W.S v. S.S

NOT FOR PUBLICATION WITHOUT THE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-3780-19

W.S.,

          Plaintiff-Respondent,

v.

S.S.,

     Defendant-Appellant.
_______________________

                   Submitted March 22, 2021 – Decided November 12, 2021

                   Before Judges Currier and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Union County.
                   Docket No. FM-20-0830-07.

                   Patti Family Law, attorneys for appellant (John A.
                   Patti, on the briefs).

                   Kathleen B. Estabrooks, PC, attorneys for respondent
                   (Kathleen B. Estabrooks, on the brief).

          The opinion of the court was delivered by

DeALMEIDA, J.A.D.
      Defendant S.S.1 appeals from the May 12, 2020 order of the Family Part

denying his motion to terminate his alimony obligation to plaintiff W.S. We

affirm.

                                         I.

      The parties were married in 2002. At the time, both worked. When W.S.

was pregnant with the couple's second child she was diagnosed with a

noncancerous brain tumor that prevented her from working. In 2006, the Social

Security Administration declared W.S. disabled.

      W.S. filed for a divorce shortly after her diagnosis. The couple's property

settlement agreement (PSA), which was incorporated into their judgment of

divorce, provides that S.S. shall pay $2,000 a month in alimony to W.S. The

amount of alimony is based, in part, on W.S.'s inability to work due to her

disability. According to the PSA,

            [t]he term of alimony shall be a term of [ten] years.
            [S.S.] shall be entitled to rebut the presumption of
            disability upon the [ten]-year anniversary of alimony
            payments. In the event [W.S.] continues to be on
            disability, this shall be presumed that alimony shall
            continue beyond the [ten-]year term. However, this is
            agreed to be a rebuttable presumption with the burden
            upon [S.S.]


1
  We identify the parties by their initials in order to preserve the confidentiality
of W.S.'s medical condition. R. 1:38-3(d)(3).
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                                         2
      In July 2017, S.S. moved for an order: (1) permitting him to engage in

discovery relating to whether W.S. remained disabled; (2) directing W.S. to

cooperate with his medical expert; and (3) terminating alimony as of the

conclusion of the ten-year term in the event he proves W.S. is no longer disabled.

In the alternative, S.S. moved for an order: (1) permitting him to engage in

discovery relating to W.S.'s employability; (2) requiring W.S. to cooperate with

a vocational expert; and (3) modifying alimony in the event he proves that W.S.

is able to earn income despite her disability. Defendant also sought an order:

(1) permitting discovery relating to W.S.'s alleged cohabitation; (2) directing

W.S. to file an updated case information statement (CIS); and (3) modifying

alimony based on changed circumstances relating to his income.

      W.S. opposed the motion, certified that she remained disabled and unable

to work, and denied cohabitation with any adult. She cross-moved for an order

requiring S.S. pay his share of the children's medical expenses.

      On September 22, 2017, the trial court issued an order denying without

prejudice S.S.'s motion to terminate alimony. The court ordered that both parties

may engage in discovery relating to W.S.'s disability and alleged cohabitation.

      S.S. thereafter moved for an order: (1) finding W.S. in violation of

litigant's rights based on her deficient responses to discovery requests; (2)


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compelling W.S. to provide complete answers to outstanding discovery and a

current CIS; and (3) suspending alimony until resolution of his motion.

      On September 28, 2018, the trial court issued an order finding W.S. to be

in violation of litigant's rights for failure to provide complete responses to

discovery concerning her income and expenses. The court found that it had

intended to permit discovery beyond the issue of W.S.'s continued disability and

cohabitation and that "ongoing alimony was the essential matter before the

[c]ourt" when it entered the order permitting discovery. The court explained

that "[i]t goes without saying that the financial status of each party would be the

focus of that discovery, as it is critical to any determination of alimony

extending beyond ten years." The court awarded S.S. $1200 in attorney's fees.

      The court denied without prejudice S.S.'s motion to terminate or modify

alimony, but suspended alimony retroactive to May 13, 2018, the tenth

anniversary of the PSA. 2 In its decision, the court stated that "[i]f [W.S.] fully

and completely responds to [S.S.'s] discovery requests . . . she may move to

attempt to reinstate the alimony."




 2 On October 3, 2018, the court filed an order correcting a scrivener's error in
the September 28, 2018 order noting May 18, 2013, instead of May 13, 2018.


