SANDRA MILNER v. EDWARD MILNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SANDRA MILNER,

Plaintiff-Appellant,

v.

EDWARD MILNER,

Defendant-Respondent.

__________________________________

March 21, 2014

 

Argued February 25, 2014 Decided

 

Before Judges Reisner, Alvarez and Ostrer.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-13906-81.

 

Sandra Milner, appellant, argued the cause pro se.

 

Edward Milner, respondent, argued the cause pro se.

 

PER CURIAM

Plaintiff Sandra Milner appeals from a February 7, 2012 order confirming as final the trial court's November 18, 2011 order, establishing the amount of defendant Edward Milner's alimony obligation and denying plaintiff's counsel fee application. She also appeals from a January 6, 2012 order denying her motion for reconsideration.

We affirm the orders on appeal insofar as they denied plaintiff's application that defendant pay a $7500 retainer to an attorney of her choosing. We affirm the denial of a plenary hearing, because plaintiff failed to timely request a hearing despite multiple opportunities to do so. We also affirm the reduction of plaintiff's current alimony to reflect her receipt of Social Security benefits, and the reduction of alimony arrears to reflect amounts she would have received had she applied for Social Security benefits at age sixty-five. However, we remand for reconsideration of a $1000 per month reduction in plaintiff's alimony based on the termination of defendant's private disability insurance.

I

The "back story" of this appeal has been discussed at length in several of our prior opinions and need not be repeated here in the same level of detail. The parties were married in 1962. During the marriage, defendant was a successful physician, while plaintiff was a homemaker. They were divorced in 1985. The divorce settlement provided plaintiff with nine years of rehabilitative alimony.

In 1996, we held that because plaintiff, then age fifty-five, had made diligent but unsuccessful efforts to find employment either in the arts, for which she had a master's degree, or in real estate, for which she had obtained a realtor's license, the original agreement for term alimony was no longer equitable. We therefore ordered that plaintiff be awarded permanent alimony and remanded the case to the trial court for that purpose. Milner v. Milner, 288 N.J. Super. 209, 216-17 (App. Div. 1996).

After the trial court awarded permanent alimony on remand, defendant filed repeated applications seeking to reduce his alimony obligation, largely based on his claims of failing health and reduction of income from his medical practice. In an August 24, 2004 opinion, Judge Diane Cohen accepted defendant's claims that he had health problems and his medical practice was reduced, and she set his alimony obligation at $2850 per month, based on a finding that his income was $129,429.56. She noted that on a prior application, the court had decreased defendant's alimony obligation by thirteen percent, in proportion to the then-decrease in his income. However, on this application, she declined to decrease defendant's alimony obligation in direct proportion to the reduction in his income, because of the drastic effect that would have had on plaintiff's financial circumstances.

We affirmed Judge Cohen's decision in an unreported opinion. Milner v. Milner, No. A-0579-04 (App. Div. June 14, 2005), finding that

she did not abuse her discretion in declining to mechanically reduce defendant's alimony obligation by twenty-eight percent; such a large reduction would have resulted in tremendous hardship to plaintiff who is almost entirely dependent on defendant for her support.

 

[slip op. at 5.]

 

Thereafter, when the parties were both sixty-five years old, defendant filed yet another motion to reduce his alimony obligation. Due to what we later found to be error, a second Family Part judge granted the motion on a default basis, found that defendant's income was only $10,424, and reduced the alimony to $100 per week. We remanded the matter to the trial court "with direction to reconsider the merits of the August 10, 2007 order after giving plaintiff an opportunity to file her opposition to the alimony reduction motion on which the August 10 order was based." Milner v. Milner, No. A-0897-07 (App. Div. Dec. 9, 2008) (slip op. at 6).

On remand, the matter languished in the trial court, perhaps due to disagreements between plaintiff and her attorneys over the non-payment of fees. Eventually, the case was re-activated. However, due to the retirement of the second judge, it was assigned to yet another Family Part judge for disposition (the third judge). The third judge found that due to the passage of time, much of the court's file had been purged. He required both sides to file Case Information Statements (CISs), and five years of income tax returns.

