H.B. v. P.S.

H.B., Plaintiff-Respondent, v. P.S., Defendant-Appellant.

DOCKET NO. A-4873-15T1

DOCKET NO. A-2066-16T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued telephonically November 5, 2018

January 9, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Yannotti, Gilson and Natali.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2624-11.

P.S., appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant P.S.¹ appeals from two post-judgment Family Part orders dated June 13, 2016, and January 20, 2017. The June 13, 2016 order modified defendant's child support obligations retroactive to April 29, 2016, but denied modification of his alimony payments. The January 20, 2017 order denied defendant's applications: 1) for dissolution of a restraining order; 2) to be appointed guardian ad litem for his adult children; and 3) to compel specific performance of the parties' second amended judgment of divorce (JOD).

We issue a single opinion disposing of these two appeals. We affirm the January 20, 2017 order because we conclude the trial court did not abuse its discretion in denying defendant's applications giving rise to that order. However, we reverse the June 13, 2016 order to the extent it denied modification of defendant's alimony payments because the trial court failed to make the necessary factual findings for a proper adjudication of defendant's motion. Similarly, because our careful review of the record does not reveal a rational basis for the court's choice of April 29, 2016, as the retroactive date for defendant's modified child support payments, we remand for the court to make a specific finding as to that issue.

I.

The parties were married in June 1991 and have two unemancipated adult children. Plaintiff H.B. filed for divorce in May 2011. On or about February 20, 2013, she applied for an order requiring defendant to show cause as to why he should not be restrained from contacting plaintiff, her counsel, and the parties' children. A motion judge granted plaintiff's application on February 21, 2013, and entered an amended order that same day imposing interlocutory restraints against defendant pursuant to Rule 4:52-2. The amended order was accompanied, and further amended, by a rider that awarded plaintiff temporary custody of the children and prohibited defendant from having any contact with plaintiff, her counsel, and the children until further court order.

On March 26, 2013, the judge entered a dual Final Judgment of Divorce (JOD) that dissolved the marriage and ordered the parties to submit an amended JOD to include the terms of their settlement agreement. The court entered an amended JOD on May 13, 2013, which incorporated the earlier restraints, obligated defendant to pay $378 per week in child support, and awarded plaintiff permanent alimony of $50,000 per year based on her imputed annual income of $40,000 and defendant's annual salary of $190,000. Asecond amended JOD was entered on September 4, 2013, which corrected and clarified the payment schedules for alimony and child support and, except for certain provisions not relevant to this appeal, incorporated the earlier JODs, including the restraints and support awards.

As amended, the JOD directs plaintiff to "cooperate in respect of executing an[y] paperwork necessary to effectuate" a provision in the JOD that requires defendant to maintain at least $600,000 in life insurance. With respect to alimony, the JOD permits "modification of alimony based on changed circumstances in accordance with the guidelines set forth in [Lepis v. Lepis, 83 N.J. 139 (1980)] and its progeny." However, a separate provision in the JOD, contained in a paragraph addressing the disposition of the parties' former marital home, states that "there will [be] no reduction in alimony while [p]laintiff is living at the former marital home."

The JOD further provided defendant with a fourteen-day window to hire an off-duty police officer to accompany him to the former marital home to conduct an inventory of the parties' personal property. Within seven days after that walk-through, defendant was required to provide to plaintiff's counsel a list of the personalty he wished to keep. Plaintiff had seven days thereafter to respond and object, and any items in controversy were to be "formulated intoone list" and a coin toss would determine which party "gets to pick the first item off the list," with alternating selections between the parties thereafter. The record does not reflect if defendant timely completed the list.

On July 28, 2015, defendant filed an application for modification of his permanent alimony and child support obligations under the JOD. At that time, the parties' children were earning undergraduate degrees, the elder daughter at McGill University in Canada and the younger son at Dartmouth College in New Hampshire, funded by their late paternal grandparents' educational trust. Defendant's certification in support of his application states the former marital residence was still in the foreclosure process at that time.

In a September 28, 2015 order and accompanying statement of reasons, a second motion judge denied defendant's application without prejudice based on the court's finding that defendant failed to show changed circumstances warranted modification of either child support or alimony. Specifically, the judge found defendant failed to satisfy "his threshold burden of showing that he has made a meaningful effort to find" employment.

On October 16, 2015, defendant filed a motion for reconsideration of the September 28, 2015 order. In a January 8, 2016 order, the court: 1) granted defendant's motion for reconsideration; 2) "reserve[d] the right" to modifydefendant's support obligations retroactive to July 28, 2015; 3) scheduled a plenary hearing for April 14, 2016; and 4) required plaintiff to file an updated Case Information Statement (CIS).

Following the April 14, 2016 plenary hearing, the court issued two companion orders dated April 29, 2016, which made certain discovery rulings and scheduled ensuing plenary hearings that were conducted on May 31, 2016, June 2, 2016, and June 7, 2016.

Defendant's expert witness, Dr. David B. Stein, testified at the May 31, 2016 hearing on the issue of defendant's employability. Dr. Stein's testimony indicated defendant's adjusted gross income in 2011, 2012, and 2013 averaged approximately $98,100 per year. In addition, Dr. Stein stated that defendant was capable of earning up to $120,000 in 2016. Defendant testified that his base salary of $50,000 per year with five percent commission on sales could produce up to $90,000 in earnings in 2016.

At the June 2, 2016 hearing, plaintiff testified that her income in 2015 was $62,500, excluding alimony, but the company she worked for closed toward the end of that year, so she obtained a new job earning $25 per hour that she expected would yield approximately $50,000 in income for 2016. Shealso testified that the parties' lifestyle around the time of the JOD was equivalent to someone who was earning approximately $190,000.

In a June 13, 2016 order and accompanying written opinion, the court granted defendant's application to modify child support and reduced the payments to $45 per week per child, retroactive to April 29, 2016. However, the court denied modification of alimony based on defendant's failure to show changed circumstances warranted relief as defendant's "present income and his average income from the time of divorce were similar." The court also determined plaintiff's continued residence at the former marital residence at all relevant times of this litigation compelled denial of any alimony modification under the terms of the JOD.

On or about December 9, 2016, defendant filed applications seeking to: 1) vacate the restraining order; 2) have himself appointed as guardian ad litem for his children; 3) recover personal property from the former marital residence; and 4) compel plaintiff to execute certain insurance documents.

The court heard oral arguments on these motions on January 20, 2017. At the conclusion of the hearing, the judge issued an oral opinion and a written order denying all of defendant's applications. These appeals followed.

II.

Family Part rulings on applications to modify child support and alimony are entitled to our deference on appeal absent a clear abuse of discretion. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Jacoby, 427 N.J. Super. at 116 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). However, as settlement agreements are contractual in nature, Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995), we review de novo the trial court's interpretation of the parties' agreement that was incorporated into their JOD. See Quinn v. Quinn, 225 N.J. 34, 45 (2016) ("An agreement that resolves a matrimonial dispute is no less a contract than an agreement to resolve a business dispute."); Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998) (explaining contract interpretation "is a matter of law for the court subject to de novo review").

A.

Defendant argues the trial court erred in including the children's undergraduate expenses in its modified child support award. We disagree.

The Child Support Guidelines generally "are not applicable when determining the parental obligation for child support of unemancipated college students."...