TONYA G. KNOX v. RODERICK B. KNOX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0144-15T3

TONYA G. KNOX,

Plaintiff-Respondent,

v.

RODERICK B. KNOX,

Defendant-Appellant.

________________________________

July 22, 2016

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-694-07.

Roderick B. Knox, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In these two appeals, calendared back-to-back and consolidated for purposes of this opinion, defendant Roderick Knox appeals from a June 30, 2014 order, following a plenary hearing, which reduced his alimony obligation by $300 per month for thirty-six months. Defendant also challenges the trial court's April 15, 2015 order denying his motion for reconsideration, and a July 24, 2015 order permitting plaintiff Tonya Knox to claim one of the party's children as a tax deduction on her 2014 tax return. We affirm all three orders.

We derive the following facts from the record. Pursuant to the parties' April 7, 2008 Dual Judgment of Divorce (DJOD), defendant was required to pay plaintiff $525 per week in alimony.1 Defendant was employed as a firefighter at the time of the divorce. On January 20, 2011, the parties agreed to reduce defendant's alimony obligation to $275 per week effective December 21, 2010, on the condition that defendant pay plaintiff an additional $12,000 in a lump sum every February when he received his income tax return.

Less than one month later, defendant filed a motion seeking to suspend his support obligation. Defendant explained that he had been charged with a criminal offense and suspended from this job without pay on February 19, 2011. The court granted defendant's motion and suspended his obligation to pay alimony for ninety days, with the unpaid alimony continuing to accrue as arrears. Thereafter, defendant filed a series of motions seeking continuations of the suspended payments. The court granted these motions.2

In late 2012, defendant filed a motion to terminate his alimony obligation based on his assertion that plaintiff was cohabiting with her boyfriend. The court found that defendant had made a prima facie case of cohabitation and held a plenary hearing on the issue. After the hearing, the court rendered a thorough written decision on January 25, 2013, finding that plaintiff and her boyfriend did stay together off and on for thirty-six months "over the past several years[.]"

During that time, the court found that plaintiff was in danger of losing her home because, when she purchased it after the marriage ended, her mortgage payments were based upon her continued receipt of alimony. When the alimony was suspended, plaintiff's boyfriend gave her some money each month so she could make the mortgage payments. However, the court found that plaintiff and her boyfriend did not own any property together, and plaintiff's boyfriend always maintained his own residence, where he lived with his own child. Under these circumstances, the court denied defendant's motion to terminate his alimony obligation, but ordered the parties to exchange discovery so that a determination could be made as to the extent of any economic benefit plaintiff received from the boyfriend's financial contributions toward her mortgage.

The matter was then transferred to Judge Joseph Marczyk, who held another plenary hearing on April 21, 2014. In a thorough oral opinion rendered on June 30, 2014, Judge Marczyk found plaintiff's testimony concerning her relationship with her boyfriend to be credible and that, while the couple spent many overnights together during the thirty-six months identified by the prior judge, they still maintained separate homes and were responsible for their own expenses. The judge further found that the boyfriend gave plaintiff some money each month only so she could make her mortgage payment when defendant stopped paying alimony.

Based upon these findings, the judge issued an order crediting defendant with $300 per month for the thirty-six month period in which plaintiff's boyfriend contributed to her mortgage payments. This constituted a $10,800 credit for defendant. The judge also found that defendant had failed to make any of the annual lump sum payments due to plaintiff under the prior orders. These payments totaled $42,000. After subtracting defendant's $10,800 credit from this total, the judge ruled that the $31,200 remaining due should be added to defendant's existing alimony arrears. Because plaintiff and her boyfriend had recently married, the judge also terminated defendant's ongoing alimony obligation as of June 20, 2014.

Defendant thereafter filed a motion for reconsideration. Following oral argument, Judge Marczyk found that, because plaintiff married her boyfriend on April 22, 2014, alimony should have been terminated on that date, rather than June 20, 2014. Thus, the judge granted defendant a $4,200 credit toward his alimony arrears for these two months. In all other respects, the judge denied defendant's motion.

By this time, defendant had filed yet another motion, this one seeking to permit him to claim the parties' unemancipated child as a tax exemption on his 2014 tax return. As noted above, the parties have two children, Susan and Mary.3 On February 11, 2014, Judge Marczyk entered an order addressing the tax deduction issue. In pertinent part, this order stated

The parties agree to split the children for purposes of tax deductions beginning in the tax year 2013, with [defendant] claiming [Susan] and [plaintiff] declaring [Mary]. Thereafter, the parties will rotate declaring the children on their taxes. Once [Mary, the older child,] is emancipated, [defendant] will declare [Susan] during year one and will rotate with [plaintiff] every year thereafter.

