GERARD STRATTHAUS v. MARY STRATTHAUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GERARD STRATTHAUS,

Plaintiff-Appellant,

v.

MARY STRATTHAUS,

Defendant-Respondent.

August 5, 2014

Submitted May 28, 2014 Decided

 
Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-487-06.

Gerard Stratthaus, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Gerard Stratthaus, who is self-represented, appeals Family Part orders dated April 1 and April 2, 2013. No response was filed by defendant Mary Stratthaus. Plaintiff contends the court erred in denying the relief he sought by way of cross-motion: (a) a decrease in his alimony payments, (b) a reduction in his obligation to maintain $150,000 in life insurance, (c) vacating the requirement that he name his wife as both beneficiary and owner of his life insurance, (d) making defendant responsible for certain tax liabilities, and (e) awarding defendant one-half of the gross accounts receivables due from his business. Plaintiff also appeals the court's award to defendant of counsel fees. With the exception of the decisions as to the life insurance and accounts receivables, we affirm.

We detail the relevant facts and circumstances we have gleaned from the record. The parties divorced on January 14, 2008, after a thirty-five-year marriage. Their two children are now emancipated, although at the time of divorce, the youngest child was still in college.

The parties' 2008 marital agreement called for plaintiff to pay defendant $3500 monthly in permanent alimony. Initially, the alimony obligation was to be satisfied from plaintiff's half of the proceeds of sale from his dental practice, which was payable in monthly installments. The parties further agreed that those monthly installments were neither taxable to defendant nor deductible by plaintiff. The agreement provided that the parties could revisit alimony in September 2011, when the payments generated by the sale would cease. If no agreement was reached, the parties could seek modification from the court. Monthly payments after September 2011 were deductible by plaintiff and to be declared as income by defendant. It is not clear from this record if plaintiff has made any alimony payments at all after the purchase price for the sale of the dental practice was paid in full.

At the time of the agreement, plaintiff's annual gross earnings were $78,000, which when added to his half of the sale proceeds, or $60,648.12, made his annual income at the time $138,648.12. Plaintiff's 2011 tax return reflected annual gross wages of $120,000.

In an undated letter, plaintiff advised defendant that he no longer wished to work full-time and was working only three days a week. He also advised her that he planned on retiring at the age of sixty-two and, accordingly, that his alimony obligation should terminate. Defendant, who did not work outside the home during the marriage, did not agree.

In a certification defendant filed in opposition to plaintiff's cross-motion, she states that she is "employed as a dental hygienist." The record does not include her salary. She acquired her certification as a dental hygienist after the parties' separation. In the same certification, she stated that at age sixty, it was difficult for her to compete with far younger technicians.

The agreement also obligated plaintiff to maintain $150,000 in life insurance so long as he was required to pay child support and/or alimony. Defendant would be designated as the beneficiary and the owner of the policies. At present, defendant appears to have $75,000 in life insurance coverage through his employer, and an additional $75,000 policy which he owns, both of which name defendant as the beneficiary. Although he explains that he is unable to transfer outright ownership of the policy that is an employment benefit to his former wife, he offered no reason he was unable to transfer ownership of the individually maintained policy.

In his cross-motion, plaintiff alleged that defendant failed to cooperate with the filing of amended tax returns for 2005 and 2006, also included in the agreement. Defendant disputed this claim, asserting that plaintiff did not provide her attorney with the necessary paperwork on a timely basis.

Finally, the transcript of the parties' agreement, placed on the record when they divorced, indicates that they would equally divide accounts receivables remaining at the time of sale of plaintiff's dental practice. No actual mention is made of those receivables in the initial form of divorce decree entered on February 8.1

Because the Family Part judge found defendant's actual wages were higher when he filed the cross-motion seeking reduction in alimony than when the obligation was entered into, she denied the application without compelling defendant to file financial information disclosing her earnings. Concluding he had not established a prima facie change in circumstances, the request was denied.

The judge also awarded defendant counsel fees of $2911.53. She opined that plaintiff was in a better financial position than when the agreement was made, defendant's motion (to which plaintiff's application for modification was a cross-motion) sought enforcement of prior court orders which he had "willfully violated," and that he had not acted in good faith. She also noted that a number of defendant's requests were denied, while plaintiff had succeeded in enforcing existing orders.

