ELIZABETH MIRMAN VS. BRIAN F. MIRMAN (FM-07-2348-03, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 21, 2019
• Docket: A-4326-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4326-16T1

ELIZABETH MIRMAN,

Plaintiff-Respondent/ Cross-Appellant,

v.

BRIAN F. MIRMAN,

Defendant-Appellant/ Cross-Respondent. _____________________________

Argued November 28, 2018 – Decided February 21, 2019

Before Judges Fuentes, Accurso and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2348-03.

Jeffrey P. Weinstein argued the cause for appellant/cross-respondent (Weinstein Lindemann & Weinstein, attorneys; Jeffery P. Weinstein, of counsel and on the briefs; Grace Eisenberg and Kelscey A. Boyle, on the briefs).

Allison S. Dunn argued the cause for respondent/cross- appellant (Gomperts Penza McDermott & Von Ellen, LLC, attorneys; Gerri N. Gomperts, of counsel and on the briefs; Allison S. Dunn, on the briefs).

PER CURIAM

In this post-judgment matrimonial matter, defendant Brian F. Mirman

appeals from a Family Part order denying his motion to require that plaintiff

Elizabeth Mirman pay child support, for modification or termination of his

alimony obligation to plaintiff, for an award of attorney's fees and for a plenary

hearing. Plaintiff cross-appeals, challenging the court's denial of her motion to

compel defendant to contribute to a life insurance policy securing defendant's

alimony obligation and for attorneys' fees. We affirm in part, vacate in part and

remand for further proceedings.

I.

Plaintiff and defendant married in 1989 and share three children, J.M.,

born in 1991, and twins, S.M. and M.M., born in 1998. The parties divorced in

2004. Their final judgment of divorce incorporated a negotiated property

settlement agreement (PSA), which includes provisions relevant to the disputes

between the parties that are the subject of the appeal. The PSA provides for

joint legal custody of the children with plaintiff designated as the parent of

primary residence. The PSA further provides for defendant's payment of $4600

A-4326-16T1 2 per month in alimony and allows for the termination of alimony in the event of

the death of either party or plaintiff's remarriage.

Defendant agreed to pay $6000 in monthly child support, with $2000

allocated to each unemancipated child. The PSA states that any additional

payments made by defendant to plaintiff for the support of the children in excess

of the agreed upon child support do not reduce or increase the monthly payment

obligations. The PSA further provides that "[p]ermanent residence of a child

with [defendant] shall be deemed a change of circumstances and [defendant]

shall be entitled to file a motion to terminate his [child] support obligation if the

parties do not agree."

Paragraph 4.4 of the PSA sets forth the parties' agreement on the children's

educational expenses. It generally requires that, after applying monies available

from Roth IRA college accounts, financial aid and student loans, the parties will

share the expenses based on their proportionate incomes. The PSA does not

provide for any contribution by the parties to their children's post-graduate

educational expenses.

The PSA further required that defendant maintain a $1 million life

insurance policy, naming plaintiff as a beneficiary, to insure plaintiff's receipt

A-4326-16T1 3 of alimony. The PSA provides that "[defendant's] policy terminates at age

[sixty-five], at which time the parties shall revisit this provision."

J.M was emancipated in 2013. By early 2017, she had graduated from

college and dental school, and was continuing her education in a dental

specialty. S.M. and M.M. were nineteen and no longer resided with plaintiff,

having moved out of her home and into defendant's home in September 2016.

When they began residing with defendant in September 2016, he ceased making

the $4000 monthly child support payment for the two children to plaintiff.

