K.M.B. v. W.G.B. (FM-08-0342-15, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 31, 2022
• Docket: A-0914-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0914-20

K.M.B.,

Plaintiff-Respondent,

v.

W.G.B.,

Defendant-Appellant. _______________________

Submitted December 15, 2021 – Decided March 31, 2022

Before Judges Gooden Brown and Gummer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0342-15.

David T. Garnes, attorney for appellant.

Puff & Cockerill LLC, attorneys for respondent (Christine C. Cockerill, on the brief).

PER CURIAM In this post-judgment matrimonial appeal, defendant W.G.B.1 appeals an

order reinstating his alimony obligation and an order denying his motion for

reconsideration. Because the trial court did not err in reinstating defendant's

alimony obligation without a plenary hearing, we affirm.

We glean these facts from the record, focusing on defendant's alimony

obligation, which is the subject of this appeal. The parties married in 1999, had

a daughter in 2002, and divorced on December 17, 2015, by way of a final

judgment, which incorporated the parties' property settlement agreement (PSA).

Plaintiff became permanently disabled as a result of something that occurred

during childbirth and has been receiving social security disability benefits since

then. In April 2015, prior to the parties' divorce, defendant sustained injuries in

a car accident, which, according to defendant, rendered him disabled such that

he receives social security disability benefits. In the PSA, the parties agreed

defendant would have an imputed annual income of $35,000, a weekly alimony

obligation of $125 effective December 1, 2015, and a weekly child support

obligation of $136 effective June 1, 2015, which would be reduced to $112 when

his alimony obligation began on December 1, 2015. Because of defendant's

1 We use initials to protect the privacy of the parties and preserve the confidentiality of certain records because we discuss the parties' financial circumstances. See R. 1:38-3(d)(1). A-0914-20 2 scheduled foot surgery, the parties agreed in the PSA to suspend enforcement of

his alimony and child support obligations until April 11, 2016, which was the

anticipated end of a twelve-week surgical rehabilitation period. At that time,

his alimony obligation would be reviewed and his ability to earn money, obtain

social security disability benefits, and pay alimony would be determined. The

record is devoid of any indication that review occurred.

On November 2, 2016, defendant moved to reduce his alimony and child

support obligations. Plaintiff cross-moved, asking the court to require defendant

to make a lump-sum payment towards his child support and alimony obligation

arrears, among other things. On March 17, 2017, the court issued an order

holding defendant's motion "pending re-list," scheduling a hearing, and

requiring defendant to provide proof of his social-security award and pay $1,000

towards his child support and alimony arrears. The court subsequently issued

another interim order, holding the motion and cross-motion "pending re-list" and

requiring defendant to provide proof of his social security award.

On June 8, 2017, the day of the scheduled plenary hearing, the parties

resolved the issues amicably and entered into a consent order. As memorialized

in the order, the parties agreed, among other things, to suspend defendant's

alimony obligation beginning June 1, 2017, and to reduce his weekly child

A-0914-20 3 support obligation. Additionally, the parties "warrant[ed] and represent[ed] that

neither party has the ability to work and earn any additional income as of [June

8, 2017]" and defendant "represent[ed] that he is unable to work as a performer

at this time."

On May 13, 2020, defendant moved to emancipate the parties' then

seventeen-year-old daughter and to "[r]ecoup monies taken for back child

support that is not owed." In support of the motion, defendant asserted he and

his wife had received "a letter from the government stating that both [their]

stimulus checks . . . were going towards back child support [he] owed."

Defendant sought: the "[o]rder that was put in place on 5/5/17 be effective

12/01/17 like originally agreed upon"; "[a]ll back child support that was

collected be paid back to [defendant] . . . includ[ing] [s]timulus checks ($2400)

from both [defendant's] wife and [defendant]"; and the emancipation of their

daughter with "all support obligations terminated on 6/16/2020."

Plaintiff cross-moved, seeking, among other things, an order requiring

defendant to provide an updated case information statement for purposes of

reviewing defendant's alimony and child support obligations and to recommence

weekly alimony payments of $125, which had been suspended since 2017. She

A-0914-20 4 asserted defendant had been performing as a musician in bands and as a solo

artist and asserted "[h]e must be earning money from these 'gigs.'"

Opposing plaintiff's cross motion, defendant submitted an "updated" case

information statement in which he reported his gross earned income for 2019

was $27,610.14. He also submitted his 2019 W-2 statements, which showed

that in addition to his $1,500 monthly social security disability benefits,

defendant in 2019 had earned $12,474.36 from one employer and $3,749 .74

from another employer, for a total income of $34,224.10. Defendant did not ask

for a plenary hearing, did not ask for discovery, and did not ask for leave to

submit an expert report.

At oral argument, plaintiff's counsel argued defendant's W-2 statements

demonstrated he had earned income in 2019, which he had not previously

disclosed. She also contended defendant was earning additional income, which

he did not report, from his work as a musician. Defendant testified that although

he had "tried" to work twice and had "made money" in 2019, he "could not work"

and he had "not had a job in 2020." Defendant also asserted he had tried but

was unable to perform with a band due to his injuries and, although he had

performed virtually via Facebook Live several times during the COVID-19

pandemic, including twice in the prior six weeks, he had received only a minimal

A-0914-20 5 amount in tips. He asserted he "do[esn't] have an income." When the trial court

questioned defendant about his 2019 W-2 statements, he responded he had

"pushed [him]self," but "[t]he pain was too much" and he "couldn't work

anymore."