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      W.S. subsequently moved for reconsideration of the September 28, 2018

and October 3, 2018 orders.       S.S. cross-moved for an order permanently

terminating alimony retroactive to May 13, 2018 and holding W.S. in violation

of litigant's rights for not providing complete responses to discovery.

      On November 30, 2018, the court entered an order denying W.S.'s motion

for reconsideration. The court ordered W.S. to provide complete responses to

all outstanding discovery on or before January 31, 2019. In addition, the court

ordered W.S. to pay S.S. $11,210 for alimony that was collected after May 13,

2018 and denied S.S.'s cross-motion to permanently terminate alimony

retroactive to May 13, 2018.

      On February 11, 2019, W.S. moved for post-judgment relief.             She

requested that the November 30, 2018 order be vacated and that all suspended

alimony payments be made current. She argued, among other things, that the

suspension of alimony as a sanction for failing to answer discovery was

inappropriate. S.S. cross-moved for a permanent termination of alimony, a

finding that W.S. was in violation of litigant's rights, and a judgment requiring

the repayment by W.S. of $11,210 in alimony paid after May 13, 2018.

      On September 26, 2019, the trial court entered an order: (1) reserving

decision on W.S.'s motion to reinstate alimony; (2) reserving decision on S.S.'s


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motion to terminate alimony permanently; (3) reserving decision with respect to

entry of a judgment requiring repayment by W.S. of $11,210; (4) denying W.S.'s

motion to vacate various provisions of the court's prior orders; (5) denying S.S.'s

motion to hold W.S. in violation of litigant's rights; and (6) directing W.S. to

provide complete responses to various outstanding discovery requests and an

updated CIS.

      W.S. thereafter produced discovery responses and an updated CIS. She

requested reinstatement of alimony retroactive to May 13, 2018. S.S. objected,

arguing that W.S. had not cured her deficient discovery responses, that her CIS

was incomplete, and that alimony should not be reinstated without a hearing.

      On May 12, 2020, the trial court issued an order: (1) granting W.S.'s

motion to reinstate alimony retroactive to May 13, 2018; (2) denying S.S.'s

cross-motion to terminate alimony retroactive to May 13, 2018; (3) denying

S.S.'s motion to compel W.S. to reimburse him $11,210 for alimony paid after

May 13, 2018; and (4) vacating, as moot, the prior award of attorney's fees.

      In a written statement of reasons accompanying the order, the trial court

found that: (1) W.S. provided complete responses to all outstanding discovery

requests; (2) S.S. failed to make a prima facie showing of changed

circumstances, i.e., that W.S. is not disabled and unable to work, warranting a


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change in alimony; (3) because W.S. fully responded to all outstanding

discovery, the suspension of alimony retroactive to May 13, 2018, and the award

of attorney's fees, were no longer warranted; and (4) S.S. is bound by the terms

of the PSA, which require him to pay alimony after the conclusion of the initial

ten-year period absent a showing by him that W.S. is no longer disabled.

      This appeal follows. S.S. argues the May 12, 2020 order should be

reversed because the trial court: (1) did not hold an evidentiary hearing with

respect to W.S.'s disability; (2) did not issue sufficient findings of fact and

conclusions of law; (3) failed to permit S.S. to take depositions; (4) improperly

limited discovery in other ways; (5) improperly vacated the suspension of

alimony retroactive to May 13, 2018, because that suspension was intended to

be a punishment for W.S.'s refusal to provide discovery; (6) improperly vacated

the award of attorney's fees; and (7) failed to follow the "law of the case"

established in prior orders.

                                       II.

      Our review of a Family Part order is limited. Cesare v. Cesare,  154 N.J.
 394, 411 (1998). "[W]e do not overturn those determinations unless the court

abused its discretion, failed to consider controlling legal principles or made

findings inconsistent with or unsupported by competent evidence." Storey v.


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Storey,  373 N.J. Super. 464, 479 (App. Div. 2004). We must accord substantial

deference to the findings of the Family Part due to that court's "special

jurisdiction and expertise in family matters . . . ." Cesare,  154 N.J. at 413.

