NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5753-14T1
BARBARA HENNEBERRY,
Plaintiff-Respondent,
v.
RICHARD HENNEBERRY,
Defendant-Appellant. ________________________________
Submitted April 5, 2017 – Decided July 10, 2017
Before Judges Alvarez and Lisa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1195-06.
Saminski, Rodriguez & Papadopoulo, L.L.C., attorneys for appellant (Stephanie O'Neill, on the briefs).
Haber Silver & Simpson, attorneys for respondent (Karin Duchin Haber, of counsel; Jani Wase Vinick, on the brief).
PER CURIAM Defendant, Richard Henneberry, appeals the Family Part order
of July l0, 20151 denying his motion to eliminate his alimony
obligation or, alternatively, to reduce the obligation or conduct
a plenary hearing. The order also granted relief sought by
plaintiff, Barbara Henneberry, in her cross-motion, requiring
defendant to maintain a $300,000 life insurance policy naming her
as the beneficiary pursuant to the parties' Interspousal
Settlement Agreement (ISA). The order also ordered defendant to
pay $2000 to plaintiff's attorney.
Defendant argues that the trial court erred in failing to
grant his application for termination of alimony by making
inadequate findings under N.J.S.A. 2A:34-23j(3), and by
erroneously considering assets he received as part of the equitable
distribution of property contrary to N.J.S.A. 2A:34-23j(4).
Defendant also argues that, in light of his good faith retirement
and the terms of the ISA, the court erred in requiring him to
continue to maintain a $300,000 life insurance policy. Defendant
further argues that the court erred in awarding a counsel fee to
plaintiff. Finally, he argues that the court abused its discretion
by failing to conduct a plenary hearing involving the issues of
1 After the appeal was filed, the trial court entered an amended order on September 21, 2015, which did not make any substantive changes, but which had annexed to it a supplemental statement of reasons for its decision.
2 A-5753-14T1 alimony, life insurance and counsel fees. We are unpersuaded by
defendant's arguments and affirm.
The parties were married on February 7, 1970. They were
divorced on June 29, 2007. At the time of their divorce, they had
two emancipated children. Both parties were represented by counsel
in the divorce action. Through negotiations, they arrived at the
agreement memorialized in the ISA, which was attached to and
incorporated in the Final Judgment of Divorce.
Both parties were employed full time during the marriage. At
the time of the divorce, defendant was a firefighter earning a
yearly salary of approximately $95,000. He also had a side
business in construction, which included the occasional
purchasing, improving and reselling of homes. Plaintiff worked
as a teacher from 1987 to 2015, earning approximately $52,000 per
year at the time of the divorce.
Defendant retired in March 2014 upon his attainment of age
sixty-five, the mandatory retirement age in the fire department
in which he was employed. Plaintiff attained age sixty-five in
March 2015, and retired on June 30 of that year, at the end of the
school term. When they retired, defendant's salary as a
firefighter was approximately $125,000, and plaintiff's teacher's
salary was approximately $63,000.
3 A-5753-14T1 Plaintiff had been diagnosed in June 2012 with stage four
ovarian cancer. The cancer metastasized, requiring surgical
intervention and a continuing course of chemotherapy. Although
she required medical absences from work totaling several months
in the years following her diagnosis, plaintiff continued her full
time employment as a teacher. This was a necessity for her because
the ISA required each party to be responsible for their own medical
insurance. By remaining employed full time, plaintiff continued
to receive medical insurance through her employer. Upon attaining
age sixty-five, she became eligible for Medicare.
Defendant also experienced a health issue. He was diagnosed
in 2011 with papillary urothelial carcinoma, a form of bladder
cancer. Defendant asserted this diagnosis in a certification in
support of his motion, in which he also stated that he required
chemotherapy treatment every three months. Plaintiff did not
dispute defendant's diagnosis. However, defendant failed to
submit any medical documentation to establish that the condition
debilitated him or impeded his ability to continue working.
Indeed, defendant continued working full time in the very demanding
occupation as a firefighter for several additional years until his
mandatory retirement.
The ISA requires defendant to pay permanent alimony of $1750
per month and to maintain $300,000 of life insurance coverage with
4 A-5753-14T1 plaintiff as the beneficiary for as long as he continues to pay
alimony. If alimony is terminated, his insurance obligation would
be reduced to $225,000 until either party dies. In the event of
a reduction of alimony, "the life insurance on the alimony portion
($75,000.00) will be modified in proportion to said [alimony]
modification." The ISA also designated sixty-three years of age
as the agreed-upon age for defendant's "good faith" retirement.
