KATHY KALLER v. GEOFFREY LEE GOGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KATHY KALLER, f/k/a KATHY GOGAN,

Plaintiff-Respondent,

v.

GEOFFREY LEE GOGAN,

Defendant-Appellant.

_____________________________________

January 22, 2014

Submitted September 25, 2013 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-96-01.

Kanengiser & Kalish, attorneys for appellant (Jared I. Kalish, on the brief).

Kathy Kaller, appellant pro se.

PER CURIAM

Defendant Geoffrey Lee Gogan appeals from a post-judgment order modifying his alimony obligation to his former wife, plaintiff Kathy Kaller, and from an order denying his motion for reconsideration of the modified amount. Because the judge's statements of findings and reasons on both motions are inadequate to permit review, we remand.

Plaintiff and defendant were married on April 22, 1984 and divorced on August 6, 2001. They have two children who are now emancipated. Their final judgment of divorce incorporates their property settlement agreement, which provides for defendant to pay plaintiff $1500 in alimony per month. At the time of the divorce, defendant was working as a self-employed architect, as he had throughout the marriage. For most of the marriage, plaintiff had not been in the workforce. A case information statement defendant prepared in August 2000 indicates that his gross monthly earnings were $6957, about $83,000 per year, and plaintiff's gross monthly earnings were about $750, about $9000 per year.

The motion and cross-motion that led to this appeal was the third round of post-judgment motions concerning alimony. Defendant's first motion for reduction was denied in 2009, and his second motion was resolved by a consent order under which the parties agreed to $750 monthly alimony for a period of four months ending in March 2011, at which time alimony would return to $1500 per month.

Plaintiff commenced this round of post-judgment litigation in May 2011 by moving to enforce the consent order. She sought payment of $1500 alimony per month, and she requested immediate payment of arrears, $22,456, or, in the alternative payment at the rate of $1000 per month. Defendant filed a cross-motion seeking a reduction of alimony and forgiveness of his arrears because of changed circumstances.

Finding that defendant had made a prima facie showing of changed circumstances, the judge scheduled discovery to be followed by a plenary hearing, which was conducted in November 2011. Although plaintiff had been represented when the competing motions were filed and during the exchange of discovery preliminary to the plenary hearing, neither party was represented during the hearing. The parties compiled and served evidence documenting their income and expenses, which included past and current case information statements, prior post-judgment motions and orders, certifications and "position papers." The appendix defendant submitted on this appeal has 1079 pages.

At the time of the motion, plaintiff reported gross earnings as a licensed home health care aid of $12,496 in 2010, and an average gross weekly income of $401.19 during the first ten months of 2011, a rate that would yield an annual gross income of approximately $20,800 assuming fifty-two weeks of work. Although the pay stubs she provided did not state her hourly wage, plaintiff certified that she was paid $10.75 per hour when employed by an agency and $14 per hour for work she arranged privately. Due to a bone fracture, she had been out of work and received disability payments for several months in 2011. Plaintiff was sixty-four years of age at the time of the hearing, and the record included evidence that she would be eligible for a $400 social security benefit within a few months.

Defendant was fifty-six years of age at the time of the hearing. He reported gross income of $25,710 in 2010 and gross income of $26,462 for the first forty-three weeks of 2011. Defendant explained his decline in income with reference to the impact of the downturn in the economy starting in 2007. He submitted evidence of his efforts to get additional work and reduce his expenses by living in his office, which he asserted had no bathroom or kitchen.

At the conclusion of the plenary hearing, the judge reserved decision and subsequently issued an order and written statement of reasons. In that statement, the judge set forth the procedural history. He briefly discussed the assertions made by the parties, and noted that defendant had made "herculean efforts to market his business and to obtain employment without success." He indicated that defendant had testified that his income had dropped from $80,173 in 2000 to $32,000 in 2011. The judge also noted that defendant had asserted that plaintiff's income had increased from $5367 in 2000 to $12,000 in 2011, and the judge noted, mistakenly, that plaintiff's income was "barely minimum wage." The judge also mentioned the parties' respective ages.

Following a brief recitation of decisional law addressing modification of alimony, the judge provided this statement of reasons: "After reviewing the testimony of the parties and the evidence in the case, it is the considered opinion of this [c]ourt that the [d]efendant is entitled to modification of his alimony obligation as reflected in the [o]rder above [in the amount] of $175 per week payable through probation." He did not address the parties competing requests concerning arrears at all.

