NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0451-18T2
JOHN DECHIARA,
Plaintiff-Respondent/ Cross-Appellant,
v.
STEPHANIE KLAAR DECHIARA,
Defendant-Appellant/ Cross-Respondent. ______________________________
Argued November 9, 2020 – Decided December 3, 2020
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0653-12.
Stephanie Klaar DeChiara, appellant/cross-respondent, argued the cause pro se (Douglas J. Kinz, on the brief).
Coulter K. Richardson argued the cause for respondent/cross-appellant (Richardson & Richardson, attorneys; Katherine F. Richardson and Coulter K. Richardson, of counsel and on the brief).
PER CURIAM In this post-judgment matrimonial matter, defendant Stephanie Klaar
DeChiara appeals from a May 21, 2018 order reducing the amount of alimony
to be paid by plaintiff John DeChiara. Plaintiff cross-appeals from that same
order, contending the judge's imputation of income and determination that his
income would rebound after one year was erroneous. In addition, plaintiff cross -
appeals from the denial of his request for attorney's fees. We affirm.
Plaintiff and defendant married on August 17, 1991. They divorced on
October 3, 2013. A signed property settlement agreement (PSA) was
incorporated into the parties' final judgment of divorce.
In June 2016, plaintiff filed a motion to reduce his alimony and child
support obligations based on changed circumstances. The parties attended a
post-judgment early settlement panel and mediation to resolve the issues but
were unsuccessful in reaching an agreement. As a result, Judge Michael Paul
Wright scheduled a plenary hearing.
After conducting a plenary hearing, spanning seven days during which
plaintiff and defendant testified at length, Judge Wright rendered an oral
decision, setting forth his findings of fact and conclusions of law based on the
documentary evidence and testimony of the parties. Applying and analyzing the
factors enumerated in N.J.S.A. 2A:34-23(k), Judge Wright determined plaintiff
demonstrated sufficient changed circumstances, warranting a downward
A-0451-18T2 2 modification of his alimony obligation. The judge found "plaintiff's loss of
income [was] due to a change in the company's management, and that the
owner/employer relationship no longer [drove] the income earned, and where
the plaintiff ha[d] lost that employment, and where the plaintiff ha[d] reasonably
secured new income at a lower rate."
However, the judge also concluded that plaintiff stopped his search for
new employment in April 2016, after plaintiff "found employment at a lesser
income," and failed to continue searching for employment that paid a salary
comparable to his former job. Judge Wright found "it was . . . incumbent upon
the [plaintiff] to continue to seek employment at an increased income equal to
that previously earned and utilized to base the [PSA]." The judge stated,
"plaintiff must seek, not only new employment haphazardly, but must set
himself up, create a situation where his skill set is more than it has been, license,
certifications, training, whatever is necessary to become conversant in the new
technologies which will hopefully allow him to earn his former income." Based
on the evidence and testimony adduced at the plenary hearing, Judge Wright
held, "[i]t would appear that plaintiff's income may well be back or headed back
to the levels utilized to fashion the PSA." Because plaintiff demonstrated four
to five years "where [his] income was substantially reduced," the judge found a
one year "temporary downward modification [was] appropriate."
A-0451-18T2 3 Regarding the denial of plaintiff's request for attorney's fees, the judge
reviewed the factors for awarding counsel fees and found "both parties' positions
were very reasonable. Neither party . . . achieved a global victory. Both parties
. . . fared as well as the facts would allow."
Having reviewed the record, we affirm substantially for the reasons set
forth in the comprehensive oral decision rendered by Judge Wright. We add the
following brief comments.
Our scope of review of the Family Part judge's order is limited. "The
modification of alimony is best left to the sound discretion of the trial court."
Innes v. Innes, 117 N.J. 496, 504 (1990). Because family courts exercise
"special jurisdiction and expertise in family matters, appellate courts should
accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394,
413 (1998). We will not disturb a Family Part judge's decision on support
obligations "unless it is manifestly unreasonable, arbitrary, or clearly contrary
to reason or other evidence, or the result of whim or caprice." Jacoby v. Jacoby,
427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J.
Super. 312, 316 (App. Div. 2001)). "A reviewing court should uphold the
factual findings undergirding a trial court's decision if they are supported by
adequate, substantial and credible evidence on the record." MacKinnon v.
A-0451-18T2 4 MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007)).
We "'should not disturb the factual findings and legal conclusions of the
trial judge unless . . . convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice' or when we determine the court has palpably
abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010)
(quoting Cesare, 154 N.J. at 412). We will only reverse the judge's decision
when it is necessary to "'ensure that there is not a denial of justice' because the
family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id.
at 47 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008) (alteration in original)).
