Kathleen Servis v. Gamal Halaka

• Court: New Jersey Superior Court Appellate Division
• Decided: August 21, 2024
• Docket: A-0777-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0777-22

KATHLEEN SERVIS, f/k/a HALAKA,

Plaintiff-Appellant/ Cross-Respondent,

v.

GAMAL HALAKA,

Defendant-Respondent/ Cross-Appellant. ________________________

Submitted March 18, 2024 – Decided August 21, 2024

Before Judges Berdote Byrne and Bishop-Thompson.

On appeal from the Superior Court New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-0128-07.

Pellettieri Rabstein & Altman, attorneys for appellant/ cross-respondent (John A. Hartmann, III, of counsel and on the briefs; Nicole J. Huckerby, on the briefs).

Kozyra & Hartz, LLC, attorneys for respondent/cross- appellant (Judith A. Hartz, of counsel and on the brief; Ronald J. Herman, on the brief). PER CURIAM

In this post judgment matrimonial matter, plaintiff Kathleen Servis f/k/a

Kathleen Halaka appeals a September 30, 2022 order terminating her alimony

and denying counsel fees. Defendant Gamal Halaka cross-appeals from the

same order, arguing the trial court erred in not terminating alimony effective as

of his retirement date of September 30, 2022 and denying counsel fees. After a

careful review of the record, and in light of the prevailing legal standards, we

affirm the challenged order substantially for the reasons expressed in Judge

William G. Mennen's well-reasoned and comprehensive opinions.

I.

The parties are fully familiar with the procedural history and facts of this

case and only the salient facts re set forth herein. We need not reiterate the facts

and procedural history and instead rely upon Judge Mennen's factual findings,

which are incorporated herein by reference.

The parties were married in March 1987 and have two children.

Defendant was initially employed as a physical therapist with a medical group.

Plaintiff has an associate's degree and earned $18,000. In 1990, defendant

started his own physical therapy practice. Shortly thereafter, plaintiff became a

stay-at-home mother.

A-0777-22 2 A Final Judgment of Divorce (FJOD) was entered on March 9, 2009.

Plaintiff was awarded $82,642 from the sale of the marital home, $110,000 from

defendant's SEP-IRA, and $30,000 as her share of defendant's business.

Defendant was ordered to pay $4,583.33 per month in permanent alimony to

plaintiff and $40,000 in counsel fees.

Defendant appealed the portion of the FJOD that awarded plaintiff

permanent alimony and counsel fees and obligated him to pay a greater share of

the marital debt. We reversed the alimony award and remanded for

reconsideration of alimony but affirmed the FJOD in all other aspects. Halaka

v. Halaka, No. A-3619-08 (App. Div. May 10, 2010) (slip op. at 1). Thereafter,

an amended FJOD was entered on May 31, 2013, which reduced defendant's

permanent alimony obligation to $2,606 per month effective June 16, 2010.

From 2009 through September 2022, defendant paid plaintiff more than

$415,000 in alimony.

Defendant was previously diagnosed with carpal tunnel syndrome and

osteoarthritis in his hands. According to defendant, he experienced pain in his

wrist and finger joints, especially after providing physical therapy to his

patients. At the time of his application, defendant experienced cramping and

pain with daily activities. Defendant argues that because of his declining health

A-0777-22 3 and having reached full retirement age as of July 15, 2021, he closed his business

and retired with full social security benefits.

In a June 15, 2022 letter, defendant notified plaintiff that he intended to

retire by the end of September 2022 and requested that plaintiff sign a consent

order terminating his alimony obligation following his retirement. Plaintiff

refused to sign the proposed consent order but expressed interest in reaching a

resolution without court intervention. The parties then exchanged three years

of tax returns and their case information statements (CISs). Plaintiff requested

additional financial documents regarding defendant's business but none were

provided.

After failing to reach an amicable resolution, defendant moved to

terminate alimony based on his September 30, 2022 retirement and sought an

award of counsel fees. In his moving certification, defendant asserted that the

sole source of income after the closure of his practice was his $3,122 per month

Social Security benefit. Excluding his alimony obligation, defendant's Schedule

A, B, and C expenses totaled $7,014. He had two assets: a SEP-IRA, which

was distributed at the time of divorce and $518,000 in a brokerage account.