In February 2017, defendant filed a motion seeking modification or

termination of his alimony obligation, an award of child support from plaintiff

and attorneys' fees.1 Plaintiff filed a cross motion requesting an order requiring

that defendant contribute to the cost of a life insurance policy she purchased on

defendant's life after the policy required under the PSA terminated in 2016 when

defendant turned sixty-five. Plaintiff also moved for an award of attorneys'

fees.2

1 Defendant sought other relief in his motion. The court's disposition of defendant's other requests is not challenged on appeal. 2 Plaintiff's cross-motion sought other relief that is not at issue on appeal. A-4326-16T1 4 Following oral argument, the court denied defendant's motion for

termination or modification of his alimony obligation, finding defendant's

current income is comparable to the income he earned at the time the parties

were divorced and he otherwise failed to demonstrate a change in circumstances

warranting the requested termination or modification. The court also denied

defendant's request for an award of child support, concluding that although S.M.

and M.M were residing with defendant, defendant's income from his dental

practice substantially exceeded plaintiff's income, which was generally limited

to the alimony she received from defendant, social security benefits and

investment income.

The court further denied plaintiff's motion to compel defendant to

contribute to the cost of the life insurance policy she obtained on defendant's

life following his sixty-fifth birthday. The court concluded the PSA required

defendant to maintain a life insurance policy only until he was sixty-five and

that the parties agreed to revisit the issue at that time. The court also found

plaintiff did not demonstrate the insurance policy she purchased was comparable

to the policy defendant had maintained pursuant to the PSA and denied without

prejudice plaintiff's motion to require that defendant contribute to the policy

payments. In addition, the court denied both parties' motions for attorney's fees.

A-4326-16T1 5 The court entered an order reflecting its rulings on the parties' respective

motions. This appeal followed.

II.

We "accord particular deference to the Family Part because of its 'special

jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super.

457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

We reverse only if there is "'a denial of justice' because the family court's

'conclusions are . . . "clearly mistaken" or "wide of the mark."'" Parish v. Parish,

412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008)). "However, when reviewing legal

conclusions, our obligation is different; '[t]o the extent that the trial court's

decision constitutes a legal determination, we review it de novo.'" Landers v.

Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (alteration in original)

(quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).

The Family Part has authority under N.J.S.A. 2A:34–23 to modify alimony

and child support awards. Spangenberg v. Kolakowski, 442 N.J.Super. 529, 535

(App. Div. 2015). The statute provides that alimony and child support orders "may

be revised and altered by the court from time to time as circumstances may require."

N.J.S.A. 2A:34–23. "Our courts have interpreted this statute to require a party who

A-4326-16T1 6 seeks modification to prove 'changed circumstances[.]'" Spangenberg, 442 N.J.

Super. at 536 (alteration in original) (quoting Lepis v. Lepis, 83 N.J. 139, 157

(1980)).

A motion for modification of alimony or child support "rests upon its own

particular footing and the appellate court must give due recognition to the wide

discretion[,] which our law rightly affords to the trial judges who deal with these

matters." Ibid. (alteration in original) (quoting Martindell v. Martindell, 21 N.J. 341,

355 (1956)). "While an 'abuse of discretion . . . defies precise definition,' we will

not reverse the decision absent a finding the judge's decision 'rested on an

impermissible basis[,]' considered 'irrelevant or inappropriate factors[,]'" ibid.

(alterations in original) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571-

72 (2002)), or "failed to consider controlling legal principles or made findings

inconsistent with or unsupported by competent evidence," ibid. (quoting Storey v.

Storey, 373 N.J. Super. 464, 479 (App. Div. 2004)).

"[T]he changed-circumstances determination must be made by comparing the

parties' financial circumstances at the time the motion for relief is made with the

circumstances which formed the basis for the last order fixing support obligations."

Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). In order to establish

changed circumstances, a "party seeking modification has the burden of showing

A-4326-16T1 7 such 'changed circumstances' as would warrant relief from the support or

maintenance provisions involved." Lepis, 83 N.J. at 157 (quoting Martindell, 21

N.J. at 353).

Defendant contends the court erred by denying his motion for an order

directing that plaintiff pay child support for their two unemancipated children who

began residing with him in September 2016. The court denied the request, finding

defendant failed to demonstrate changed circumstances because his income in 2016

is essentially the same as it was in 2004 when the parties agreed to the PSA, and

defendant's income is substantially higher than plaintiff's.