Alimony "may be revised and altered by the court from time to time as
circumstances may require." N.J.S.A. 2A:34-23. To warrant such a
modification, a party must demonstrate "changed circumstances." Lepis v.
Lepis, 83 N.J. 139, 150 (1980).
When considering a motion for the modification of a support award, a
court applies the same factors as when determining an initial alimony award:
"the dependent spouse's needs, that spouse's ability to contribute to the
fulfillment of those needs, and the supporting spouse's ability to maintain the
A-0451-18T2 5 dependent spouse at the former standard." Crews v. Crews, 164 N.J. 11, 33
(2000) (quoting Lepis, 83 N.J. at 152). "In computing alimony, '[i]ncome may
be imputed to a party who is voluntarily unemployed or underemployed.'" Gnall
v. Gnall, 432 N.J. Super. 128, 158 (App. Div. 2013) (quoting Golian v. Golian,
344 N.J. Super. 377, 341 (App. Div. 2001)). Imputation of income is a
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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-0451-18T2
JOHN DECHIARA,
Plaintiff-Respondent/ Cross-Appellant,
v.
STEPHANIE KLAAR DECHIARA,
Defendant-Appellant/ Cross-Respondent. ______________________________
Argued November 9, 2020 – Decided December 3, 2020
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0653-12.
Stephanie Klaar DeChiara, appellant/cross-respondent, argued the cause pro se (Douglas J. Kinz, on the brief).
Coulter K. Richardson argued the cause for respondent/cross-appellant (Richardson & Richardson, attorneys; Katherine F. Richardson and Coulter K. Richardson, of counsel and on the brief).
PER CURIAM In this post-judgment matrimonial matter, defendant Stephanie Klaar
DeChiara appeals from a May 21, 2018 order reducing the amount of alimony
to be paid by plaintiff John DeChiara. Plaintiff cross-appeals from that same
order, contending the judge's imputation of income and determination that his
income would rebound after one year was erroneous. In addition, plaintiff cross -
appeals from the denial of his request for attorney's fees. We affirm.
Plaintiff and defendant married on August 17, 1991. They divorced on
October 3, 2013. A signed property settlement agreement (PSA) was
incorporated into the parties' final judgment of divorce.
In June 2016, plaintiff filed a motion to reduce his alimony and child
support obligations based on changed circumstances. The parties attended a
post-judgment early settlement panel and mediation to resolve the issues but
were unsuccessful in reaching an agreement. As a result, Judge Michael Paul
Wright scheduled a plenary hearing.
After conducting a plenary hearing, spanning seven days during which
plaintiff and defendant testified at length, Judge Wright rendered an oral
decision, setting forth his findings of fact and conclusions of law based on the
documentary evidence and testimony of the parties. Applying and analyzing the
factors enumerated in N.J.S.A. 2A:34-23(k), Judge Wright determined plaintiff
demonstrated sufficient changed circumstances, warranting a downward
A-0451-18T2 2 modification of his alimony obligation. The judge found "plaintiff's loss of
income [was] due to a change in the company's management, and that the
owner/employer relationship no longer [drove] the income earned, and where
the plaintiff ha[d] lost that employment, and where the plaintiff ha[d] reasonably
secured new income at a lower rate."
However, the judge also concluded that plaintiff stopped his search for
new employment in April 2016, after plaintiff "found employment at a lesser
income," and failed to continue searching for employment that paid a salary
comparable to his former job. Judge Wright found "it was . . . incumbent upon
the [plaintiff] to continue to seek employment at an increased income equal to
that previously earned and utilized to base the [PSA]." The judge stated,
"plaintiff must seek, not only new employment haphazardly, but must set
himself up, create a situation where his skill set is more than it has been, license,
certifications, training, whatever is necessary to become conversant in the new
technologies which will hopefully allow him to earn his former income." Based
on the evidence and testimony adduced at the plenary hearing, Judge Wright
held, "[i]t would appear that plaintiff's income may well be back or headed back
to the levels utilized to fashion the PSA." Because plaintiff demonstrated four
to five years "where [his] income was substantially reduced," the judge found a
one year "temporary downward modification [was] appropriate."
A-0451-18T2 3 Regarding the denial of plaintiff's request for attorney's fees, the judge
reviewed the factors for awarding counsel fees and found "both parties' positions
were very reasonable. Neither party . . . achieved a global victory. Both parties
. . . fared as well as the facts would allow."
Having reviewed the record, we affirm substantially for the reasons set
forth in the comprehensive oral decision rendered by Judge Wright. We add the
following brief comments.
Our scope of review of the Family Part judge's order is limited. "The
modification of alimony is best left to the sound discretion of the trial court."
