NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2184-16T1
DONNAJEAN KAFADER, f/k/a
LOUIS G. NAVAS,
Submitted December 4, 2017 – Decided January 18, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FM-15-1453-00.
Goldstein Law Group, LLC, attorneys for
appellant (Edward A. Wojciechowski, of counsel
and on the brief).
Respondent has not filed a brief.
Defendant Louis G. Navas appeals from a Family Part order
denying his motion to terminate or modify his alimony obligation
to his ex-wife, Donnajean Kafader. We reverse.
After seventeen years of marriage, plaintiff and defendant
divorced in August 2000. Their property settlement agreement
(PSA) required defendant to pay plaintiff $150 per week in
permanent alimony "until the death of either party or the
remarriage of [plaintiff]."
Defendant unsuccessfully moved to modify or terminate the
alimony obligation in 2003, 2004 and 2006. The 2003 and 2004
orders state that defendant's motions were denied following
hearings. Defendant's 2006 motion was denied because he failed
to: file a case information statement; present any evidence showing
his efforts to obtain employment; provide documentation concerning
his alleged health problems; and supply complete tax returns.
In June 2016, defendant moved to terminate or modify his
alimony obligation due to an alleged "significant change in
circumstances and inability to pay." He claimed a significant
reduction in his income and health issues, and that plaintiff was
cohabiting with a paramour.
In his supporting certifications, defendant detailed his
claim that plaintiff was cohabiting, explained his purported
reduction in income and described his alleged health issues. He
provided his federal and state tax returns for the years 2000 to
2015, a case information statement, and three doctor's letters
describing various health issues. He also submitted photographs
of plaintiff and her alleged paramour together.
Plaintiff filed opposition and a cross-motion.1 In her
certification, plaintiff denied cohabiting with the alleged
paramour, and asserted defendant misrepresented his income in his
prior motions and was doing so again. Plaintiff claimed defendant
was self-employed, derived his income solely from the operation
of his construction company, and artificially and inaccurately
reduced his alleged personal income by paying personal expenses
with corporate funds.
After oral argument, the court found defendant failed to
demonstrate changed circumstances sufficient to permit a
modification of his alimony obligation, and denied defendant's
motion without a plenary hearing. The court found that because
the PSA listed only the death of the parties and plaintiff's
remarriage as the bases upon which alimony could be terminated,
the parties intentionally excluded cohabitation as grounds for
modification. Relying on our Supreme Court's decision in Quinn
225 N.J. 34 (2016), the court concluded it must enforce
We do not address plaintiff's cross-motion. The court denied
the relief requested and plaintiff did not appeal from the court's
the PSA and, based on its interpretation of the PSA, modification
of alimony based on cohabitation was not authorized.
The court also rejected defendant's reliance on his purported
health issues because the doctor's notes were "stale" and otherwise
did not establish the issues interfered with defendant's ability
to work or earn an income.
The court rejected defendant's contention that his alleged
reduced income constituted a changed circumstance warranting
modification of alimony. In its oral opinion, the court found
that defendant, as a self-employed contractor, was required to
provide more detailed financial information to support his claimed
reduction in income. The court's order states defendant produced
"some of the documents necessary to meet the prima facie standard"
of changed circumstances and that plaintiff "points to documents"
which defendant did not submit that would "aid the [c]ourt in
determining the viability of [d]efendant's position." The
court, however, did not identify the information it found lacking.
The court also concluded it did "not have the financial accounting
expertise" to determine, based on defendant's submissions, if he
made a prima facie showing of changed circumstances.
The court denied defendant's motion without prejudice. This
Defendant makes the following arguments on appeal:
THE TRIAL COURT ERRED AND MISINTERPRETED QUINN
225 N.J. 34 (2016), BY HOLDING THAT
SINCE THE PARTIES' PROPERTY SETTLEMENT DID NOT
PROVIDE FOR TERMINATION OF ALIMONY BASED UPON
COHABITATION, COHABITATION WAS NOT AN ISSUE
IN THE CASE IN ANY RESPECT, COMPLETELY
IGNORING THE LAW ON WAIVERS.
THE TRIAL COURT ERRED IN FINDING THAT
DEFENDANT SUBMITTED SOME DOCUMENTS TO MEET A
PRIMA FACIE STANDARD UNDER LEPIS, BUT THAT
PLAINTIFF POINTED TO OTHER DOCUMENTS NOT
SUBMITTED WHICH WOULD AID THE COURT AND THUS
DENIED DEFENDANT'S MOTION AND A PLENARY
The decision to modify an alimony obligation "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
(2006). An alimony determination will not be overturned on appeal
absent an abuse of discretion. See Rolnick v. Rolnick,
Super. 343, 360 (App. Div. 1993) (holding that vacating a court's
findings as to modification of alimony requires a determination
"that the trial court clearly abused its discretion"). "An abuse
of discretion 'arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Milne v. Goldenberg,
Super. 184, 197 (App. Div. 2012) (citations omitted). "A trial
court's interpretation of the law and the legal consequences that
flow from established facts are not[, however,] entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm. of
140 N.J. 366, 378 (1995).
Consideration of a motion to modify alimony requires
application of the standard established by our Supreme Court in
Lepis v. Lepis,
83 N.J. 139 (1980). The moving party must first
make a prima facie showing that "changed circumstances have
substantially impaired the ability to support himself or herself."
