EVA E. ROSEN v. STEVEN R. ROSEN

NOT FOR PUBLICATION WITHOUT THE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-4580-19

EVA E. ROSEN,

          Plaintiff-Respondent,

v.

STEVEN R. ROSEN,

     Defendant-Appellant.
_______________________

                   Submitted October 25, 2021 – Decided November 18, 2021

                   Before Judges Accurso and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Somerset County,
                   Docket No. FM-18-1124-11.

                   Steven R. Rosen, appellant pro se.

                   Eva E. Rosen, respondent pro se.

PER CURIAM

          In this post-judgment matrimonial matter, defendant Steven R. Rosen

appeals from the August 7, 2020 order granting his request for a modification of
alimony for the limited period of August 1 to December 31, 2020. Because the

trial court did not explain why it confined the temporary reduction in support to

a five-month period and it did not compel plaintiff to file an updated case

information statement (CIS) after finding defendant demonstrated a substantial

change in his circumstances, we vacate that portion of the August 7 order

restricting defendant's alimony adjustment to five months, and remand for

further proceedings.

      Plaintiff Eva E. Rosen and defendant were married in 1994 and divorced

in 2013. The parties share a teenage son together. Pursuant to the marital

settlement agreement (MSA) incorporated into the parties' judgment of divorce

(JOD), defendant agreed to pay $2,000 per month in limited duration alimony

plus $1,000 per month in child support. His support payments were based on

him grossing $120,000 per year and plaintiff grossing $60,000 per year. The

MSA also provided alimony would cease on June 30, 2024, or sooner, if plaintiff

died or remarried, and that alimony could be modified in the event of a change

in circumstances.




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      On June 18, 2020, 1 defendant moved to modify his support obligations

based on an alleged decrease in his earnings and a decline in his overall financial

circumstances. He certified he was sixty-two years old, and a "Type [One]

[D]iabetic with no assets[,] having depleted all [his] savings . . . to meet [his]

obligations under the [MSA]." He further claimed that after the divorce, he

worked as a placement consultant for Financial Search Corporation (FSC) and

shared equally in the net proceeds of the business, but "[t]he general business of

executive placement in the financial industry . . . declined over the past few

years and [FSC]" suffered "a dramatic decline in revenues." In 2016, FSC

modified its arrangement with defendant to halve the compensation he

previously received for jobs he placed.

      Defendant represented that because his compensation structure was

altered, he only grossed $6,878 in 2017, $0 in 2018, and $15,300 in 2019. Given

the diminished earnings he received from his executive recruitment position, in

February 2020, defendant pursued employment with a BMW dealership in

Flemington. He was hired as a car salesman but due to the Covid-19 pandemic,

he was furloughed the following month. Defendant returned to the dealership



1
   Defendant states he filed his motion on June 17, 2020, but his initial
certification in support of his motion is dated June 18, 2020.
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in May 2020, yet was afforded only part-time hours. He was paid a base salary

of $200 per week, plus commissions on cars he sold. Additionally, he received

health insurance coverage, a benefit he lacked at his previous job.

      According to defendant, because he could not afford health insurance

premiums without a contribution from his prior employer, he incurred over

$200,000 in medical expenses due to "[his] diabetes treatment and a hospital

stay in 2018." Additionally, he liquidated his TIAA-CREF retirement account

to fund his support payments through July 2019.          Defendant stated that

thereafter, he "had no income nor assets to tap to make payments." He also

certified he faced eviction due to owing back rent of over $32,000, and that he

intended to file for personal bankruptcy because his debts exceeded $280,000.

      Given his dismal earnings and his request for a modification of alimony,

defendant asked the court to consider the likelihood plaintiff earned more than

he did.   He stated she had a college degree and had worked at Princeton

University for over twenty years. He also noted plaintiff had never satisfied a

judgment she owed him totaling $8,149, but he was "willing to forego the $8,149

judgment in settlement for the [support] arrears."

      In response, plaintiff certified she did "not object to a temporary

modification of alimony payment[s]" but stated "the monthly child support . . .