The court erred by focusing solely on the incomes of the parties and by

not considering a significant changed circumstance warranting consideration of

an award of child support to defendant. When the PSA was entered in 2004,

plaintiff was designated the parent of primary residence for the parties' three

children. Defendant was required to pay child support not only because his

income was greater than plaintiff's, but also because the children did not reside

with him. In defendant's motion, however, he asserted that in September 2016

the parties' two unemancipated children moved from plaintiff's home and have

thereafter resided with him.

A-4326-16T1 8 Child support is a joint obligation of both parents for as long as a child

remains unemancipated. Llewelyn v. Shewchuk, 440 N.J. Super. 207, 214-15

(App. Div. 2015); Lynn v. Lynn, 165 N.J. Super. 328, 343 (App. Div. 1979).

"[A] parent is obligated to contribute to the basic support needs of an

unemancipated child to the extent of the parent's financial ability[.]" Colca v.

Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (second alteration in original)

(citation and internal quotation marks omitted). Plaintiff has an obligation to

contribute to the basic support needs of her unemancipated children. Thus, their

relocation to defendant's residence constitutes a change in circumstances

requiring a reassessment of the child support obligations of the parties. See

Winterberg v. Lupo, 300 N.J. Super. 125, 133 (App. Div. 1997) (finding change

in residential custody supported a finding of changed circumstances warranting

reconsideration of a child support obligation). The court erred by concluding

otherwise. We therefore reverse the court's order denying defendant's motion

for an order directing that plaintiff pay child support and remand for further

proceedings to determine plaintiff's child support obligation, if any, based on all

of the relevant circumstances presented.

We are not persuaded by defendant's claim the court abused its discretion

by finding defendant failed to demonstrate changed circumstances sufficient to

A-4326-16T1 9 warrant modification or termination of his alimony obligation. See Larbig v.

Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) ("Whether an alimony

obligation should be modified based upon a claim of changed circumstances

rests within a Family Part judge's sound discretion."). The record supports the

court's determination that defendant has not suffered any reduction in his income

warranting a modification or termination of his alimony obligation. Defendant's

submissions reflect his gross income and net income have increased since he

entered into the PSA.3 Moreover, defendant made no showing that plaintiff's

income has increased substantially since the divorce. Plaintiff's income consists

of the alimony she receives from defendant, supplemented by social security

benefits.4 Although defendant argues that due to his age and health issues he

3 Defendant did not provide any evidence showing his income in 2004, when the final judgment of divorce was entered. Instead, the record includes a 2003 case information statement showing his gross and net income in 2002. The amount of defendant's adjusted gross income for 2015 is set forth in his 2015 federal tax return and his case information statement. Defendant had not filed his tax returns for 2016 when his motion was considered by the court. In his February 16, 2017 case information statement, he stated that he was "[w]aiting for information concerning [his] 2016 income and [would] supplement" the case information statement "accordingly." The record does not include any competent evidence concerning defendant's 2016 income. 4 The judge's order required that plaintiff provide defendant with information concerning investment income not reflected on the tax return she annexed to her case information statement. There is nothing in the court's order or this opinion

A-4326-16T1 10 will be unable to continue to work at a level sufficient to maintain the same

income, he continues to work and earn at the same level as when the judgment

of divorce was entered. To warrant modification or termination of his alimony

obligation, defendant is required to show a change in circumstances, not that the

relevant circumstances may change in the future. See Lepis, 83 N.J. at 151

("Courts have consistently rejected requests for modification based on

circumstances . . . which are expected but have not yet occurred.").

Similarly, defendant argues he has incurred increased expenses because

his two unemancipated children reside with him and are attending college, but

ignores he has been relieved of his $4000 per month child support obligation, is

entitled to seek child support from plaintiff and the PSA incorporates the parties'

agreement concerning the payment of the children's college expenses. In sum,

we discern no abuse of discretion in the court's determination that defendant

failed to establish "'changed circumstances' . . . warrant[ing] relief from" his

alimony obligation, id. at 157 (quoting Martindell, 21 N.J. at 353), and affirm

precluding defendant from moving for modification or termination of his alimony obligation based on the plaintiff's disclosure of additional income not included in the case information statement she provided in opposition to his February 2017 motion. A-4326-16T1 11 the court's order denying defendant's motion for termination or modification of

the alimony required under the PSA.