In a lengthy written opinion dated January 10, 2012, the third judge reviewed the history of the litigation in detail, noting that over the years, the parties had stipulated to defendant's income and assets. In particular, since at least 2002, there was no dispute that defendant's income from his medical practice had decreased significantly. There also was no dispute that the non-exempt portion of defendant's retirement savings was considerably smaller than the exempt portion.1

In his opinion, the third judge acknowledged that the parties were entitled to a plenary hearing if they chose to request one. However, after reviewing the record before him, as well as Judge Cohen's detailed findings from her 2004 decision which we affirmed, the judge concluded that the most important financial issues had already been decided and there were only a small number of new facts that were relevant. Those were plaintiff's reaching age sixty-five, making her eligible to collect Social Security benefits "at the rate of $860 per month"; her current receipt of $970 per month in Social Security benefits; and the termination of defendant's $2000 per month private disability insurance policy when he reached age sixty-five.

Based on the parties' current financial information, and Judge Cohen's prior findings, the judge issued a tentative decision, subject to the parties' right to request a plenary hearing. Using the available record, he applied the alimony factors set forth in N.J.S.A. 2A:34-23(b), and preliminarily set alimony at $990 per month. In reaching that number, he took the $2850 Judge Cohen had awarded as a baseline amount and reduced it by two numbers: plaintiff's Social Security benefits, which represented new income to her; and $1000, which was one-half of the $2000 reduction in defendant's income, representing the loss he experienced when his private disability benefits terminated at age sixty-five.2

The judge also calculated that, since the second judge erroneously reduced plaintiff's alimony to $100 per week, plaintiff was entitled to $28,590 in back support. The arrears consisted of $50,490 defendant should have paid for September 2007 through November 2011 (at $990 per month), minus the $21,160 he actually paid (at $100 per week). The judge ordered defendant to pay off the arrears at the rate of $200 per month, which would give plaintiff a total of $1190 per month of spousal support for the foreseeable future. The third judge reasoned that, together with her Social Security benefits of $970 per month, this would provide her with total monthly income of $2160, "or only a $690.00 reduction in her previous monthly spousal support payment of $2850.00."

We note that the $690 reduction amounts to an approximate 24% decrease in plaintiff's total income. The judge's opinion made no finding as to what percentage decrease in income defendant incurred when his disability benefits ceased. Nor was there any other explanation as to why plaintiff should essentially share 50-50 in this decrease in defendant's income.

The judge next addressed plaintiff's request that defendant pay $7500 as a retainer for an attorney she wished to hire to represent her at a plenary hearing. Her application did not address who would pay the attorney once the $7500 was exhausted, or the probable total fees and expert costs required to conduct a plenary hearing. The judge declined to order defendant to pay plaintiff's counsel fees unless defendant asked for a plenary hearing. He reasoned that, if defendant demanded a hearing in order to seek "a further reduction in spousal support, this [would] open the potential of a forensic accounting, which would require [plaintiff] to be represented by an attorney." However, the judge ruled that if plaintiff requested a plenary hearing, the court would not require defendant to pay her counsel fees for that hearing.3

The third judge entered an order on November 18, 2011, embodying his preliminary rulings, subject to the parties requesting a plenary hearing. The judge gave both sides several opportunities to request a plenary hearing. When neither party made such a request, the judge entered an order dated February 7, 2012, declaring his November 18, 2011 order, and his January 2012 order denying reconsideration, to be the final orders in the case.

II

On this appeal, plaintiff raises several issues, which she presents in the following points:

POINT I

 

The trial court wrongly denied my Motion for Reconsideration and my request for $7,500 in retainer to hire my own attorney to comply with Milner v Milner (N.J. App. Div. A-0897-07T1, Dec. 9, 2008).

 

 

POINT II

 

Trial Judge further erred in considering my turning 65 as reason for decrease of my monthly permanent alimony.

