K.M.B. v. W.G.B. (FM-08-0342-15, GLOUCESTER COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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).
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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
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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
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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
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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
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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
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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
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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.]
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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
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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.
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