DOREEN J. STANKIEWICZ v. CARTER G. CALIFRI, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOREEN J. STANKIEWICZ,

Plaintiff-Respondent,

v.

CARTER G. CALIFRI, JR.,

Defendant-Appellant.

__________________________

December 17, 2015

Argued September 16, 2015 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-242-07.

Damiano M. Fracasso argued the cause for appellant.

Robert M. Rich argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant Carter G. Califri, Jr. appeals from the August 15, 2014 Family Part order, which denied his motion for a retroactive modification of alimony, and from the October 22, 2014 order, which denied his motion for reconsideration. We affirm both orders.

We derive the following facts from the record. Defendant and plaintiff Doreen Stankiewicz were married in March 1987, and divorced in April 2008. The parties' April 1, 2008 property settlement agreement (PSA), which was incorporated into the April 2, 2008 dual final judgment of divorce (DFJOD), required defendant to pay alimony in the amount of $900 per week for fifteen years. The PSA also required defendant to pay child support for the parties' three children and granted them joint custody with plaintiff having residential custody. According to the PSA, defendant's support obligation was calculated based on his "actual" 2007 income of $156,416, not, as defendant later claimed, on estimated earnings of $163,000 or $206,961.22 for the year 2008. The PSA also imputed income to plaintiff in the amount of $15,600 per year.

The PSA contained an anti-Lepis1 clause whereby defendant's alimony obligation was non-modifiable for the first seven years except in these limited circumstances: "serious illness, involuntary termination of employment for a period of three or more months, such other substantial change in circumstances beyond the control of a party, death of either party or marriage by the [plaintiff]." According to plaintiff, she agreed to the anti-Lepis clause in consideration for accepting term alimony instead of permanent alimony.

The PSA provided for the sale of the marital home, with defendant having the right to purchase plaintiff's interest. The PSA permitted plaintiff to reside in the home until it was sold, and specified that "[t]he property shall remain on the market and the parties will maintain the financial status quo until the property is sold and/or [plaintiff] vacates [the] marital home as to the support [defendant] is currently paying and the bills [plaintiff] is paying with said support except as modified herein." The PSA did not specify that the sale or purchase of the marital home within the seven-year alimony non-modification period would constitute one of the circumstances warranting an early modification.

In December 2009, defendant filed a motion for a modification of alimony based on changed circumstances resulting from his reduction in income. He certified that he was involuntarily unemployed from July to December 2008, and obtained employment in January 2009, at a salary of $125,000 per year, plus a potential fifteen percent bonus. He asserted that his new salary was lower than his estimated earnings of $163,000 per year for 2008, on which his alimony obligation was calculated under the PSA. He also argued that plaintiff's income had increased since the time of the divorce.

In opposition, plaintiff argued that defendant was voluntarily unemployed and there were no changed circumstances warranting an early modification of alimony. She admitted that her income had increased to $29,120 per year, but asserted that the anti-Lepis clause was based, in part, on affording her time to obtain sufficient employment during the seven-year non-modification period to support herself.

On January 8, 2010, the court denied the motion without prejudice. The court acknowledged that the PSA permitted an alimony modification if defendant established one of the limited circumstances, but concluded that defendant was now employed and it was unclear whether he had a permanent substantial reduction in income that was beyond his control. The court permitted the parties to engage in financial discovery and permitted defendant to renew his motion "after sufficient time has passed to demonstrate that his reduction in income [was] permanent[.]" The record does not reveal that the parties engaged in discovery, but does reveal that defendant did not seek reconsideration or file an appeal.

In August 2010, defendant purchased plaintiff's interest in the marital home for $210,000 and obtained a mortgage to finance the purchase.2 His gross income thereafter increased to $173,966.48 in 2011, and $177,705.43 in 2012. From December 2012 to May 2013, he was unemployed; from July 2013 to September 2013 he earned $50,000 from a consulting job; and from September 2013 to February 2014, he was again unemployed. Despite having purchased the marital home and having been twice unemployed for a period of more than three months, defendant did not file a motion for a modification of alimony.

In February 2014, defendant became employed at a salary of $150,000 per year. He failed to make any child support or alimony payments and his arrears totaled $48,804.74 as of May 6, 2014. As a result, the Sussex County Probation Department filed an enforcement motion. On May 6, 2014, the court ordered defendant's wages garnished to pay child support in the amount of $224 per month, alimony in the amount of $900 per month, and $50 per month for the arrears.

