LISA F. TURNER v. WILLIAM S. TURNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LISA F. TURNER,

Plaintiff-Respondent,

v.

WILLIAM S. TURNER,

Defendant-Appellant.

_________________________________________________

February 5, 2014

Submitted October 1, 2013 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-945-99.

Arthur J. Shulman, attorney for appellant.

Laufner, Dalena, Cadicina, Jensen, & Boyd, L.L.C., attorneys for respondent (Mario N. Delmonaco, of counsel and on the brief).

PER CURIAM

Defendant, William S. Turner, appeals from a May 4, 2012 Family Part order denying his motion to modify his alimony and child support obligations to plaintiff, Lisa F. Turner, and a July 6, 2012 order denying his motion for reconsideration. After carefully reviewing the record and applicable legal principles, we affirm.

We have gleaned the following facts from the record. The parties were married on October 18, 1986 and had three children, born in 1991, 1992, and 1994. During the marriage, plaintiff was diagnosed with Multiple Sclerosis. The parties entered into a Property Settlement Agreement (PSA) on June 11, 2001, which was incorporated into their judgment of divorce of the same day. At that time, defendant worked in the financial industry making approximately $400,000 to $550,000 per year, and plaintiff was unemployed due to her illness.

The PSA required defendant to pay permanent alimony of $7000 per month and child support of $6000 per month. The child support obligation was subject to review as each child entered college, and both parties agreed to assist the three children with their college expenses. Defendant also agreed to maintain health insurance for the children and two life insurance policies, one for the children, and one for plaintiff.

Defendant lost his job in November 2001 and received a severance package totaling $704,270. Defendant asserted that he searched for a comparable position, but due to the economic downturn, he was unable to obtain employment in his field.

In Fall 2002, defendant took a temporary position as an actuarial analyst at a salary of $50,000 per year. On December 1, 2003, the parties agreed to temporarily reduce defendant's monthly support payments to $5000 for alimony and $4000 for child support.

On May 9, 2005, defendant began working in investment management at a salary of $160,000 per year.1 On May 23, 2005, based on the $160,000 salary, the parties agreed to reduce defendant's support obligations a second time. The agreement provided that defendant would pay $4000 in alimony and $3000 in child support per month for February through May 2005, and $4250 in alimony and $3250 in child support monthly beginning in June 2005.

Defendant was laid off in June 2009. Claiming he had no job prospects anywhere in the United States, he applied for a position with the German offices of his most recent employer. He began work in Germany on March 22, 2010. Defendant's salary was EUR 110,000 per year, or approximately $138,420. Defendant's tax returns showed that he made approximately $166,311 in 2010, and $161,611 in 2011.

In August 2010, the trial judge denied, without prejudice, defendant's motion to reduce his support obligations, subject to the submission of adequate documentation. On October 13, 2010, the trial judge granted, as unopposed, defendant's motion for reduction of his support obligations. Defendant reduced his alimony and child support payments to a total of $4240 monthly around November 2010. On January 24, 2011, after receiving plaintiff's motion to vacate, the judge vacated his October 13, 2010 order and restored all prior orders.

The judge denied defendant's third motion to reduce or eliminate his support obligations on June 1, 2011. The judge found that defendant had not submitted substantiation for his claim that he had substantial and permanent changed circumstances and ordered him to "provide copies of his job applications from 2005 to the present day addressed to employers seeking skills comparable with a [chartered financial analyst (CFA)], as well as rejection letters from the same employers, in support of his contention that he has not met 'a warm reception in this field.'"

On January 23, 2012, defendant filed the motion currently on appeal, again requesting a reduction of his support obligations, claiming a change in circumstances based on his decrease in income from 2005 to 2011. Defendant claimed that his salary was diminished by increased German taxes, an inability to deduct his support obligations, and increased costs to maintain health care for the children. Defendant requested a reduction in his child support, elimination of both his alimony obligation and his life insurance maintenance obligation, and a determination of when his oldest child would be emancipated. Plaintiff filed a cross-motion and opposition on March 8, 2012.

