DONNA JEAN KAFADER v. LOUIS G. NAVAS

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NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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      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
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2184-16T1

DONNAJEAN KAFADER, f/k/a
NAVAS,

        Plaintiff-Respondent,

v.

LOUIS G. NAVAS,

     Defendant-Appellant.
_____________________________

              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.

PER CURIAM

        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.
                                           I.

     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

                                           2                                     A-2184-16T1
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

v. Quinn, 
225 N.J. 34 (2016), the court concluded it must enforce




1
   We do not address plaintiff's cross-motion. The court denied
the relief requested and plaintiff did not appeal from the court's
order.

                                  3                               A-2184-16T1
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

appeal followed.

     Defendant makes the following arguments on appeal:

                                       4                           A-2184-16T1
           POINT I

           THE TRIAL COURT ERRED AND MISINTERPRETED QUINN
           V. 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.

           POINT II

           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
           HEARING.
                                II.

     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, 
262 N.J.

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, 
428 N.J.

Super. 184, 197 (App. Div. 2012) (citations omitted).       "A trial


                                 5                            A-2184-16T1
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

Manalapan, 
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.

2009).

       "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, 
405 N.J.

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

                                      6                                 A-2184-16T1
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

defendant relied.

      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.                
225 N.J.

at 50.

      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

                                        7                                A-2184-16T1
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

alimony.   Quinn, 
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

                                       8                                   A-2184-16T1
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.




2
   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, 
418 N.J.
Super. 18, 31 (2011).

                                         9                                  A-2184-16T1
     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
 157).

     A "change in . . . income" is "only one part of the calculus

to be considered in ruling upon" a motion for reduction in alimony.

                                 10                         A-2184-16T1
Donnelly, 
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

                                    11                             A-2184-16T1
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



3
   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.

                                            12                                   A-2184-16T1
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)).



                                  13                            A-2184-16T1
    Reversed and remanded for further proceedings in accordance

with this opinion.   We do not retain jurisdiction.




                               14                       A-2184-16T1