Although the record is equivocal on the point, plaintiff may have previously sought and been denied relief regarding defendant's obligation to file amended tax returns. Because of the lapse in time between 2008 and plaintiff's 2013 motion, and because of the possibility that plaintiff previously sought relief on this point and was denied, and took no appeal from the denial, we will not revisit the issue.

"The scope of appellate review of a trial court's fact-finding function is limited," and, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 411, 413 (1998). "However, where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom the appellate function broadens somewhat." C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989). "[T]he trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to . . . plenary review." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013).

"The basic contractual nature of matrimonial agreements has long been recognized." Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). "[M]atrimonial agreements between spouses relating to alimony . . . , which are fair and just, fall within the category of contracts enforceable in equity." Petersen v. Petersen, 85 N.J. 638, 642 (1981). Generally, "[t]he law grants particular leniency to agreements made in the domestic arena, and [] allows judges greater discretion when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992).

"When a party to a comprehensive negotiated PSA seeks to modify any support obligation, that party must meet the threshold standard of changed circumstances." J.B. v. W.B., 215 N.J. 305, 327 (2013). An increase or decrease in the supporting spouse's income may constitute a changed circumstance. See Lepis v. Lepis, 83 N.J. 139, 151 (1980). We review a trial judge's decision on a motion to modify alimony mindful of the "wide discretion . . . which our law rightly affords to trial judges who deal with these matters." See Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009) (internal quotation marks omitted).

"[T]he award of counsel fees and costs in a matrimonial action rests in the discretion of the court." Williams v. Williams, 59 N.J. 229, 233 (1971). A trial court does not abuse its discretion when "there are good reasons for an appellate court to defer to the particular decision at issue." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002).

The language in the agreement does not guarantee modification after the business sale proceeds were expended; it only notes that the parties, if either thought it necessary and they did not agree, had the right to turn to the court for modification. Plaintiff's decision to semi-retire at sixty-two, while earning $120,000 a year, should not result in modification of his obligation after a lengthy marriage. See Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992). We agree that plaintiff has not demonstrated a legitimate reduction in his earnings. Of crucial importance is the fact that in the year he agreed to the $3500 monthly amount, his actual wages were $60,648.12, while in the year he sought modification, they came to $120,000.

With regard to plaintiff's obligation to provide defendant with $150,000 worth of life insurance coverage, it appears that plaintiff owns at least one policy in the amount of $75,000. We say it appears, only because the record is also unclear on this point. Plaintiff is provided a $75,000 policy through his employer of which defendant is the named beneficiary. The record does not clarify any reason plaintiff cannot name defendant as the owner of at least his $75,000 policy, as the agreement required. Because of the expense, given plaintiff's age, it does not seem reasonable, however, to compel him to purchase a second $75,000 policy if the coverage is available at no cost or a reduced cost through his employer. Therefore, although we affirm the Family Part judge's decision requiring plaintiff to continue to maintain $150,000 worth of coverage, as he has not established any changed circumstances which would support such a modification, we will not require him to purchase another $75,000 policy for the sole purpose of transferring ownership to defendant.

With regard to counsel fees, it is clear that plaintiff has failed to comply with the agreement he entered into. He is attempting to abandon his financial responsibilities under the agreement while seeking to extract a penalty from defendant for her alleged failures to comply. The judge in this case made appropriate findings of fact, and appropriately considered all the factors, as required by Rule 5:3-5(c), with regard to the award of counsel fees. Given our deferential review, we cannot say that the judge's conclusions were so clearly mistaken or wide of the mark that we should interfere.

Finally, plaintiff appeals the court's decision to require him to pay to defendant gross receipts received from accounts receivables as opposed to net. This to us does not seem to be justified either by the agreement, the record, or any precedent. To make payments as the judge ordered would mean the parties would not enjoy equal shares of the accounts receivables. This issue may ultimately be moot, as it is not clear if plaintiff even has collected such funds. He makes no mention of any amounts, nor did so in the proceedings from which this appeal is taken.

Affirmed, except reversed as to plaintiff's life insurance obligation and obligation to pay defendant one-half of gross accounts receivables from his dental practice.

Affirmed in part, reversed in part.

1 By order dated April 3, 2013, some provisions of that decree were amended nunc pro tunc to the date of the divorce. Those changes were not relevant to the issues on appeal.