On May 4, 2012, the trial judge heard oral argument and denied the motion. In his twenty-six page statement of reasons, the judge found that defendant failed to demonstrate the requisite change in circumstances because his earnings in 2010 and 2011 were greater than or substantially the same as his earnings at the time of the 2005 modification. Moreover, the judge determined that defendant had a high earning capacity, and demonstrated insufficient efforts to find alternative employment. The judge also noted that defendant had unclean hands based on his unilateral support reduction, and that his failure to provide both a complete 2011 tax return and his latest 2012 translated paystubs, warranted procedural denial.

The judge granted most of the relief sought by plaintiff, including ordering payment of alimony and child support through probation, payment of $51,000 in arrears, and counsel fees. On May 7, 2012, the court issued an amended order setting the amount of counsel fees.

On May 28, 2012, defendant filed a motion for reconsideration, which plaintiff opposed. On July 6, 2012, in a thirty-seven page statement of reasons, the judge denied defendant's motion. On August 3, 2012, the judge ordered defendant to pay plaintiff's counsel fees in the amount of $5750. This appeal followed.

On appeal defendant argues that he showed the requisite change in circumstances under Lepis v. Lepis, 83 N.J. 139 (1980). Initially, defendant contends that he demonstrated that his income has permanently decreased and his expenses increased, warranting a plenary hearing. Next, defendant asserts that the trial judge erred by stating that defendant was procedurally deficient in failing to produce documents, such as his 2011 tax return, that did not yet exist. In addition, defendant claims that the judge improperly made findings on material disputed facts. Defendant also argues that the judge incorrectly utilized the 2005 modification as the starting point in determining whether there had been a change in circumstances. Finally, defendant maintains that the judge erred by failing to set a future date for his oldest child's emancipation and failing to reduce his child support obligation. Defendant seeks reversal of the order, remand for a plenary hearing, and disqualification of the trial judge. We conclude that none of defendant's arguments have any merit.

Alimony and child support "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. To make such a modification, a showing of "changed circumstances" is required. Lepis, supra, 83 N.J. at 146; see also Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). Examples of changed circumstances include:

(1) an increase in the cost of living;

(2) increase or decrease in the supporting spouse's income;

(3) illness, disability or infirmity arising after the original judgment;

(4) the dependent spouse's loss of a house or apartment;

(5) the dependent spouse's cohabitation with another;

(6) subsequent employment by the dependent spouse; and

(7) changes in federal income tax law.

[Lepis, supra, 83 N.J. at 151 (internal citations omitted).]

Temporary or anticipated changed circumstances do not warrant modification. Ibid. Rather, "[t]he party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Id. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)).

For modification of alimony, the movant must show that the alleged changed circumstances "have substantially impaired the ability to support himself or herself." Ibid. After a prima facie case of changed circumstances has been established, the court may order financial disclosure of both parties in order to reach an equitable and fair resolution. Id. at 157-58.

Once a prima facie case has been made and financial disclosures have been evaluated, "the court must decide whether to hold a hearing." Id. at 159. A trial judge has the discretion to decide the motion exclusively on the papers. Faucett v. Vasquez, 411 N.J. Super. 108, 128 (App. Div. 2009); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). "It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required." Shaw, supra, 138 N.J. Super. at 440. "In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded." Lepis, supra, 83 N.J. at 159.

The court does not determine whether there has been a substantial change in circumstances from the initial PSA; rather, the court looks at whether a change has occurred since the most recent modification. Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009) (court's focus in determining change in circumstances must "be on the length of time that had elapsed since the last milepost in [the] post-judgment proceedings"). Additionally, where, as here, the parties consented to an agreement, it should be given ample consideration. Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207 (App. Div. 2009); see alsoDeAngelis v. Rose, 320 N.J. Super.263, 281 (App. Div. 1999).

Our scope of review of the trial court's decision is limited. "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) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)); see also Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993). Each individual motion for modification is particularized to the facts of that case, 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.'" Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell, supra, 21 N.J. at 355). We will not disturb the trial court's decision on alimony unless we

conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.
 
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996)].

Here, the trial judge's finding that defendant failed to demonstrate the requisite change in circumstances was supported by substantial credible evidence in the record. First, the record reveals, and the trial judge found, that defendant's gross salary has not decreased since the 2005 modification.