After defendant retired, he filed a motion asking the court
to terminate his alimony obligation and seeking reimbursement for
alimony he had paid after his retirement. He also sought counsel
fees. Defendant had unilaterally reduced the amount of his life
insurance coverage to $225,000, based upon his belief that his
alimony obligation would automatically terminate upon his
retirement. Plaintiff cross-moved to enforce her litigant's
rights under the ISA, requesting that the life insurance coverage
be restored to the $300,000 level required by the ISA, and for
counsel fees.
Defendant failed to provide with his motion a prior or updated
Case Information Statement (CIS). For that reason, the court
denied defendant's motion without prejudice. The court also
concluded that the provisions of the ISA required continued life
insurance coverage in the amount of $300,000, notwithstanding
defendant's retirement, and ordered enforcement of that provision.
5 A-5753-14T1 On April 24, 2015, defendant filed a second motion. He sought
termination of his alimony obligation, reimbursement of alimony
paid since retirement, and authorization to reduce his life
insurance obligation to $225,000. He provided the court with only
his current CIS.
Plaintiff again filed a cross-motion. She sought to sanction
defendant until he complied with the court's prior order by
providing proof that the life insurance had been restored to the
$300,000 level. Plaintiff included her own current CIS and her
prior CISs, and she also included defendant's prior CISs. Together
with her motion, plaintiff filed a certification pointing out many
items that were missing from the information submitted by
defendant. Significant among these omissions were that defendant
had inherited two properties. One was a condominium on a golf
course in Virginia. The other was a home near a college campus
in North Carolina. Apparently, the estate also included other
valuable assets. Defendant acknowledged that he was the
beneficiary of the estate, but contended that the homes and other
assets continued to be titled to the estate and that no
distribution had been made to him. He was the executor. However,
he failed to disclose why no distributions had been made to him
or to reveal the value of the assets, their income production or
6 A-5753-14T1 income producing potential, or other information relevant to the
effect this inheritance had on his financial condition.
Plaintiff also pointed out that defendant's CIS, which he had
not initially submitted, revealed that he had $232,091 in his bank
accounts, two vehicles with a combined value of $19,000, deferred
compensation accounts valued at $110,000, and no debt. Further,
it showed he was receiving $4587 per month in pension benefits and
$325 per month in Social Security benefits.
At the time of the divorce, the parties' principal asset was
the marital home valued at approximately $700,000, and debt free.
The home eventually sold for $740,000. After the divorce,
plaintiff moved into a condominium, which she purchased for
$392,000, financed by a mortgage with a monthly obligation of
$1407. Conversely, defendant purchased a home for $243,000 in
cash, which he sold four years later for $640,000. He contended
that he spent more than $400,000 in making improvements and
converting the home to a two-family residence. He said it was his
intention to live there long-term and retire there, renting out
the second unit to supplement his retirement income. He contended
that an unsolicited and unexpected offer came along, so he sold
the home for $640,000. He provided no explanation as to the source
of the $400,000 spent on the home. He provided no documentation
to verify these asserted expenditures. It appears that he made a
7 A-5753-14T1 substantial profit because he used these proceeds to purchase
another home for $522,000 in a cash transaction. The remainder
of the proceeds from the sale of the previous home was deposited
into a savings account.
The parties agreed to waive oral argument and allow the judge
to decide the cross-motions on the papers. The court entered its
order on July 10, 2015, denying defendant's motion in its entirety,
granting plaintiff's requested relief regarding the life
insurance, and ordering defendant to pay $2000 in attorney's fees
on behalf of plaintiff.
Defendant's claim that he is entitled to termination of
alimony based upon his good-faith retirement stems from his reading
of the ISA. However, as the trial court found, "nothing was
contained therein to indicate that alimony would automatically
terminate upon the Defendant reaching the age of 63." The trial
court was correct. The good-faith retirement age was inserted in
the ISA to confirm the acknowledgment by plaintiff that, if
defendant would continue working until at least age sixty-three,
his retirement would not be premature, but would be accomplished
in good faith, based upon his years of service and the customary
retirement age for firefighters. Indeed, defendant continued
working for two additional years until reaching age sixty-five,
when he was required to retire. There is no dispute that this was
8 A-5753-14T1 a good-faith retirement. However, under the clear terms of the
ISA, a good-faith retirement did not trigger an automatic right
to termination of alimony or even a reduction in alimony.