Defendant moved for reconsideration, primarily questioning the basis for the judge's decision as to the amount of the alimony reduction. The judge explained that he had considered the difficulty of the financial position of both parties, and again understated plaintiff's hourly wage. Acknowledging errors in his calculations, which he had reviewed again, the judge stated:

I do not find that I've made . . . any error that is worthy of me reconsidering the award.

The amount in question is an appropriate amount. I don't automatically impute income that doesn't exist and in fact the income plaintiff receives, it would be unfair to impute forty hours to a job where where we know it's not. It's an hourly job. And and, additionally, the information provided by defendant was an error in terms of the social security amounts.

And furthermore, notwithstanding his allegation that plaintiff's earnings are more in tune of thirty thousand . . . I'm still confident and I remain confident that my decision was just . . . . It wasn't done in an offhand fashion and I still maintain and believe that the one seventy-five a week effective July 8th payable through probation is appropriate with twenty-five dollars per week towards arrears.

Alimony obligations, whether set in judicial orders or parties' agreements, "are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146-49 (1980). "The Legislature has left applications to modify alimony to the broad discretion of trial judges." Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). "[T]he court may make such order as to the alimony or maintenance of the parties . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just," and "[o]rders so made may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Because modification of alimony is a matter requiring a sound exercise of discretion by a judge of the Family Part, our review is limited to determining whether the judge's factual findings are "supported by adequate, substantial, credible evidence" and whether the judge's conclusions are based on a proper understanding and application of the relevant law. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (discussing deference owed to the factual findings of judges assigned to the Family Part due to their "special expertise" in family matters); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (noting that deference is not afforded to determinations based on a "misunderstanding of the applicable legal principles").

As the judge recognized in reciting the law, changes in either the supporting or supported spouse's income may warrant a modification that is equitable and fair under all of the circumstances. Lepis, supra, 83 N.J. at 151, 158. The difficulty here is that although the judge recited the standard and set forth his conclusion "[d]efendant is entitled to a modification of his alimony obligation as reflected in the [o]rder above of $175 per week payable through probation" he did not set forth findings of fact and conclusions of law explaining the basis for that determination.

A reviewing court's ability to defer is largely dependent upon the judge's compliance with his or her obligation to state findings of fact and conclusions of law as required by Rule 1:7-4. In order to comply, the judge must articulate factual findings and correlate them with the principles of law. Curtis v. Finneran, 83 N.J. 563, 570 (1980). When that is not done, a reviewing court cannot know whether the ultimate decision is based on the law and facts or is the product of arbitrary action resting on an impermissible basis. See Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986) (discussing the necessity for an adequate explanation of a judge's reasons that correlates the facts and legal conclusions); see generally State v. Madan, 366 N.J. Super. 98, 109-10 (App. Div. 2004) (discussing "judicial discretion").

Equally, if not more important, especially in cases involving serial post-judgment motions in a contentious divorce case, an inadequate explanation of the order leaves the litigants to "speculate about the reasons" for the decision. Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986). As a consequence of the inevitable speculation, an order issued without an adequate statement of findings and reasons tends to serve as an invitation to file motions for reconsideration and a subsequent appeal.

We decline to speculate as to the basis for the judge's orders. Accordingly, we remand so that the judge can articulate the factual findings and reasons underlying his orders. Nothing in the opinion should be understood to preclude the judge from modifying the order entered on the motion for reconsideration if, in the course of articulating his findings and reasons, he determines that is appropriate. Moreover, nothing in this opinion should be understood to preclude the parties from reaching an agreement on the reduction in support that is appropriate given their current circumstances or to preclude defendant from withdrawing his appeal in the event of a modification of the order on remand or by consent.

To summarize, this case is remanded and the judge is directed to file supplemented statements of findings and legal conclusions with the clerk of this court within ninety days of this decision. Jurisdiction is retained. Absent a withdrawal of the appeal, upon receipt of the judge's supplemented statements of findings and reasons, the clerk of this court will file a schedule for expedited supplemental briefing limited to argument on the judge's supplemented statements. With any supplemental brief defendant files, he shall file an amended index to his appendix that conforms with paragraph (c) of Rule 2:6-1, which requires a separate listing for each document. That requirement is not satisfied, for example, by a single entry indicating an "answer to cross motion" (capitalization omitted) that spans sixty-eight pages consisting of numerous documents that the reader must identify and locate by himself; or by a single entry indicating "defendant exhibits to cross motion 6-7-2011 . . . Da648-780" (capitalization omitted) followed by and in a separate volume, "defendant exhibits to cross motion (cont.) 6-7-2011 . . . Da781-863" (capitalization omitted).

Remanded.