RENEE LEONARD v. WAYNE D. LEONARD

NOT FOR PUBLICATION WITHOUT THE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
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-4386-16T3

RENEE LEONARD,

       Plaintiff-Respondent,

v.

WAYNE D. LEONARD,

     Defendant-Appellant.
_______________________________

                Argued June 26, 2018 - Decided October 29, 2018

                Before Judges Nugent and Accurso.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Family Part, Salem County, Docket
                No. FM-17-0097-13.

                Katrina Vitale argued the cause for appellant.

                Paul H. Scull, Jr., argued the cause for respondent.

PER CURIAM

       Defendant Wayne D. Leonard appeals from a post-judgment order

denying his motion to terminate alimony based on plaintiff Renee Leonard's
cohabitation; denying his request in the alternative for a suspension of alimony

and a plenary hearing; denying his request to terminate plaintiff's interest in his

life insurance policy and denying his request for counsel fees. Finding no error,

we affirm.

      The parties were divorced in 2013 after a seventeen year marriage. They

have no children together. At the time of the divorce, plaintiff earned $56,000

annually, and defendant was in the process of being terminated from a job

providing him with $96,000 per year. After appearing at a matrimonial early

settlement panel, with counsel, the parties remained in the courthouse where

they continued to negotiate the terms of an agreement. By the end of the day,

the parties had finalized their negotiations, and the court entered a "final

judgment of divorce with stipulations." Included among the provisions was

defendant's agreement to pay plaintiff "permanent Alimony in the amount of

$200.00 per week" based on their respective incomes, which would terminate

"upon remarriage of the Wife, death of the Wife, or death of the Husband."

Defendant also agreed to maintain an existing $225,000 life insurance policy

naming plaintiff the beneficiary.

      In January 2017, defendant made the motion precipitating this appeal. In

a supporting certification, defendant claimed his ex-wife left the marital


                                                                          A-4386-16T3
                                        2
residence and "moved in" with the man she was seeing a year before the parties'

divorce. He claimed they had continuously lived together since that time,

although plaintiff denied it during the divorce proceedings. He claimed to have

recently hired a private detective to confirm plaintiff's cohabitation. Defendant

asserted plaintiff's standard of living had improved, while his had worsened. He

claimed he "unintentionally violated a minor safety rule" at the plant where he

worked as a chemical operator a few weeks prior to the divorce and was

unexpectedly fired for it two days after the judgment was entered. His charge

of discrimination with the EEOC was eventually dismissed. Defendant claimed

to have finally become re-employed but at a salary $37,000 less than what he

earned at the time of the divorce.

      Plaintiff opposed the motion. In her certification, she noted cohabitation

was not one of the three bases the parties agreed would trigger the termination

of defendant's alimony obligation. Further, she contended that as defendant

claimed she had been cohabiting since before the divorce judgment was entered,

her cohabitation now would not be a change in circumstances. Plaintiff admitted

to having "an on again off again romantic relationship" with a man she lived

with at various times but denied he had ever supported her financially or that

she was receiving any economic benefit from him.


                                                                        A-4386-16T3
                                       3
      Plaintiff further claimed her income had decreased to $36,000 as a result

of the unavailability of overtime in her nursing position and leave she had taken

from work following the death of her eldest son in a workplace accident. She

further explained that she was currently out on medical leave following the

sudden, unexpected death of her youngest son and was not sure when she would

return to work. She claimed the reduction of defendant's income was a result of

his own misconduct, resulting in the termination of his employment.

      In a reply certification, defendant claimed he agreed to pay alimony at the

time of the divorce only because he had no evidence then that plaintiff was living

with another man as he suspected.           He asserted as plaintiff admitted to

cohabitation "past and present" and his income had significantly decreased, such

that the parties were now earning roughly the same amount, that his alimony

obligation should be eliminated.

      After hearing argument, Judge Lopez denied defendant's request to

terminate alimony or schedule a plenary hearing but granted his request to

compel plaintiff to produce her tax returns (which she had already done

voluntarily), her three most recent paystubs and a full and complete case

information statement.     The judge further denied defendant's request to




                                                                         A-4386-16T3
                                        4
terminate plaintiff's interest in his life insurance policy and his request for

counsel fees.