Under long established precedent, spousal support agreements
are subject to modification at any time upon a showing of
substantial and permanent changed circumstances. Lepis v. Lepis,
83 N.J. 139, 146 (1980). Alimony obligations "are always subject
to review and modification on a showing of 'changed
circumstances.'" Ibid. (quoting Chalmers v. Chalmers, 65 N.J.
186, 192 (1974)). When a modification application is made, the
court should examine evidence of the paying spouse's financial
status in order "to make an informed determination as to 'what,
in light of all of the [circumstances] is equitable and fair.'"
Id. at 158 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)
(alteration in original)).
A party seeking modification of a prior order bears the burden
of making a prima facie showing of changed circumstances. Id. at
157. In a case such as this, where the supporting spouse seeks a
downward alimony modification, "the central issue is the
supporting spouse's ability to pay." Miller v. Miller, 160 N.J.
408, 420 (1999). Defendant's assets, whether acquired through
inheritance or accumulated through his own earnings, must be
considered in this analysis. In Miller, the Court explained:
9 A-5753-14T1 Although the supporting spouse's income earned through employment is central to the modification inquiry, it is not the only measure of the supporting spouse's ability to pay that should be considered by a court. Real property, capital assets, investment portfolio, and capacity to earn by "diligent attention to . . . business" are all appropriate factors for a court to consider in the determination of alimony modification. We have never suggested that the supporting spouse's income earned from investments should be barred from this calculus.
[Id. at 420-21 (alteration in original) (citations omitted).]
Further, the current alimony statute sets forth guidance and
factors to be considered when a modification of alimony application
is made. Pertinent here is N.J.S.A. 2A:34-23j(3) pertaining to
modification applications upon retirement when the obligor has
reached full retirement age, and where, as in this case, the
enforceable written agreement was established prior to the 2014
amendment to the alimony statute. This section requires
consideration of the obligee's ability to have saved adequately
for retirement, as well as eight specified factors to consider in
determining "whether the obligor, by a preponderance of the
evidence, has demonstrated that modification or termination of
alimony is appropriate." N.J.S.A. 2A:34-23j(3).
The trial court gave full consideration to each of the eight
factors. The court noted that defendant had not been forthcoming
10 A-5753-14T1 in submitting information and withheld critical information until
it was brought forward by plaintiff. This included, for example,
the inherited properties and substantial bank accounts. The court
listed in detail the basis for determining defendant's overall
financial status, and thus, his ability to continue paying the
alimony provided for in the ISA. The court also considered
plaintiff's financial circumstances and determined she had a
continuing need for the full amount of alimony provided for in the
ISA. The court concluded as follows:
After reviewing the submissions of the parties including: the case information statements, parties' certifications as well as defendant's 2014 Income Tax Returns, and applying the factors pursuant to the new alimony statute, the Court finds that the defendant has not demonstrated by preponderance of the evidence that a modification or termination of alimony is appropriate in this case.
If the Court were to grant a downward modification of alimony, or in the alternative terminates alimony, the Plaintiff would not be able to meet her living expenses, including her medical expenses and health insurance premium so desperately needed for her medical condition. The Plaintiff, unlike the Defendant, cannot resort to other sources of income that can be derived from other properties or businesses.
The Court finds the plaintiff to be more credible than the defendant as he deliberately omitted information on both his original and amended case information statement[s] regarding his unearned income and assets.
11 A-5753-14T1 Moreover, the defendant did not deny plaintiff's assertions about his assets. Thus, based on the information provided to the Court, we find that the defendant has the ability to continue paying spousal support in the amount of $1,750 a month to the Plaintiff.
Therefore, because the defendant is financially capable to continue paying spousal support and his financial circumstances upon retirement did not substantially change as to warrant a termination or modification of his alimony obligation to the plaintiff, the defendant's motion is hereby DENIED.
We are satisfied from our review of the record that the
court's analysis of the relevant factors, as set forth in the
precedents we have mentioned and the current alimony statute, was
thorough and based upon competent evidence in the record.
Likewise, we are satisfied that the court's conclusion is well
grounded, supported by the evidence, and not an abuse of
discretion. We reject defendant's contention that the court failed
to properly weigh the factors required by N.J.S.A. 2A:34-23j(3).