Id. at 157. To determine whether there is a prima facie showing
of changed circumstances, a judge must consider the terms of the
order at issue and compare the facts as they were when that order
was entered with the facts as they are at the time of the motion.
See, e.g., Faucett v. Vasquez,
411 N.J. Super. 108, 129 (App. Div.
"There is . . . no brightline rule by which" a court measures
a change in circumstances. Larbig,
384 N.J. Super. at 23. "Each
and every motion to modify an alimony obligation '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.'" Donnelly v. Donnelly,
Super. 117, 127 (App. Div. 2009) (quoting Larbig,
384 N.J. Super.
at 24). If a prima facie showing is made, the court must then
determine if a plenary hearing is warranted. Lepis,
83 N.J. at
159; see also Crews v. Crews,
164 N.J. 11, 28 (2000) (noting the
party seeking modification must make a prima facie showing of
changed circumstances before being entitled to a hearing).
Here, defendant's motion was founded on three purported
changed circumstances: plaintiff's alleged cohabitation; his
health issues; and his claimed reduction in income. We address
in turn each of the alleged changes in circumstances upon which
The court did not decide whether defendant made a prima facie
showing that plaintiff cohabited, and instead determined
cohabitation was not an issue because the PSA did not expressly
list cohabitation as grounds for modification. Defendant contends
the court misapplied the principles in Quinn, where the Court held
in part that a PSA expressly providing for termination of alimony
upon the supported spouse's cohabitation is enforceable.
Unlike in Quinn, the court here was not presented with a
request to enforce a clearly stated PSA provision. The parties'
PSA does not directly bar modification of alimony based on
cohabitation. Instead, the court inferred the parties agreed
cohabitation would not provide grounds for alimony modification
because the PSA refers to only the death of the parties and
plaintiff's remarriage as grounds for alimony termination. In
Quinn, however, the Court observed that "[i]n the absence of an
agreement that permits the obligor former spouse to cease payment
of alimony, [it has] permitted a modification of alimony, including
cessation of alimony, in the event of post-divorce cohabitation .
. . ." Id. at 49; see also Lepis,
83 N.J. at 146 (citations
omitted) ("[A]limony . . . 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.'"). Thus, the Court recognized that in the absence
of an agreement concerning cohabitation, it may constitute a
changed circumstance supporting modification or termination of
225 N.J. at 49.
In our view, the court here erred by inferring the parties
agreed cohabitation would not constitute grounds supporting a
modification or termination of alimony. The PSA's language did
not compel such an inference. The PSA's silence on the issue of
cohabitation may have constituted a recognition that in the absence
of an express agreement, the law permits a supporting spouse to
rely on cohabitation as a changed circumstance supporting the
termination or modification of alimony. Ibid. We conclude the
court erred by determining the parties agreed plaintiff's
cohabitation would terminate alimony and that the holding in Quinn
precluded consideration of defendant's cohabitation claim.2 See
id. at 45 ("To the extent that there is any ambiguity in the
expression of the terms of a settlement agreement, a hearing may
be necessary to discern the intent of the parties at the time the
agreement was entered and to implement that intent.").
Nevertheless, the court correctly rejected defendant's claim.
The party moving for the modification of alimony has the burden
of presenting competent evidence establishing a prima facie case
of changed circumstances. See R. 1:6-6; Lepis,
83 N.J. at 157-
59. Defendant did not sustain that burden because his cohabitation
claim was supported by nothing more than hearsay statements
attributed to unidentified third-parties, and a few pictures
showing plaintiff and her alleged paramour together. He offered
no competent evidence showing plaintiff was cohabiting and
therefore failed to satisfy his burden of making a prima facie
showing of changed circumstances.
We decide only that the PSA does not require an inference that
the parties agreed cohabitation would not permit a modification
or termination of alimony. In the event defendant relies on
cohabitation in the future to support a request to modify or
terminate alimony, plaintiff is not precluded from presenting
evidence that the parties agreed cohabitation would not support a
modification or termination of alimony, and that the PSA's language
reflected that agreement. PSAs are governed by the general
principles of contract interpretation. Barr v. Barr,
Super. 18, 31 (2011).