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must be paid . . . . Regular payments should resume in a timely manner and all

arrears must be satisfied." Plaintiff acknowledged defendant is diabetic, but

certified he was "using [his medical condition] as an excuse to garner sympathy

from the court . . . [as h]is diabetes ha[d] not stop[ped] him from taking multiple

vacations . . . and participating in dangerous sports." She further asserted

defendant failed to show a "'dramatic decline' in revenues" and that his former

business partner complained defendant "was not pulling his weight[,]" at his

prior place of employment. Plaintiff also questioned why defendant could not

take on a second job, or stop renting an expensive three-story townhouse at the

rate of $2,950 per month since she believed he lived with his girlfriend. She

further alleged his personal tax returns reflected "minimal income as a smoke

screen and a deliberate effort to mislead the court[,]" and that he used his sole

ownership of his business, Princeton Commodity Investors (PCI), to pay his

personal expenses. She contended that income from FSC and other payees was

deposited into defendant's PCI account so he should be compelled to turn over

the tax returns from PCI.

      Plaintiff also certified she had taken out several loans and worked a

second job at Penn Medicine to supplement her income from her full-time job

at Princeton University because defendant was behind in his support payments.


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Further, she noted that while she held a bachelor's degree, defendant held a

master's degree and had a higher earning potential than she did. She contended

she showed greater earnings on her tax returns than defendant because he "ha[d]

always been the great Houdini when it comes to hiding money and falsifying

financial documents." Finally, she claimed that in exchange for her not seeking

his arrest for failing to pay timely support, defendant had orally agreed to relieve

her from satisfying the judgment he held against her.

      In response, defendant denied he was living with his girlfriend or was

hiding income. Further, he provided his tax returns for PCI and claimed the

income set forth on those returns was consistent with what was reported on his

personal tax returns. Moreover, he estimated he would earn approximately

$35,000 in 2020.

      On August 7, 2020, the judge heard argument on defendant's application.

After defendant renewed his request for relief from his support obligations,

plaintiff reiterated she was "not averse to a temporary adjustment, but it . . . can't

be nothing, the arrears cannot go away." Promptly following argument, the

judge rendered a written decision. He found that at the time the parties entered

into the MSA, "defendant worked as [a] placement consultant with [FSC]" and

"his annual income was $120,000." Further, the judge accepted that defendant's


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compensation dropped in 2016, that he became a salesman at BMW Flemington,

and his "gross income for 2019 was $15,300." The judge concluded, "there

appears to be no dispute that defendant's economic situation has deteriorated.

Discovery is unnecessary."     Although the judge noted "both parties are

struggling financially," he determined "defendant is entitled to some temporary

relief." Therefore, the judge granted defendant a reduction in alimony, lowering

his payments from $2,000 to $1,000 per month for the months of August through

December 2020, and he directed that "[t]he alimony shall return to $2,000 per

month effective January 1, 2021." The judge denied the balance of defendant's

motion, but due to the parties' "competing certifications" regarding the $8,149

judgment, he provided that either party could "move for a plenary hearing on

this issue."

      On appeal, defendant raises the following arguments:

                              POINT I

               THE COURT ERRED BY NOT REQUIRING
               DISCOVERY OR A PLENARY HEARING AFTER
               FINDING A PRIMA FACIE CASE OF CHANGED
               CIRCUMSTANCES (Raised Below).

                              POINT II

               THE LOWER COURT ABUSED ITS DISCRETION
               BY MAKING A DETERMINATION ON ALIMONY


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            WITHOUT A RATIONAL BASIS AND FULL
            DISCOVERY (Not Raised Below).

                               POINT III

            UPON REMAND, DEFENDANT-APPELLANT'S
            ORIGINAL FILING DATE OF JUNE 17, 2020
            SHOULD BE PRESERVED (Not Raised Below).

      Ordinarily, we defer to the factual findings of the Family Part because of

its "special expertise in the field of domestic relations." Cesare v. Cesare,  154 N.J. 394, 412 (1998) (citing Brennan v. Orban, Jr.,  145 N.J. 282, 300-01 (1996)).

We do not disturb a trial court's findings unless we are satisfied it abused its

discretion. Rolnick v. Rolnick,  262 N.J. Super. 343, 360 (App. Div. 1993)

(citing Avery v. Avery,  209 N.J. Super. 155, 163 (App. Div. 1986)). However,

a judge's purely legal decisions are subject to our plenary review. Crespo v.

