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December 28, 2016


Submitted November 29, 2016 Decided

Before Judges Fisher, Ostrer and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-529-09.

Ulrichsen Rosen & Freed L.L.C., attorneys for appellant (Derek M. Freed, of counsel; Alexandra M. Price, on the brief).

Oswald & Zoschak, P.C., attorneys for respondent (Rebecca R. Faulkner, on the brief).


The parties were married in 1994, had one child, who was born in 1995, and divorced in 2010. The 2010 judgment of divorce incorporated a property settlement agreement, which, among other things, imposed on plaintiff Stephen Tomicki an $800 per month alimony obligation in favor of defendant Mary Tomicki. In this appeal, we consider Stephen's arguments concerning a number of rulings made by the Family judge that are contained in orders entered on April 10, and May 11, 2015.

In reviewing such matters we "give due recognition to the wide discretion which our law rightly affords" to judges who deal with such matters. Martindell v. Martindell, 21 N.J. 341, 355 (1956); see also Larbig v. Larbig, 384 N.J. Super. 17, 21, 23 (App. Div. 2006). We will intervene in limited circumstances, such as when a family judge's conclusions are "clearly mistaken or wide of the mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). When, however, a family judge departs from accepted legal principles in determining whether further exploration is warranted through discovery and an evidentiary hearing, we will step in to ensure the modification, vacation or further examination of orders or agreements that no longer fairly or equitably govern parties' relationships. Here, Stephen complains of the denial of his requests for: (1) termination of the alimony obligation; (2) emancipation of the parties' daughter; (3) relief regarding Mary's alleged failure to reimburse her share of timeshare maintenance fees; (4) production of documentation regarding reimbursed medical expenses; and (5) reimbursement of $4616 to compensate for overpayment of Mary's share of Stephen's pension.

First, in seeking termination of his alimony obligation, Stephen asserted in the trial court that Mary's annual income had increased from $67,000 to $96,000. In an order entered on May 30, 2014, another judge concluded that this allegation, if ultimately supported, represented a prima facie change in circumstances that warranted further examination; that judge, however, denied relief without prejudice because Stephen failed to submit a case information statement in accordance with Rule 5:5-4.1 In light of this disposition, Stephen moved again with an updated case information statement; he certified, among other things, that: he was unemployable; suffers chronic pain in his shoulder and back; at the time of divorce Mary's annual income was $67,000 and was, at the time of the motion, $96,000; Mary's expenses decreased when her son and daughter-in-law moved out of her home; Mary lived an exorbitant lifestyle; and Mary benefited or had the potential to benefit from her incapacitated mother's large estate. In response, Mary claimed Stephen's allegations about her financial status were "untrue and unfounded" but provided no clear evidence to refute his allegations.

The judge nonetheless denied an evidentiary hearing, apparently doubting the credibility or adequacy of Stephen's certifications about Mary's finances. To be sure, there is uncertainty in the record about the true state of the parties' financial affairs and status. But courts are obligated to appreciate that in some circumstances a movant may be initially unable to provide the type of evidence that will ultimately shed sufficient illumination of the issues. See Stamberg v. Stamberg, 302 N.J. Super. 35, 43-44 (App. Div. 1997). There is no reason to believe Stephen provided less information than that to which he had access; until he secures the right to seek discovery, which does not arise until the court authorizes it, his ability to amplify on his contentions remains hampered. Courts should be cognizant that an onerous requirement regarding a movant's showing may impose an inequitable Catch-22 which bars access to the very discovery necessary to present a prima facie case. We further observe that an application to modify or terminate alimony does not center solely on the movant's financial circumstances but entails consideration, when relevant, of modifications in both parties' positions. Ibid.; see also Donnelly v. Donnelly, 405 N.J. Super. 117, 131-32 (App. Div. 2009). After close examination, we are satisfied that Stephen established a prima facie case of changed circumstances and we remand for entry of a discovery order to permit examination of the parties' financial circumstances; if, after discovery is exchanged, there are presented genuine factual disputes, the judge should conduct an evidentiary hearing.