Defendant had only $200,000 in assets after subtracting the value of the

brokerage account and excluding the SEP-IRA from the ability to pay alimony

A-0777-22 4 calculation. Defendant also had considerable debt in the amount of a $280,000

Small Business Administration loan and $34,000 in credit card debt.

In response, plaintiff cross-moved, seeking a denial of defendant's motion

or, in the alternative, discovery, a plenary hearing, and an award of counsel fees.

Plaintiff certified that she received $3,117 per month in alimony, $1,720 per

month from her employment at a car dealership, $1,007.80 per month from

Social Security spouse benefits, and $140.10 per month from an annuity.

Plaintiff also received $250 per month from her son who lived with her.

Plaintiff's monthly Schedule A, B, and C expenses totaled $5,424.00 per month.

Plaintiff had approximately $23,000 in a brokerage account and two bank

accounts that totaled $11,000.

Following oral argument, Judge Mennen rendered an oral opinion and

issued a supplemental statement of reasons on September 30, 2022, granting

defendant's motion to terminate plaintiff's alimony. In finding that defendant

established a "good faith retirement," the judge ordered the termination of

defendant's alimony obligation with an eight-month step-down: effective

November 1, 2022, plaintiff's alimony was reduced to $1,500; effective

February 23, 2023, plaintiff's alimony was reduced to $750 per month; and

effective June 1, 2023, plaintiff's alimony was terminated.

A-0777-22 5 In his comprehensive opinions, Judge Mennen addressed each of the

factors set forth in N.J.S.A. 2A:34-23(j)(3). He also reviewed plaintiff's ability

to have adequately saved for retirement, found that the financial responsibilities

associated with the parties' children were addressed in the amended FJOD, and

noted the marital assets distributed to plaintiff. Judge Mennen then determined

defendant's retirement was a "significant change in circumstances" warranting a

modification, ultimately terminating "in accordance with the step-down

approach."

In considering plaintiff's cross-motion, Judge Mennen concluded there

were no genuine issues of material facts to be resolved by a plenary hearing.

The judge reasoned that the conflicting certifications of the parties were

"conclusory," "not factual," and "largely contested [d]efendant's conclusions of

law."

II.

On appeal, plaintiff raises three arguments. First, the judge erred in

terminating defendant's alimony obligation because he failed to meet his burden

of proof by a preponderance of the evidence. Second, the judge erred in not

conducting a plenary hearing. Lastly, the judge erred in not awarding counsel

fees.

A-0777-22 6 In his cross-appeal, defendant contends that the trial judge erred by not

terminating his retirement on September 30, 2022, the effective date of his

retirement. Defendant further contends that the judge erred by not awarding

counsel fees.

Our review of a Family Part judge's findings is limited. We "afford

substantial deference to the Family Part's findings of fact because of that court's

special expertise in family matters." W.M. v. D.G., 467 N.J. Super. 216, 229,

(App. Div. 2021) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Under

that deferential standard of review, we are bound to uphold a finding that is

supported by sufficient credible evidence in the record." Moynihan v. Lynch,

250 N.J. 60, 90 (2022). "We will reverse only if we find the [court] clearly

abused [its] discretion." Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012).

We apply that deference to a Family Part judge's decision regarding a

motion to amend a marital-support obligation. Cardali v. Cardali, 255 N.J. 85,

107 (2023); see also Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)

("Whether [a support] obligation should be modified . . . rests within a Family

Part judge's sound discretion."). Thus, a Family Part judge's decision regarding

a support obligation should not be disturbed unless "the court made findings

inconsistent with the evidence or unsupported by the record, or erred as a matter

A-0777-22 7 of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). We review

questions of law de novo. Amzler v. Amzler, 463 N.J. Super. 187, 197 (App.

Div. 2020).

An alimony order establishes only the present support obligation and is

"always subject to review and modification on a showing of 'changed

circumstances.'" Cardali, 255 N.J. at 93 (quoting Lepis v. Lepis, 83 N.J. 139,

146 (1980)); Crews v. Crews, 164 N.J. 11, 28 (2000). An alimony order "may

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

require." N.J.S.A. 2A:34-23; Amzler, 463 N.J. Super. at 197.

Pursuant to Crews, the judge undertakes a two-step inquiry when a party

moves for the reduction or termination of alimony. 164 N.J at 28. The judge

must first determine whether the moving party has made a prima facie showing

of changed circumstances. R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div.