Innes v. Innes, 117 N.J. 496, 504 (1990). Because family courts exercise
"special jurisdiction and expertise in family matters, appellate courts should
accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394,
413 (1998). We will not disturb a Family Part judge's decision on support
obligations "unless it is manifestly unreasonable, arbitrary, or clearly contrary
to reason or other evidence, or the result of whim or caprice." Jacoby v. Jacoby,
427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J.
Super. 312, 316 (App. Div. 2001)). "A reviewing court should uphold the
factual findings undergirding a trial court's decision if they are supported by
adequate, substantial and credible evidence on the record." MacKinnon v.
A-0451-18T2 4 MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007)).
We "'should not disturb the factual findings and legal conclusions of the
trial judge unless . . . convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice' or when we determine the court has palpably
abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010)
(quoting Cesare, 154 N.J. at 412). We will only reverse the judge's decision
when it is necessary to "'ensure that there is not a denial of justice' because the
family court's 'conclusions are [] "clearly mistaken" or "wide of the mark."'" Id.
at 47 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008) (alteration in original)).
Alimony "may be revised and altered by the court from time to time as
circumstances may require." N.J.S.A. 2A:34-23. To warrant such a
modification, a party must demonstrate "changed circumstances." Lepis v.
Lepis, 83 N.J. 139, 150 (1980).
When considering a motion for the modification of a support award, a
court applies the same factors as when determining an initial alimony award:
"the dependent spouse's needs, that spouse's ability to contribute to the
fulfillment of those needs, and the supporting spouse's ability to maintain the
A-0451-18T2 5 dependent spouse at the former standard." Crews v. Crews, 164 N.J. 11, 33
(2000) (quoting Lepis, 83 N.J. at 152). "In computing alimony, '[i]ncome may
be imputed to a party who is voluntarily unemployed or underemployed.'" Gnall
v. Gnall, 432 N.J. Super. 128, 158 (App. Div. 2013) (quoting Golian v. Golian,
344 N.J. Super. 377, 341 (App. Div. 2001)). Imputation of income is a
"discretionary matter not capable of precise or exact determination but rather
requires a trial judge to realistically appraise capacity to earn and job
availability." Bermeo v. Bermeo, 457 N.J. Super. 77, 85 (App. Div. 2018)
(quoting Gnall, 432 N.J. Super. at 158). The trial court's decision on the
imputation of income will not be disturbed unless shown to be a mistaken
exercise of discretion. Gnall, 432 N.J. at 158 (citing Robertson v. Robertson,
381 N.J. Super. 199, 206 (App. Div. 2005)).
Based on the testimony and evidence adduced during the multi-day
plenary hearing, Judge Wright found plaintiff demonstrated changed
circumstances, warranting a temporary modification of his alimony obligation.
The judge noted plaintiff took one of the first jobs he was offered and then
abandoned searching for a job that provided a similar income as he earned at the
time of the PSA. The judge considered plaintiff's employment history and his
ability to obtain additional training, certifications, and licenses that would
A-0451-18T2 6 improve his opportunities to earn income commensurate with his earnings at the
time of the JOD.
The judge's statement of reasons for the temporary downward
modification of alimony and his imputation of income that plaintiff would earn
in the near future is supported by substantial credible evidence in the record.
We discern no abuse of discretion in the judge's factual and legal determinations
as to the appeal challenging the temporary downward modification of alimony
and cross-appeal challenging the imputation of future income to plaintiff.
We next consider whether the judge erred in denying plaintiff's request
for attorney's fees. An award of attorney's fees in a matrimonial action rests in
the discretion of the Family Part judge. R. 5:3-5(c); Tannen v. Tannen, 416 N.J.
Super. 248, 285 (App. Div. 2010) (citing Eaton v. Grau, 368 N.J. Super. 215,
225 (App. Div. 2004)). On appeal, the Family Part judge's decision regarding
attorney's fees will be upheld absent a showing of abuse of discretion. Ibid.
In deciding whether to award attorney's fees, the court should consider:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to
A-0451-18T2 7 enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
Here, Judge Wright explained his reason for rejecting the counsel fee
request consistent with these factors. He determined "[a] review of the relevant
factors, establishe[d] that both parties' positions were very reasonable." He also
explained "[n]either party achieved a global victory" because both parties
received less than the full relief requested. In addition, he found the parties were
essentially in equivalent financial positions.
With these findings, there is no basis to disturb the judge's denial of
plaintiff's request for counsel fees. We also discern no abuse of discretion
because the judge did not specifically enumerate every factor in reviewing the
request for attorney's fees. See Reese v. Weis, 430 N.J. Super. 552, 585 (App.
Div. 2013) (affirming denial of attorney's fees despite the court's failure to
address every factor under Rule 5:3-5(c)).
Affirmed.
A-0451-18T2 8