       In an accompanying memorandum, the judge explained the parties'

settlement agreement incorporated into the judgment of divorce was "not silent

as to a termination or modification of alimony." The judge found the parties

negotiated their agreement, thus providing defendant the opportunity to have

added cohabitation to the list of reasons for termination of alimony. Although

making no finding as to whether plaintiff had been cohabiting as early as

defendant claimed, the judge noted defendant's suspicions of such at the time of

the divorce would have provided him a reason to have insisted on cohabitation

being grounds for termination of his alimony obligation. His failure to do so,

and instead to sign the agreement without it, made his suggestion of fraud

"disingenuous." The judge found both parties bound by the agreement they

negotiated, that there was no provision in that agreement to terminate alimony

based on cohabitation, and whether plaintiff was cohabiting now or even as early

as 2013 was immaterial as "there is nothing in the MSA to deter her from doing

so."

       Going on to address whether changed circumstances provided a reason to

revisit alimony, the judge acknowledged that both parties' incomes had


                                                                        A-4386-16T3
                                       5
decreased since entry of the final judgment, but found the decrease to be the

result of both being underemployed voluntarily. Specifically, the judge found

defendant's termination was as a result of his own history of rule infractions,

and that plaintiff had presented no proof of any medical or psychological

condition that would prevent her from working. Noting the inquiry was not

limited to current income but also income capacity, the judge noted that even

were she to find changed circumstances, she would impute to each party the

income earned at the time of the entry of divorce, resulting in no change to the

alimony the parties' negotiated.

      As to defendant's insurance policy, the judge found defendant had not

provided the court with any reason not to enforce the provision of the parties'

agreement requiring that he maintain it in place. Finally, following a complete

Rule 5:3-5 analysis, the judge determined defendant had not made a case for the

award of counsel fees.

      Defendant appeals, arguing the trial court misapplied the standard for

establishing changed circumstances, improperly disregarded defendant's

changed economic circumstances, that the continuation of his alimony

obligation is no longer fair and equitable and that continued alimony is

unnecessary to enable plaintiff to maintain the former standard of living and


                                                                        A-4386-16T3
                                       6
"improperly determined that the law requires cohabitation language in order to

review cohabitation as a change in circumstances." Defendant further contends

the trial court erred as a matter of law in denying his application to terminate or

reduce his life insurance obligation as related to alimony and misapplied the law

in denying him counsel fees.

      Our review of the record convinces us that none of those arguments is of

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Our courts treat marital settlement agreements as contracts and interpret them

accordingly. Pacifico v. Pacifico,  190 N.J. 258, 265 (2007). "[T]he judicial

interpretive function is to consider what was written in the context of the

circumstances under which it was written, and accord to the language a rational

meaning in keeping with the expressed general purpose." Owens v. Press Publ'g

Co.,  20 N.J. 537, 543 (1956). We are satisfied Judge Lopez did that here and

that her decision to deny Mr. Leonard's application to terminate his alimony and

insurance obligation is supported by adequate, substantial and credible evidence

in the record and thus will not be disturbed on appeal. See  N.J.S.A. 2A:34-23;

Lepis v. Lepis,  83 N.J. 139, 148-49 (1980). Defendant's assertion that the trial

court "improperly determined that the law requires cohabitation language in




                                                                          A-4386-16T3
                                        7
order to review cohabitation as a change in circumstances" is blatantly at odds

with the record.

      We likewise find no error in Judge Lopez's order denying defendant an

award of counsel fees. The judge considered the relevant factors contained in

Rule 5:3-5(c), and her decision to deny fees was well within her considerable,

sound discretion. See Eaton v. Grau,  368 N.J. Super. 215, 225 (App. Div. 2004).

      We affirm, substantially for the reasons expressed in Judge Lopez's cogent

and well-reasoned memorandum accompanying the order of May 8, 2017.

      Affirmed.




                                                                        A-4386-16T3
                                       8