In an apparent response to the court's ruling, on May 19, 2014, defendant filed a motion for a modification of alimony to $130 per week, retroactive to the date he purchased the marital home. He also sought a credit for overpayments.3 He asserted for the first time that he was "on track" to earn $206,961.22 in 2008, and this amount was "what the 'ability to pay' component of spousal support was based on at the time of divorce." He concluded that his permanent reduction in income from $206,961.22 to $150,000 constituted a permanent change in circumstance warranting an early modification of alimony under the PSA.

Defendant also asserted for the first time that alimony was calculated based on the funds plaintiff needed to pay for the costs of the marital home. He argued that because he purchased the marital home, plaintiff's need for alimony to pay her shelter expenses significantly and permanently decreased, whereas his shelter expenses materially increased and he now had substantial debt. He also argued that plaintiff's income had increased to approximately $40,000 per year, she received over $215,000 in equitable distribution and had improved financial circumstances, and only two of the children were living with her.

In opposition, plaintiff certified that defendant paid no alimony and child support while he was employed, and he was not forced to purchase the marital home and could have purchased a less expensive home and lowered his shelter expenses, as she did. Plaintiff stated she was fifty-three years old, had serious medical problems, and had a limited number of years left to earn money. Plaintiff submitted an updated case information statement, which showed that although her income had increased, she still had considerable shelter and personal expenses. Plaintiff did not file a cross-motion.

Defendant claimed that the court barred him from filing a reply certification. However, he filed a twenty-two page reply brief that addressed plaintiff's opposition. On August 15, 2014, the court denied defendant's motion without prejudice. The court declined to consider defendant's reply brief, stating, incorrectly, that a reply was only appropriate where a cross-motion was filed. The court found that defendant was in good health and that although he experienced periods of unemployment, he was currently employed, earning $150,000 per year. The court enforced the anti-Lepis provision in the PSA and concluded that defendant failed to establish any of the circumstances warranting an early modification of alimony.

Defendant filed a motion for reconsideration, arguing that the court erred by: (1) barring his reply certification, failing to consider his reply brief, and considering plaintiff's untimely filed opposition papers;4 (2) overlooking the law of the case set forth in the January 8, 2010 order, which entitled him to a modification of alimony upon proving a permanent reduction in income; (3) failing to find that he was involuntarily unemployed for more than ninety days between July 2008 and January 2009, December 2012 and May 2013, and September 2013 to February 2014; (4) overlooking that the PSA required modification upon the sale of the marital home; and (5) overlooking that Lepis prohibits inequitable and unjust enforcement of inter-spousal agreements where the supported spouse's income increased since the time of the divorce. Defendant argued that he had a permanent reduction in income from $206,961.22 per year to $150,000 and that plaintiff's income increased since the time of the divorce.

On October 22, 2014, the court denied the motion. The court reviewed defendant's reply brief and found it would not have changed the outcome, as it merely reiterated arguments that the court had previously rejected. The court acknowledged that Rule 5:5-4(c) required plaintiff to file her opposition no later than fifteen days before the return date, but concluded that Rule 1:1-2(a) permitted a relaxation of the time period. This appeal followed. On appeal, defendant reiterates the arguments made before the trial court.

Although defendant was entitled to file a reply certification, see R. 5:5-4(b) (permitting the filing of an answer or response to an opposing affidavit), assuming he was barred from filing one, the error was unfortunate, but does not warrant reversal. Defendant filed a lengthy reply brief that addressed plaintiff's opposition. The court reviewed the brief in considering the motion for reconsideration. Accordingly, defendant was afforded a full opportunity to present all of his arguments. Our review of the reply brief confirms the court's conclusion that it would not have changed the outcome.

We have considered defendant's argument about the late filing of plaintiff's opposition and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that the court properly exercised its discretion pursuant to Rule 1:1-2(a) to permit the late filing and afford plaintiff the opportunity to respond to a motion that could have resulted in an eighty percent decrease in her alimony payments and significantly impacted her ability to support herself. We, thus, focus on whether defendant was entitled to a downward modification of alimony.

"Courts have the equitable power to establish alimony and support orders in connection with a pending matrimonial action, or after a judgment of divorce or maintenance, and to revise such orders as circumstances may require." Crews v. Crews, 164 N.J. 11, 24 (2000) (citing Lepis, supra, 83 N.J. at 145). "As a result of this judicial authority, alimony and support orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of 'changed circumstances.'" Lepis, supra, 83 N.J. at 146 (citations omitted). It "reflects 'the important policy of recognizing that marriage is an adaptive economic and social partnership.'" Glass v. Glass, 366 N.J. Super. 357, 369 (App. Div.) (quoting Cox v. Cox, 335 N.J. Super. 465, 479 (App. Div. 2000)), certif. denied, 180 N.J. 354 (2004). "Imposing an obligation by judicial mandate or agreeing to support 'permanently' reflects the judicial and, where agreed upon, personal recognition of the marital relationship and partnership." Id. at 370. Even if the parties enter an agreement about alimony, a former spouse may seek judicial review or modification of the spousal support based upon a showing of changed circumstances. Ibid. (citing Miller v. Miller, 160 N.J 408, 419 (1999)).