      We defer to the judge's factual determinations, so long as they are

supported by substantial credible evidence in the record. Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 483-84 (1974).           This court's

"[a]ppellate review does not consist of weighing evidence anew and making

independent factual findings; rather, [this court's] function is to determine

whether there is adequate evidence to support the" trial court's fact findings. See

Cannuscio v. Claridge Hotel & Casino,  319 N.J. Super. 342, 347 (App. Div.

1999) (citing State v. Johnson,  42 N.J. 146, 161 (1964)). We review de novo

the court's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Twp.

of Manalapan,  140 N.J. 366, 378 (1995).

      S.S.'s motion to terminate or modify his alimony obligation is based on

the PSA, the terms of which reflect the parties' settlement of W.S.'s complaint

for divorce. Settlement of matrimonial disputes is encouraged and highly valued

in our court system. Quinn v. Quinn,  225 N.J. 34, 44 (2016) (citing Konzelman

v. Konzelman,  158 N.J. 185, 193 (1999)). Settlement agreements are governed

by basic contract principles and, as such, courts should discern and implement


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the parties' intent. J.B. v. W.B.,  215 N.J. 305, 326 (2013); Pacifico v. Pacifico,

 190 N.J. 258, 265-66 (2007). "The court's role is to consider what is written in

the context of the circumstances at the time of drafting and to apply a rational

meaning in keeping with the 'expressed general purpose.'" Id. at 266 (citation

omitted).

      The PSA's plain text provides that after a ten-year term of alimony, if W.S.

remains disabled there will be a rebuttable presumption that alimony will

continue. S.S. has the burden to rebut the presumption. This agreement is

similar in structure to the legal framework in which a party may seek termination

or modification of an alimony obligation based on changed circumstances.

      Generally, the court is "authorized to modify alimony and support orders

'as the circumstances of the parties and the nature of the case' require." Halliwell

v. Halliwell,  326 N.J. Super. 442, 448 (App. Div. 1999) (quoting  N.J.S.A.

2A:34-23). A party seeking a modification of his alimony and child support

obligations must demonstrate changed circumstances "as would warrant relief."

Lepis v. Lepis,  83 N.J. 139, 157 (1980). "A hearing is not required or warranted

in every contested proceeding for the modification of a judgment or order

relating to alimony." Murphy v. Murphy,  313 N.J. Super. 575, 580 (App. Div.

1998); see also Lepis,  83 N.J. at 159 (holding that "a party must clearly


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                                         9
demonstrate the existence of a genuine issue as to a material fact before a hearing

is necessary."). We review the trial court's modification decision for an abuse

of discretion. Costa v. Costa,  440 N.J. Super. 1, 4 (App. Div. 2015).

      The trial court did not err when it concluded that the PSA requires S.S. to

make a preliminary showing that there is a genuine dispute with respect to W.S.'s

ongoing disability before holding a hearing. Our review of the record reveals

no evidence offered by S.S. that W.S. no longer suffers from her disability. To

the contrary, W.S. continues to receive disability benefits because of the

deleterious effects the brain tumor has on her ability to work. S.S. offers only

his unsupported statement that surgery and treatment have rendered the tumor

unharmful to W.S., an assertion previously rejected by the court with respect to

prior applications by S.S. to terminate alimony and which is contrary to the

opinion reached by a medical expert retained by S.S. in 2012.

      We also find no evidence in the record supporting S.S.'s claim that the

trial court precluded him from holding depositions. The trial court's September

22, 2017 order permits the parties to conduct depositions. There is no evidence

in the record that S.S. served a notice of deposition on W.S. or any other party

at any time during the two-and-a-half years between the September 22, 2017

order and entry of the May 12, 2020 order.


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      Nor are we persuaded by S.S.'s argument that it was error for the trial

court to restore alimony retroactive to May 13, 2018, and vacate the award of

attorney's fees once W.S. completely responded to outstanding discovery. It is

evident from the record that the trial court suspended alimony and awarded

attorney's fees to coerce W.S. into responding fully to outstanding discovery.

While we do not have occasion to opine with respect to the validity of

suspending alimony and awarding attorney's fees for that purpose, we see no

abuse of the trial court's discretion in reinstating alimony retroactively and

vacating the attorney's fee award on the record before us.

      To the extent we have not specifically addressed any of S.S.'s remaining

arguments, including his contentions with respect to the sufficiency of the trial

court's findings of fact and lack of adherence to the "law of the case," we

conclude they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




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