Plaintiff argues the court erred by denying her motion for an order

directing that defendant contribute to the cost of the life insurance policy that

plaintiff obtained to secure defendant's alimony obligation when the life

insurance policy defendant was required to maintain lapsed in 2016. As noted,

the PSA required defendant to maintain a life insurance policy securing the

payment of alimony until he was sixty-five and, at that time, the parties would

"revisit the issue." In part, the court denied the motion based on a general

finding that contract principles barred his consideration of plaintiff's request.

Matrimonial agreements are contractual in nature. Pacifico v. Pacifico,

190 N.J. 258, 265 (2007); Flanigan v. Munson, 175 N.J. 597, 606 (2003). A

question regarding the interpretation or construction of a contract is a legal

determination and our review is plenary, with no special deference to the trial

judge's interpretation of the law and the legal consequences that flow from the

established facts. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). "We do

not supply terms to contracts that are plain and unambiguous, nor do we make a

better contract for either of the parties than the one which the parties themselves

A-4326-16T1 12 have created." Maglies v. Estate of Guy, 193 N.J. 108, 143 (2007); Graziano v.

Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).

In denying plaintiff's motion, the court erred by failing to give effect to

the parties' express agreement that they would "revisit" the issue of defendant's

maintenance of a life insurance when defendant turned sixty-five. There are no

contract principles that precluded the court's consideration of plaintiff's reque st.

To the contrary, we interpret the PSA's language to allow plaintiff to raise the

issue of defendant's continued maintenance or contribution to a life insurance

policy following his sixty-fifth birthday and, like any other issue in a

matrimonial dispute, seek recourse in the courts to obtain whatever relief the

law allows.

N.J.S.A. 2A:34-25 states that "[a]limony shall terminate upon the death of

the payer spouse," but provides that "[n]othing in this act shall be construed to

prohibit a court from ordering either spouse to maintain life insurance for the

protection of the former spouse . . . in the event of the payer spouse's . . . death."

Thus, courts may require a paying spouse to obtain a life insurance policy to

protect a supporting spouse's receipt of alimony. See Jacobitti v. Jacobitti, 135

N.J. 571, 578 (1994) (finding N.J.S.A. 2A:34-35 "explicitly allow[s] a court to

order the supporting spouse to maintain life insurance for the benefit of the

A-4326-16T1 13 dependent spouse to protect the dependent spouse if the dependent spouse

outlives the supporting spouse").

We vacate the court's order denying plaintiff's request for defendant's

maintenance or contribution of a life insurance policy protecting plaintiff's

receipt of alimony, and remand for the court to determine the issue. In doing

so, we do not suggest or offer an opinion on the issue. We have decided only

that the court erred by failing to address and decide the issue. On remand, the

court shall consider and determine the issue based on the evidence presented and

determine whether the requested relief is appropriate under the standards set

forth in N.J.S.A. 2A:34-23, which provides for orders for alimony or

maintenance of the parties "after [a] judgment of divorce."

Plaintiff and defendant each argue the court erred by denying their

respective requests for attorneys' fees. We review a court's determination of a

request for counsel fees in a matrimonial case for an abuse of discretion. J.E.V.

v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012). We have carefully

considered the court's detailed findings supporting its decision denying the

parties' requests for attorneys' fees and discern no abuse of discretion in the

court's denial of the parties' motions. See R. 4:42-8; R. 4:42-9(a)(1); see also

Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006).

A-4326-16T1 14 We affirm the court's order denying defendant's motion for modification

or termination of his alimony obligation and the parties' motions for attorneys'

fees, reverse the court's order denying defendant's motion for an order directing

that plaintiff pay child support and plaintiff's motion for defendant's contribution

to the life insurance policy, and remand for further proceedings on defendant's

motion for child support and plaintiff's request for contribution toward t he life

insurance policy. We do not retain jurisdiction.

A-4326-16T1 15