A party seeking a modification of alimony must make a prima facie showing of changed circumstances that have substantially impaired his or her ability to support himself or herself. Lepis, supra, 83 N.J. at 157. There are several factors that may warrant a modification of alimony

(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.

[Id. at 151 (citations omitted).]

A trial judge has broad discretion in reviewing an application to modify alimony. Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) (citing N.J.S.A. 2A:34-23). "[E]very alimony application 'rests upon its own particular footing and [we] must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). For us to vacate a trial court's decision to modify alimony,

[we] must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or [we] 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.

[Id. at 360 (citations omitted).]

"Consequently, when [we] conclude[] there is satisfactory evidentiary support for the trial court's findings, '[our] task is complete and [we] should not disturb the result[.]'" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)). "'Deference is appropriately accorded to factfinding; however, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.'" Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "[L]egal conclusions are always reviewed de novo." Id. at 433-34 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we continue our review.

Other than defendant's self-serving statement, there is no competent evidence in the record showing that his alimony obligation was calculated on his estimated income of $206,961.22 for 2008. Rather, the PSA confirms that defendant's support obligation was calculated based on his "actual" 2007 income of $156,416. Defendant's income was $150,000 per year at the time of his second motion for a modification of alimony. Consequently, he failed to prove that he had a permanent reduction in income that substantially impaired his ability to support himself.

Defendant also failed to prove that his periods of unemployment warranted a modification of alimony. The PSA permitted a modification upon "involuntary termination of employment for a period of three or more months." Although defendant established that he was "involuntarily terminated" from his employment in July 2008 and December 2012, he did not establish that he was "involuntarily terminated" in September 2013. Nor did defendant explain why he failed to secure any employment during his periods of unemployment, and he provided no evidence whatsoever of his attempts to secure employment or his employability. Consequently, there is nothing in the record indicating that defendant was involuntarily unemployed. "'[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one's family.'" Elrom, supra, 439 N.J. Super. at 436 (alteration in original) (quoting Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982)).

In addition, the PSA did not include the sale or purchase of the marital home as a circumstance warranting an early modification. Rather, the PSA contemplated the sale or purchase and, read as a whole, it required defendant to prove one of the limited circumstances for an early modification whether or not plaintiff continued residing in the marital home. Accordingly, a modification of alimony was not warranted based on defendant's purchase of the marital home.

Finally, plaintiff's increased income did not render enforcement of the PSA inequitable and unjust. Parties may establish their own standards for modification of an alimony obligation, and those standards, "where not unwarranted under the circumstances, will be enforced by the court irrespective of the need-based guidelines of Lepis, which are applied when there are no such standards." Morris v. Morris, 263 N.J. Super. 237, 245-46 (App. Div. 1993). However, "[i]f circumstances have made the parties' standards unreasonable, they can in extreme cases be modified." Id. at 246. "In less extreme cases . . . the payments can be accrued with enforcement conditioned upon the payment of reasonable periodic payments." Ibid. Thus, a court "should endeavor to carry out the agreement of the parties on a reasonable basis." Ibid.

Here, the parties set the standard for the modification of defendant's alimony obligation during the first seven years after the divorce. That standard was not unwarranted under the circumstances of this case, and this is not an extreme case warranting the disregard of the PSA. As previously stated, defendant did not prove that he suffered a permanent reduction in income that substantially impaired his ability to support himself. Although plaintiff's income increased since the divorce, the PSA contemplated that she would return to work after the divorce and earn income in addition to defendant's alimony payments to support herself. Indeed, the PSA specifically stated that "[t]he amount of [a]limony and child support payable herein will not allow [plaintiff] to li[v]e a lifestyle reasonably comparable to the marital lifestyle." Thus, for plaintiff to be able to live a lifestyle comparable to that during the marriage, she had to earn sufficient income in addition to defendant's alimony payments. We conclude that enforcement of the PSA under the circumstances of this case was not inequitable and unjust.

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

2 Plaintiff purchased a home for $277,500, and obtained a mortgage as well to finance the purchase.

3 Defendant also sought other relief not pertinent to this appeal.

4 Plaintiff filed her opposition papers four days late.