Second, the record supports the trial judge's findings that defendant's field of expertise, as well as his employment and salary history, demonstrate that he has a substantial earning capacity. A supporting spouse's "property, capital assets, and 'capacity to earn the support awarded by diligent attention to his [or her] business' are all proper elements for consideration." Crews v. Crews, 164 N.J. 11, 27 (2000) (quoting Innes, supra, 117 N.J. at 503 (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950))). One major factor to be considered is the supporting spouse's ability to maintain the dependent spouse at the standard of living enjoyed during the marriage. Innes, supra, 117 N.J. at 504. Here, as a CFA with lengthy experience in high paying positions, it cannot be disputed defendant had the earning capacity to satisfy his support obligations.

Moreover, the record supports the finding that defendant did not make a prima facie showing that he was currently permanently incapable of obtaining employment at his potential higher earning capacity. Defendant made broad assertions that the job market was poor, there were limited positions for his specialized area, he was handicapped by his state of unemployment in finding future employment, and he could not locate employment in the entire United States despite diligent efforts. However, in the record provided, to show his "diligent efforts," defendant submitted scant documentation, most of which the judge found to be "duplicative," "communications between acquaintances," and emails with "tenuous relevance."2 "[I]t is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances." Donnelley, supra, 405 N.J. Super. at 130 n.5. Defendant has not done so here.

Additionally, defendant's claim of increased expenses in Germany does not amount to a prima facie case of change in circumstances. The judge noted that defendant provided "a small picture (but not complete picture) of his expenses in his Reply Certification[.]" Defendant's certification contains only five lines to explain the $4731 per month in expenses he listed in his case information statement (CIS). Further, defendant has not provided complete income tax returns, but included only the front page of each tax return for 2005 through 2010. A mere listing of purported expenses is insufficient to meet defendant's burden of proof. Accardi v. Accardi, 369 N.J. Super. 75, 87 (App. Div. 2004). Moreover, these expenses arose due to defendant's relocation to Germany, and he has not demonstrated the necessity for leaving the country.

We agree with defendant that the trial judge should not have mandated defendant to provide his 2011 tax return and other documents that did not yet exist.3 However, the judge did not base his decision on the absence of these documents. The judge merely stated that he could have dismissed defendant's case as procedurally deficient, but went on to write a lengthy opinion detailing the reasoning for his denial of defendant's motion based upon the applicable law.

Since defendant failed to make a prima facie showing of change in circumstances, a hearing was not warranted. Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010). While the parties dispute many facts in this case, none of the disputed facts bore on the ultimate conclusion that defendant had not made a prima facie case for a substantial change in circumstances warranting a reduction or elimination of his alimony or child support. We are convinced that the trial judge did not abuse his discretion in making his findings, which evidenced a thorough review of the record and consideration of the proofs as a whole. See Heinl, supra, 287 N.J. Super. at 345.

Defendant also contends that the judge erred in failing to determine an emancipation date for his oldest child. We disagree.

A child reaching the majority age of eighteen is prima facie evidence of emancipation; however, each case requires a fact sensitive analysis. Baldino v. Baldino, 241 N.J. Super. 414, 418 (Ch. Div. 1990); N.J.S.A. 9:17B-3. The question is whether the child has "moved beyond the sphere of influence of [his or] her parents." Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999) (internal quotation marks omitted).

The trial judge determined that since the child was in college, he could not be deemed emancipated based on the terms specifically laid out in the parties' PSA. The judge deemed defendant's motion premature and stated that he could not provide a schedule for future emancipation as the standards for such a review are fact sensitive. The judge also declined to reduce defendant's child support obligation based upon defendant's failure to provide a prima facie case of changed circumstances. Finding no abuse of discretion, we see no reason to overturn the trial judge's findings and conclusions on this issue.

In sum, we are in accord with the trial judge that defendant failed to make a prima facie case of change in circumstances warranting reduction or elimination of his support obligations. Defendant's income remains comparable to the amount he claimed he was making in 2005. Additionally, he has a substantial earning capacity, and has not shown that he was or is incapable of procuring a higher paying position in this country.

Defendant's remaining arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Defendant disclosed for the first time in his 2012 motion for reconsideration that, including bonuses, he had anticipated making $228,000 per year.

2 Those records have not been provided to this court for review, and the trial judge's findings are entitled to our deference. See Larbig, supra, 384 N.J. Super. at 21.

3 See Pressler and Verniero, Current N.J. Court Rules, Appendix V to R. 5:5-2, "Family Case Information Statement" (2014) (requiring only the most recent tax returns).