Pursuant to this order, defendant claimed Susan as a tax dependent in 2013, and plaintiff claimed Mary. In 2014, it was defendant's turn to claim Mary. However, Mary got married and, as a result, was emancipated. Because he could no longer claim Mary as a dependent in 2014, defendant asked that he be permitted to claim Susan for a second year in a row.

The matter was transferred to Judge Michael Blee. Following oral argument, the judge denied defendant's motion. In a thorough written opinion, the judge found that under the terms of the February 11, 2014 order, plaintiff was entitled to claim Susan in 2014, with defendant claiming her in 2015, and the parties thereafter rotating the exemption until Susan was emancipated.

These two appeals followed. Based upon our review of the record and the applicable law, we affirm substantially for the reasons cogently expressed by Judges Marczyk and Blee in their respective opinions.4 We add only the following brief comments.

The scope of our review of the Family Part's orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Id. at 413. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), "we 'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412). We will only reverse the judge's decision when it is necessary to "'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

Applying these standards, we discern no basis for disturbing Judge Marczyk's decision concerning the credit he gave defendant for the contributions plaintiff's then-boyfriend gave her during the months when defendant was not making any alimony payments. It is well established that cohabitation is a changed circumstance that could warrant a modification of an alimony obligation. Gayet v. Gayet, 92 N.J. 149, 155 (1983). If the payor spouse can prove cohabitation of the dependent spouse, the payor can seek a reduction in alimony by showing either the dependent spouse's economic needs have decreased due to the financial assistance of another or by showing the payor's alimony payments are subsidizing the third-party cohabitant. Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).

Here, the judge found plaintiff credibly testified that although she and her boyfriend spent time together in her home during the thirty-six months in question, they each maintained their own independent households. The boyfriend only gave plaintiff money when she was unable to make her mortgage payments after defendant stopped paying her alimony. We defer to the judge's credibility finding. Cesare, supra, 154 N.J. at 411. Under these circumstances, the judge's determination that defendant should receive a $300 per month credit toward his alimony arrears was fully supported by sufficient credible evidence in the record.

We also conclude that Judge Marczyk properly denied defendant's motion for reconsideration. As an appellate court, we review the denial of a motion for reconsideration to determine whether the trial court abused its discretionary authority. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Reconsideration should only be used "for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence[.]" Id. at 384 (quoting D Atria v. D Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).

As noted above, Judge Marczyk fully considered all of defendant's contentions in his comprehensive oral opinion accompanying the June 30, 2014 order, and his rulings are well supported by the record. Therefore, the judge appropriately denied defendant's motion for reconsideration.

Finally, defendant argues that Judge Blee erred by permitting plaintiff to claim Susan as a dependent on her 2014 tax return. He asserts that he was actually the child's parent of primary residence and, as such, was entitled to claim her as a dependent. We disagree.

It is well settled that the Family Part has "the power to exercise authority to effectively allocate exemptions through use of its equitable power." Gwodz v. Gwodz, 234 N.J. Super. 56, 62 (App. Div. 1989). As memorialized in the February 11, 2014 order, the parties agreed to rotate the children each year, with plaintiff claiming Susan in 2014. Thus, Judge Blee properly denied defendant's request to claim the child two years in a row.

Affirmed.

1 The parties have two children, and the DJOD also required defendant to pay plaintiff child support.

2 Defendant asserts that he "was eventually vindicated [concerning the criminal charges] following a jury trial[.]" However, the record is unclear as to when this occurred.

3 We use fictitious names for the children to protect their privacy.

4 Pursuant to Rule 2:5-4(a), an appellant must provide this court with "the stenographic transcript[s]" of the proceedings for which review is sought. Here, plaintiff has not filed copies of either of the two plenary hearings conducted on his motion to terminate his alimony obligation. This deficiency hinders our ability to review defendant's challenge to the June 30, 2014, and April 15, 2015 orders, and would ordinarily leave us no alternative but to affirm the June 30, 2014 and April 15, 2015 orders solely on that basis. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004). However, we rely upon the detailed opinions rendered by the judges for our disposition of the issues in this case.