Second, Stephen asserted in his moving papers that the parties' daughter was emancipated. The parties' property settlement agreement defined emancipation as occurring when the child reached the age of eighteen or completed high school, "whichever last occurs, unless the child continues [her] education after high school by attending post high school education[.]" Stephen claimed in his moving papers that their child, who was born in October 1995, was more than eighteen years old and, in Stephen's view, not expected to attend college following her high school graduation. The law recognizes that a child's eighteenth birthday constitutes "prima facie, but not conclusive, proof of emancipation." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); see also N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 296 (App. Div.), certif. denied, 218 N.J. 275 (2014). The question chiefly turns on whether the child "has moved beyond the sphere of [the parents'] influence." Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999).

Here, Mary responded to Stephen's motion by alleging that the child was enrolled at Drexel University and remained dependent upon her and Mary provided some additional indicia to support that contention. The motion judge, however, determined that the question of emancipation should at least await more definite proof of the child's enrollment. We approach this dispute by wondering why a child's college enrollment should be so mysterious. Certainly there may be times, brought upon by geographic or emotional distance between the movant and the child, when a movant lacks sufficient information to support such an application; and often the opposing parent may make strategic use of the moving parent's lack of information by choosing to be less than forthcoming in responding to the motion. This may be one such instance. In any event, we are satisfied that there is sufficient doubt about the child's alleged continued enrollment at Drexel as to warrant further inquiry. We, therefore, vacate the order denying emancipation and remand for discovery and, if necessary depending upon what discovery reveals, an evidentiary hearing on this issue. We would hope and expect, however, that a modicum of discovery will reveal sufficient information from which a firm and definite determination about emancipation may be reached without the trouble and expense of an evidentiary hearing.

Third, with regard to the parties' timeshare, Stephen complains of that part of the April 10, 2015 order that departed from another judge's order entered on May 30, 2014. By way of their property settlement agreement, the parties agreed they would continue to jointly own the timeshare and equally divide the resulting monthly fees. They also agreed that "the other party has the right to either force the sale of the timeshare or shall be entitled to the sole use of the time share in the defaulting party's designated year until such time as the defaulting party remedies the outstanding sums owed." In light of a past default by Mary, the earlier order directed that she was obligated to pay -- within thirty days -- $1492; if paid, Stephen was required to convey his interest to Mary but if those events did not occur -- and they did not, as Mary conceded -- then the timeshare was to be sold; both parties were further directed to cooperate in its sale.

The April 10, 2015 order merely restated these obligations. Any discernible argument as to why this order incorrectly enforces the parties' obligations regarding the timeshare is without sufficient merit to warrant further discussion on this point. R. 2:11-3(e)(1)(E). We affirm this aspect of the April 10, 2015 order.

Fourth, Stephen argues that the motion judge erroneously resolved disputed facts regarding the availability of archived reimbursed health insurance claims. In his April 10, 2015 order, the judge denied enforcement of the June 7, 2013 order, which required that defendant provide all copies of reimbursed medical claims. The order under review does not free Mary of that obligation and, as her own certification demonstrates, the information would seem to be available. She remains obligated by the June 7, 2013 order, although her ability to comply may require information from Stephen. Again, with a modicum of cooperation, the parties could undoubtedly resolve this problem; our courts should not be obligated to conduct an evidentiary hearing any time parties choose stubbornness over cooperation. We agree, as the judge implicitly concluded, that relief should not be afforded until the parties in good faith exhausted all reasonable avenues of cooperation in obtaining the relevant information.

Fifth, Stephen contends that the judge erred in failing to correct a mistake contained in an earlier order that allegedly resulted in Mary receiving more than she was entitled from his pension. The judge, by way of the April 10, 2015 order, stated that Stephen's submission was incomplete. Mary, in responding to this contention in her appeal brief, argues that the judge was apparently missing the last page of Stephen's certification and, therefore, the judge properly denied relief. This is yet another issue that never should have gotten so far. In remanding on this point, we direct the parties to provide the judge with whatever was missing, and we direct the judge to rule on the merits of that part of the motion. If the judge finds a factual dispute, then that dispute should be resolved following discovery and, if necessary, an evidentiary hearing.

We lastly find Stephen's argument that we should direct that a different judge hereafter preside over the matter to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

1 Contrary to Stephen's contention, this ruling did not remain inviolate by way of the law of the case doctrine. Because of Stephen's failure to comply with Rule 5:5-4, the judge's comments about the sufficiency of Stephen's allegations to warrant an evidentiary hearing was mere dictum; moreover, the prior order in this regard was an interlocutory order that is, pursuant to Rule 4:42-2, always open to reconsideration in the interests of justice.

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