After oral argument, the trial court placed a decision on the record and

issued an order denying defendant's motion. In addition to other aspects of

plaintiff's cross-motion, the court granted plaintiff's request to reinstate weekly

alimony payments of $125, finding "that money could be earned" as "[i]t was

earned previously." Although the court understood defendant had stopped

working because there was "pain involved," it found defendant had "done things

like performing as recently as a couple of weeks ago" and was "able . . . to be

active in some way . . . which show[ed] . . . he's able to do some things in order

to get some income." Finding defendant's income was "approximately the same

as it was before" when the parties had entered the PSA, the court reinstated

immediately the agreed-upon alimony set forth in the PSA.

Defendant moved for reconsideration. In his certification, defendant

asserted he "was not given the chance to explain what [he was] going through

personally" and the motion judge "did not get a complete understanding of [his]

current situation." He argued "[j]ust because [he had] attempted to work in

A-0914-20 6 2019, [that] should not be a reason why alimony . . . should be reinstated,"

alleging he had "not worked in 2020 at all." Plaintiff opposed his motion and

cross-moved for fees.

During oral argument, defense counsel faulted the court for rendering a

decision with no "expert testimony indicating that [defendant] ha[d] the ability

[to pay his alimony obligation] based upon that unsuccessful effort [to work] in

2019." He asserted defendant "does not have capacity to work." When asked

by the court how defendant met the standard for reconsideration, defense

counsel responded, "it really comes . . . down to just an equity argument . . .

especially as it relates to his disability . . . [as] it relates to his ability to work."

The trial court denied the motion.

Defendant makes one argument on appeal, contending the trial court

abused its discretion by reinstating his alimony obligation despite his disability

and without a plenary hearing to determine his ability to pay it.

"We review the Family Part judge's findings in accordance with a

deferential standard of review, recognizing the court's 'special jurisdiction and

expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83

(2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We reverse "only

when a mistake must have been made because the trial court's factual findings

A-0914-20 7 are 'so manifestly unsupported by or inconsistent with the competent, relevant

and reasonably credible evidence as to offend the interests of justice . . . .'"

Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015)

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484

(1974)). We review de novo questions of law. Amzler v. Amzler, 463 N.J.

Super. 187, 197 (App. Div. 2020). We review under an abuse-of-discretion

standard a trial court's alimony-modification decision, Spangenberg, 442 N.J.

Super. at 536, and reconsideration denial, Branch v. Cream-O-Land Dairy, 459

N.J. Super. 529, 541 (App. Div. 2019).

Settlement of matrimonial disputes is "encouraged and highly valued in

our system." Quinn v. Quinn, 225 N.J. 34, 44 (2016). Settlement agreements

are governed by basic contract principles and, as such, courts should discern and

implement the parties' intent. J.B. v. W.B., 215 N.J. 305, 326 (2013). "The

court's role is to consider what is written in the context of the circumstances at

the time of drafting and to apply a rational meaning in keeping with the

'expressed general purpose.'" Pacifico v. Pacifico, 190 N.J. 258, 266 (2007)

(quoting N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)).

Generally, a court is "authorized to modify alimony and support orders 'as

the circumstances of the parties and the nature of the case' require." Halliwell

A-0914-20 8 v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (quoting N.J.S.A.

2A:34-23). A party seeking a modification of alimony and child support

obligations must demonstrate changed circumstances "as would warrant relief."

Lepis v. Lepis, 83 N.J. 139, 157 (1980); see also Spangenberg, 442 N.J. Super.

at 536.

"A hearing is not required or warranted in every contested proceeding for

the modification of a judgment or order relating to alimony." Murphy v.

Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998); see also Palombi v.

Palombi, 414 N.J. Super. 274, 290 (App. Div. 2010) ("Not every Lepis

application requires a plenary hearing."). "[A] party must clearly demonstrate

the existence of a genuine issue as to a material fact before a hearing is

necessary." Lepis, 83 N.J. at 159; see also Bermeo v. Bermeo, 457 N.J. Super.

77, 83 (App. Div. 2018) (a party "is entitled to a plenary hearing only when

demonstrating the existence of a genuine issue of material fact . . . .").

In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded. Only statements to which a party could testify should be considered. Thus, if the sole dispute centered around the supporting spouse's earnings, the disclosure of income tax returns might render a hearing unnecessary.

[Lepis, 83 N.J. at 159.]

A-0914-20 9 Here, no genuine issue of material fact required the trial court to conduct a

plenary hearing before deciding the parties' motions.

In the PSA, the parties agreed defendant's weekly alimony obligation was

$125 based on an imputed yearly income of $35,000. Because of defendant's

scheduled surgery, the parties agreed to suspend enforcement of his alimony

obligation. Defendant subsequently moved to reduce his alimony obligation.

Based on defendant's representation he was unable to work due to his disability

and unable to earn additional income, the parties entered into a consent order in

2017 suspending defendant's alimony obligation.

As a result of defendant's motion to emancipate the parties' daughter and

to recoup child support payments and plaintiff's cross-motion, evidence –

defendant's W-2 statements, his updated case information statement, and his

own testimony – was submitted to the court demonstrating in 2019 defendant

had been able to work, had been able to earn additional income, and had earned

a total annual income of $34,224.10, nearly the amount the parties had

considered when they had agreed in the PSA to a weekly alimony obligation of

$125. That undisputed evidence, not an assumption of defendant's earning

capacity, was the basis for the court's reinstatement of defendant's alimony

obligation, and it clearly demonstrated a change in circumstance from the

A-0914-20 10 representations defendant had made in the 2017 consent order about his inability

to work or to earn additional income. The trial court did not abuse its discretion

when, based on that evidence, it reinstated the alimony obligation on which the

parties had expressly agreed in the PSA. Nor did it abuse its discretion in

denying defendant's motion for reconsideration.

Affirmed.

A-0914-20 11