 

POINT III

 

The Court erred in failing to conduct a Plenary hearing prior to severely reducing my alimony. There was never a hearing on the determination of my alimony. 1997 was the last plenary hearing in Milner v. Milner. The Court strategically barred me from moving my case to equitable conclusion.

 

POINT IV

 

The trial court further erred in failing to consider "new information" which I brought to the court's attention as soon as I knew of that "new evidence."

 

POINT V

 

The defendant did not establish sufficient cause for his alimony to be reduced from $2,850.00 per month to $430.00 per month to $990.00 per month and for the elimination of his ongoing life insurance obligation.

 

POINT VI

 

The Court erred by not allowing me equal opportunity to present my case and apparently solely relied on my former husband's pleadings in opposition to my retainer fee request.

 

In reviewing the decisions on appeal, we acknowledge the deference due to the expertise of the Family Part in addressing matrimonial issues. See Cesare v. Cesare, 154 N.J. 398, 411-13 (1998). We review the judge's decision on a Lepis4 motion for abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); see also Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) ("The Legislature has left applications to modify alimony to the broad discretion of trial judges."). We will not disturb the judge's determination unless,

the trial court clearly abused its discretion, failed to consider "all of the controlling legal principles," or it must otherwise be "well satisfied that the finding[s] [were] mistaken," or that the determination could not "reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole."

 

[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (citations omitted).]

 

A decision to award or withhold a counsel fee in a matrimonial action rests in the court's sound discretion, Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), after considering these factors:

(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 both during and prior to trial; (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).]

 

We will interfere with a fee determination "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We review a trial court's denial of a reconsideration motion for abuse of discretion. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).

It is well established that we cannot engage in meaningful appellate review of a trial court's decision without adequate factual findings and legal conclusions. Ronan v. Adely, 182 N.J. 103, 110-11 (2004). However, it is equally clear that we cannot fairly engage in appellate review if the appellant does not perfect the appeal by providing us with the record. Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001); see also R. 2:6-1(a)(1).

Judged by those standards, we find that, except as addressed below, plaintiff's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We begin by discussing plaintiff's arguments that the trial court should have required defendant to pay her counsel fee, and should have held a plenary hearing. The judge's opinion acknowledged the standards by which to evaluate a fee application, but did not explain how he applied those standards to plaintiff's application. Ordinarily, that would mandate that we remand for reconsideration. However, in this case, a remand is not required.

First, plaintiff has not provided us with the record of her fee application. In particular, she has not provided the certifications that the parties filed in support of and in opposition to the fee motion. Second, while plaintiff also did not provide us with the attorney's proposed retainer agreement, it is obvious that the $7500 retainer he sought could not possibly have been the total amount the attorney expected to charge for a plenary Lepis hearing with a forensic accounting. Third, given the income reported on the parties' respective tax returns, it does not appear that either of them could afford to retain an attorney for a plenary hearing. Because plaintiff did not perfect an appeal on this issue by providing us with the complete record, and because the record we do have strongly indicates that the judge reached the correct result, we will not disturb the order denying plaintiff's fee application.5

The judge gave both sides several opportunities to request a plenary hearing. Either party could have done so, with or without an attorney. Plaintiff apparently was unwilling to request a plenary hearing unless defendant would pay for her attorney. The judge pressed her on the record for a specific answer as to whether she was requesting a plenary hearing. She dodged the question every time. On this record, we find no error in the court's declining to hold a plenary hearing that neither party requested.

Nor do we find any error in the court's decision to reduce the support arrears by the amount of the benefits plaintiff would have received had she applied at age sixty-five, or his decision to reduce her alimony by that amount. As Judge Cohen clearly indicated in her October 31, 2003 order, the parties agreed that defendant was entitled to "a dollar for dollar credit" for plaintiff's Social Security benefits, when she began receiving them at some point between ages sixty-two and sixty-five. We find it inexplicable that someone in plaintiff's financial circumstances would choose not to apply for Social Security benefits when she turned sixty-five, but in any event, we infer from Judge Cohen's order that the parties agreed that plaintiff would do so. Defendant was entitled to a credit for the benefits plaintiff received, and for those she could have received had she applied for benefits at sixty-five instead of waiting until age sixty-seven. We affirm on that point.