Defendant similarly failed to present competent evidence
showing how his health issues affected his ability to work or earn
his prior level of income. Defendant submitted three doctor's
letters in support of his claim, two of which predated defendant's
motion by over six years. None of the letters state that the
ailments described affect defendant's ability to work or earn an
income. We discern no abuse of discretion in the court's finding
that defendant failed to make a prima facie showing of changed
circumstances based on his health issues.
However, we agree with defendant's argument that the court
erred by finding he failed to make a prima facie showing his
reduction in income constituted a changed circumstance warranting
a plenary hearing. An "increase or decrease in the supporting
spouse's income" has been long recognized as a changed circumstance
supporting the modification of alimony. Lepis,
83 N.J. at 151;
accord Martindell v. Martindell,
21 N.J. 341, 355 (1956). The
moving party must demonstrate that the "'changed
circumstance . . . substantially impaired the [moving party's]
ability to support himself or herself.'" Foust v. Glaser,
340 N.J. Super. 312, 316 (App. Div. 2001) (quoting Lepis,
83 N.J. at
A "change in . . . income" is "only one part of the calculus
to be considered in ruling upon" a motion for reduction in alimony.
405 N.J. Super. at 129. The court must not only consider
"the parties' earnings but also how they have expended their income
and utilized their assets." Id. at 130.
A temporary change in income does not support a modification
of alimony. See Lepis,
83 N.J. at 151 ("Courts have consistently
rejected requests for modification based on circumstances which
are only temporary . . . ."). Where, as here, a self-employed
party seeks an alimony modification, "what constitutes a temporary
change in income should be viewed more expansively" because the
individual is "in a better position to present an unrealistic
picture of his or her actual income than a W-2 earner." Donnelly,
405 N.J. Super. at 128-29 (quoting Larbig,
384 N.J. Super. at 23).
The court found defendant failed to make a prima facie showing
of changed circumstances based on his reduced income because he
failed to provide certain information plaintiff argued should have
been supplied, but the court did not identify. The court also
determined it lacked the financial accounting expertise to
consider the information defendant provided.
We first observe the court's lack of financial accounting
expertise did not render defendant's showing inadequate and was
irrelevant to a proper assessment of whether defendant
demonstrated changed circumstances. Moreover, we are convinced
the court erred in finding defendant failed to make a prima facie
showing there was a change in his income supporting a possible
modification of his alimony obligation.
Defendant supplied a significant amount of information in
support of his motion, including his tax returns for each of the
fifteen years following the establishment of his alimony
obligation in 2000 and prior to the 2016 filing of his motion. He
filed a case information statement and described in detail the
circumstances he claims caused a reduction in his income. He
explained that the court established his alimony obligation in
2000 based on an imputed income of $78,000,3 showed that over the
three years prior to the filing of his motion, his income
progressively declined from $75,993 in 2013 to $40,623 in 2015,
and certified the reduction was the result of market conditions
beyond his control. See, e.g., Lepis,
83 N.J. at 151 (finding a
reduction in income may constitute a changed circumstance
warranting modification of alimony); Donnelly,
405 N.J. Super. at
128-29 (explaining that a permanent reduction in income may support
a modification of alimony).
Defendant's prima facie showing of changed circumstances does
not end the inquiry. We remand for the court to decide whether
Defendant provided a child support guidelines worksheet from
2000 showing the court determined defendant's child support
obligation based on an annual income of $78,000.
there are genuine issues of material fact necessitating a plenary
hearing. See R.K. v. F.K.,
437 N.J. Super. 58, 62 (App. Div.
2014) (quoting Lepis,
83 N.J. at 159) (finding that once a moving
party makes a prima facie showing of changed circumstances, "the
court must decide whether to hold a hearing"). The court shall
determine what, if any, discovery is required to address any
alleged factual disputes, and based on the exchange of discovery
may determine a plenary hearing is unnecessary. See Lepis,
83 N.J. at 158-59. For example, the court may direct that defendant
produce the information plaintiff argued was missing from
defendant's submissions in its assessment of whether a plenary
hearing is required.
The court has the discretion to decide the motion exclusively
on the papers. See Avelino-Catabran v. Catabran,
445 N.J. Super.
574, 592-93 (App. Div. 2016); Faucett,
411 N.J. Super. at 128;
Shaw v. Shaw,
138 N.J. Super. 436, 440 (App. Div. 1976). A plenary
hearing is "required only 'when the submissions show there is a
genuine and substantial factual dispute . . . , and the trial
judge determines that a plenary hearing is necessary to resolve
the factual dispute.'" Avelino-Catabran,
445 N.J. Super. at 592-
93 (alteration in original) (quoting Hand v. Hand,
391 N.J. Super.
102, 105 (App. Div. 2007)).
Reversed and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.