2014); Cardali, 255 N.J. at 101. The moving party must demonstrate a change

in circumstances from those existing when the prior support award was fixed.

Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990); see also Donnelly v.

Donnelly, 405 N.J. Super. 117, 127-29 (App. Div. 2009).

The second step requires that "the party seeking modification of an

alimony award 'must demonstrate that changed circumstances have substantially

A-0777-22 8 impaired the [movant's] ability to support himself or herself.'" Crews, 164 N.J.

at 28 (quoting Lepis, 83 N.J. at 157). "[T]he ability to support oneself must be

understood to mean the ability to maintain a standard of living reasonably

comparable to the standard enjoyed during the marriage." Ibid.

A.

After a review of the record and the applicable governing principes, we

conclude plaintiff's arguments lack merit. We are satisfied the judge did not

abuse his discretion in finding defendant had established a change in

circumstances based on his good faith retirement. We therefore affirm the order

substantially for the reasons expressed in the cogent opinions. We add the

following brief comments regarding plaintiff's contention concerning discovery

and the plenary hearing.

We "generally defer to a trial court's disposition of discovery matters

unless the court has abused its discretion, or its determination is based on a

mistaken understanding of the applicable law." Pomerantz Paper Corp. v. New

Cmty. Corp., 207 N.J. 344, 371 (2011) (quoting Rivers v. LSC Partnership, 378

N.J. Super. 68, 80 (App. Div. 2005).

After a party seeking an alimony modification has made a prima facie

showing, "a court may order discovery and hold a hearing to determine the

A-0777-22 9 supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999).

"Although equity demands that spouses be afforded an opportunity to seek

modification, the opportunity need not include a hearing when the material facts

are not in genuine dispute." Lepis, 83 N.J. at 159. However, when a party has

"clearly demonstrate[d] the existence of a genuine issue as to a material fact," a

hearing is necessary. Ibid. Applying that well-settled standard, we discern no

abuse of discretion in any of the judge's rulings relating to discovery and the

plenary hearing. Plaintiff's opposing certification did not present any genuine

issues of material fact. Moreover, plaintiff did not refute defendant's medical

diagnosis. Therefore, the judge correctly found that discovery would not have

been helpful, would have served to "erode the parties' limited resources," and

that there was no factual dispute regarding the basis for defendant's retirement.

B.

We now turn to defendant's contention that the judge erred in not

terminating his alimony obligation on the effective date of his retirement,

September 30, 2022. As noted above, we have no cause to disturb the court's

ruling that defendant established a change in circumstances supporting the

termination of alimony. We add the following brief comments.

A-0777-22 10 Defendant contends the judge erred in ordering a step-down approach to

the termination of alimony because plaintiff had notice of defendant's intention

to retire as of June 15, 2022, and the judge's findings regarding the parties'

reasonable expectations about defendant's retirement supported an immediate

termination. Contrary to defendant's contentions, the record supports the trial

judge's decision to implement a step-down approach before ultimately

terminating alimony. Here, the judge's decision to add a step-down provision

was based on the presumption that it would have been a "shock to the system"

for plaintiff's alimony to be abruptly terminated. Consequently, a "soft landing"

was required. Based on the record, the judge appropriately ordered a two-step

modification of alimony before plaintiff's alimony was terminated. We,

therefore, perceive no abuse of discretion in the judge's determination.

III.

Both parties argue the judge erred in not awarding counsel fees. Plaintiff

claims the judge erred in determining the parties' financials were in "parity"

because defendant's CIS showed that he was in a better financial position. In

contrast, defendant argues plaintiff's application was made in bad faith because

she expected defendant to continue to work or deplete his assets, as found by

the judge. We are not persuaded by the parties' arguments.

A-0777-22 11 An award "of counsel fees is discretionary, and will not be reversed except

upon a showing of an abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46

(App. Div. 2011) (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444

(2001)). Rule 5:3-5(c) lists nine factors the court must consider when deciding

to award fees. In the opinion, Judge Mennen analyzed Rule 5:3-5(c) and Rules

of Professional Conduct 1.5(a) in assessing the reasonableness of each party's

position and clearly stated "factual findings and correlate[d] them with the

relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980); see R.

1:7-4(a). Thus, we are satisfied the record supports the judge's determination.

Affirmed.

A-0777-22 12