However, we remand for reconsideration of the $1000 reduction in defendant's alimony obligation, which corresponds to fifty-percent of his now-terminated private disability insurance. There is no dispute that defendant's $2000 monthly disability insurance benefits ended when he reached age sixty-five. But the trial court did not explain why it was equitable to impose fifty percent of that reduction on plaintiff, as opposed to some other percentage or amount. The court's decision on that issue contained no analysis of the parties' relative income, assets, and financial needs. There were no findings, for example, as to what percentage of defendant's total income the loss of $2000 represented, as opposed to the percentage of plaintiff's income the loss of $1000 per month represented. Nor was there a calculation of what percentage of defendant's income he had been paying to plaintiff as alimony.

Notably, in our 2005 opinion, we approved Judge Diane Cohen's decision not to "mechanically reduce" plaintiff's alimony by the percentage reduction in defendant's income, because of the tremendous economic hardship it would cause to plaintiff. It is not clear why the third Family Part judge reached a different decision this time around. Therefore, we are constrained to remand for reconsideration of that limited issue.

In remanding, we emphasize that we are not providing the parties an opportunity to re-litigate the facts. The trial court gave them each an opportunity to request a plenary hearing, and they each failed to do so. Of course, the trial court on remand retains discretion to require either or both parties to submit additional information. We are directing the court on remand to consider the record and determine defendant's alimony obligation. In particular, the trial court shall consider the extent to which the termination of defendant's private disability insurance benefits justifies a reduction in his alimony obligation.6

Affirmed.

1 We required the parties to provide us with the CISs and tax information they filed with the third judge. Defendant reported adjusted gross income of $64,927 in 2006, $134,626 in 2007, $85,910 in 2008, $63,244 in 2009, and $58,611 in 2010. Much of that income was comprised of distributions from his retirement account and Social Security benefits, as opposed to salary from his medical practice. Plaintiff's 2010 CIS listed rental expenses of $1500 per month for an apartment and $400 per month for an art studio. She reported that she was $9000 in arrears on her apartment rent. She listed $1775 in proceeds from the sale of her art.

2 We infer that, in addition to subtracting the $1000, the judge reduced plaintiff's $2850 alimony by $860, the amount of Social Security benefits she would have received had she applied at age sixty-five, rather than the $970 in benefits she was receiving at the time he rendered his decision ($2850-$860-$1000=$990). The judge also reduced defendant's arrears by the $860 that plaintiff would have received in Social Security benefits had she applied at age sixty-five.

3 Plaintiff has been quite selective in presenting us with the record on appeal. Her appendix does not contain the affidavits filed by the parties concerning the counsel fee application. The trial judge's oral opinion refers to a November 10, 2011 affidavit from defendant, and a November 16, 2011 responding affidavit from plaintiff. Neither document was provided to us. We also note that it is not clear where the judge derived the figure of $860 per month for the Social Security benefits plaintiff would have received had she applied at age sixty-five. However, it is also clear that plaintiff has not provided us with the entire motion record, including the documents referred to as the source of that information. For example, at the argument of the reconsideration motion on January 6, 2012, defendant's attorney referred to "stipulation number 12 which was entered on September 23, 2002 . . . before Judge Cohen. And that stipulation outlined what social security benefits Mrs. Milner would have been entitled to at the age of 62, 63, 64, and 65." That stipulation is referenced on page 11 of Judge Cohen's October 21, 2003 Order Regarding Alimony. The order recites that "the parties agreed that DEFENDANT EDWARD should receive a dollar for dollar credit for when PLAINTIFF SANDRA avails HERSELF of social security benefits beginning at age 62, 63, 64, or 65."

4 Lepis v. Lepis, 83 N.J. 139 (1980).

5 We will not comment on the judge's threat to make defendant pay counsel fees if he sought a plenary hearing, because defendant has not filed a cross-appeal.

6 We are aware that the third judge passed away while this appeal was pending, and therefore, the case will be assigned to a new judge.