his initial filing of an intention to seek modified child support in July 2012. The decision to retroactively adjust alimony obligations falls to the Family Part's sound discretion. Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982); see also Reese v. Weis, 430 N.J. Super. 552, 584 (App. Div. 2013) (citation omitted) (stating that the retroactivity of the termination of alimony is a discretionary decision).

When defendant's alimony was reduced, his child support was increased pursuant to the Child Support Guidelines, Rule 5:6A. Because he waited until January 2013, more than forty-five days after filing an intention to seek modification, to formally file for a child support change, his increased child support properly was not made retroactive to July. N.J.S.A. 2A:17-56.23(a). If the judge had ordered defendant's reduction in alimony to begin before his child support increased, plaintiff would have been prejudiced. Additionally, the parties' tax returns for 2012 would have had to have been amended based on the August 2013 order. In light of all of these circumstances, the judge did not abuse his discretion when he made the August order reducing alimony and increasing child support retroactive to January, when defendant filed his formal motion for relief.

V

Defendant also argues in one brief paragraph that the judge should have considered the college-age child's earnings from baby-sitting when calculating child support. This argument is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E).

VI

Finally, defendant maintains that the judge abused his discretion in awarding plaintiff counsel fees. Plaintiff incurred fees of $39,845, while defendant incurred approximately $50,000 in fees. Citing to Rule 5:3-5(c), the judge found that defendant had a significantly higher earning capacity than plaintiff, and that defendant took an unreasonable position: that his alimony should be terminated based on the SPSA. The judge found plaintiff's legal position was close to the final determination. He then awarded plaintiff fees in the amount of $15,000, approximately 38% of her total fee obligation. As with his other determinations, the judge set forth his reasons in a written opinion, based on the facts as he found them, and did not abuse his discretion.

Judge Ciarrocca's decision in this matter in every respect is based on adequate substantial, credible evidence, and we therefore do not disturb it.

Affirmed.

1 The judge initially signed an order awarding $320 per week in alimony, but amended the typographical error a few days later to reflect $350.

2 At the time of the divorce, child support was set at $170 and had not been changed.

3 With consent of both parties, the judge subsequently stayed the payment of counsel fees pending appeal.