We also reject defendant's contention that the court
erroneously considered defendant's assets acquired through
equitable distribution in violation of N.J.S.A. 2A:34-23j(4).
These assets, although listed among the many other factors the
court considered, were only partially acquired through equitable
distribution. It was incumbent upon defendant to distinguish
between the portions so acquired and the portions acquired after
12 A-5753-14T1 the divorce. Further, in the overall scope and magnitude of the
factors appropriately considered, these factors were relatively
minor, thus rendering harmless any potential error on this point.
Reduction of the $300,000 life insurance obligation is tied,
by the terms of the ISA, to a termination or reduction in alimony.
Because we have determined that the trial court did not err in
refusing to terminate or reduce the amount of alimony, it follows
that the $300,000 life insurance obligation must remain in effect.
We next address whether the court erred in refusing to conduct
a plenary hearing. Initially, we reject out of hand defendant's
contention that, based on language in Silvan v. Sylvan, 267 N.J.
Super. 578, 582 (App. Div. 1993), he is automatically entitled to
a plenary hearing based on his good faith retirement. In Silvan,
we observed "that in certain circumstances, good faith retirement
at age sixty-five may constitute changed circumstances for
purposes of modification of alimony and that a hearing should be
held to determine whether a reduction of alimony is called for."
Id. at 581 (emphasis added). We do not read Silvan as establishing
a bright line exception to the Lepis standard. A good faith
retirement is merely one factor to be considered in determining
whether a prima facie showing of substantial and permanent changed
circumstances has occurred, which would give rise to a
discretionary decision by the trial court of whether or not to
13 A-5753-14T1 conduct a plenary hearing. Further, under the current alimony
statute, the relevant provision, N.J.S.A. 2A:34-23j(3), does not
provide for an automatic plenary hearing upon retirement.
Family Part judges are accorded broad discretion in
determining whether to conduct a plenary hearing in modification
applications. The movant bears the burden of making a prima facie
showing of the required changed circumstances. Lepis, supra, 83
N.J. at 157. A plenary hearing is not required "when the material
facts are not in genuine dispute." Id. at 159. The moving party
"must clearly demonstrate the existence of a genuine issue as to
a material fact before a hearing is necessary." Ibid.
Defendant contends that a genuine dispute existed with
respect to material facts, and the court erred by resolving these
disputes without hearing testimony. For example, defendant points
to several instances in the court's statement of reasons referring
to plaintiff as being more credible than defendant. Of course,
credibility determinations require live testimony. However, in
context, it is clear to us that the court was referring to the
fact that defendant was less forthcoming in the submission of
required information and withheld information that was readily
available to him, such as the value of the inherited properties.
We are therefore unpersuaded that the court improperly made
"credibility" determinations based on the papers alone.
14 A-5753-14T1 Most importantly, a disagreement as to certain facts does not
necessarily constitute a genuine issue of material fact. See
Barblock v. Barblock, 383 N.J. Super. 114, 124-25 (App. Div.),
certif. denied, 187 N.J. 81 (2006). In that case, we held that
the trial court did not err in refusing to conduct a plenary
hearing because the contradictory information provided in the
moving party's certification consisted of bald, conclusory
statements not supported by any documentation. Ibid. Accordingly,
those statements did not create a "genuine" issue of material
fact. Ibid. (citation omitted). Those principles apply in this
case. For example, defendant baldly denied that he continued to
be engaged in the house-flipping business and asserted, without
documentation, that he spent more than $400,000 improving the home
he purchased in 2010, and sold in 2014 for a substantial profit
when an unsolicited offer was made, and then turned around and
purchased for cash a much more expensive home, placing the balance
of the proceeds into a savings account. On the papers, such a
bald assertion was not worthy of constituting a genuine issue of
a material fact. The same can be said of the inheritance
information.
We find no abuse of discretion in the court's refusal to
conduct a plenary hearing in these circumstances. The record
evidence, taken as a whole, supported the court's conclusion that
15 A-5753-14T1 defendant failed to make the required prima facie showing of
substantial and permanent changed circumstances under the Lepis
standard.
Finally, we address the $2000 counsel fee award. Contrary
to defendant's contention, the court considered all relevant
factors and rendered a very modest award. The court did not abuse
its discretion.
Affirmed.
16 A-5753-14T1