Crespo,  395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995)).

      The party moving to modify an award of alimony bears the burden of

making a prima facie showing that "circumstances" have changed to an extent

sufficient to justify a modification. Lepis v. Lepis,  83 N.J. 139, 157 (1980). An

"increase or decrease in the supporting spouse's income" may constitute a

"changed circumstance" that warrants modification.         Id. at 151 (citations

omitted). A payor requesting a modification based on a decrease in income must

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demonstrate those changed circumstances have "substantially affected his or her

ability to support himself or herself and the supported spouse." Crews v. Crews,

 164 N.J. 11, 30-31 (2000).

      An asserted change in circumstances must have existed for a long enough

period to be viewed as "continuing," rather than "temporary," to justify an

adjustment of the obligation. Lepis,  83 N.J. at 151-52. Furthermore, "what

constitutes a temporary change . . . should be viewed more expansively" when

the party claiming it is self-employed, since "it is the self-employed obligor who

is in a better position to present an unrealistic picture of his or her actual income

than a W-2 earner." Larbig v. Larbig,  384 N.J. Super. 17, 23 (App. Div. 2006).

      When seeking a modification of alimony, "the movant shall append copies

of the movant's current [CIS] and the movant's [CIS] previously executed or

filed in connection with the order, judgment or agreement sought to be

modified." R. 5:5-4(a)(4). The movant also must disclose his or her tax returns.

Lepis,  83 N.J. at 157. Then, if a prima facie case is established, "the court shall

order the opposing party to file a copy of a current [CIS]." R. 5:5-4(a)(4); see

also Lepis,  83 N.J. at 157. Thereafter, the court should evaluate each party's

current financial condition and subsequent ability to sustain the standard of

living established at the time of the original dissolution proceeding. Stamberg


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v. Stamberg,  302 N.J. Super. 35, 42 (App. Div. 1997). Only after the required

financial disclosures are submitted should the court decide whether to hold a

plenary hearing. Lepis,  83 N.J. at 159. Such a hearing is necessary if the

discovery and other documentation demonstrate the existence of a genuine

dispute regarding material facts.     Ibid.; See Dorfman v. Dorfman,  315 N.J.

Super. 511, 515 (App. Div. 1998).

      Governed by these standards, we are constrained to agree with defendant

that the judge properly found defendant made a prima facie showing of a

substantial change in circumstances, but then misapplied his discretion by

failing to order plaintiff to file a copy of a current CIS with the court as required

by Rule 5:5-4(a)(4). However, we do not agree with defendant that the judge

should have automatically scheduled a plenary hearing once defendant satisfied

his Lepis burden. Again, the decision of whether to schedule a plenary hearing

needed to abide the exchange of updated financial information between the

parties. Only then could the judge understand whether a genuine dispute existed

about the parties' financial circumstances.

      We further observe that although the judge carefully explained why he

found defendant satisfied his Lepis burden, he did not explain why defendant's

alimony obligation should be reduced to $1,000 per month for five months and


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then return to the level of $2,000 per month as of January 1, 2021. Because we

cannot discern a basis for the limited duration of this temporary order, and

because the judge did not have the benefit of plaintiff's CIS when he fixed the

reduced support award, we vacate that portion of the decision limiting the relief

afforded to defendant to a five-month period and remand the matter for further

proceedings.

      Due to the amount of time that has passed since the entry of the August 7

order, on remand, the judge not only should direct plaintiff to file an updated

CIS, but he should also consider directing defendant to supplement his 2020 CIS

with current information. Thereafter, the judge will be better equipped to

determine whether a plenary hearing is warranted and to fairly address the

support issues raised by the parties.

      Finally, to the extent defendant argues in Point III that he is entitled to

relief retroactive to the filing date of his original motion, we are convinced this

contention should be addressed on remand after the exchange of additional

discovery between the parties.

      In sum, that aspect of the order restricting relief to a five-month period is

vacated. The matter is remanded to determine whether further relief, both as to




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duration and the amount of any reduction in alimony, is warranted after

discovery.

     Vacated in part and remanded for further proceedings consistent with this

opinion.




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