September 5, 2008
ELIZABETH A. BARLOWE, F/K/A ELIZABETH A. BEATRICE, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
ROBERT J. BEATRICE, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-291-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2008
Before Judges A. A. Rodríguez and Collester.
The parties, Elizabeth A. Barlowe and Robert J. Beatrice, were divorced in 2003, after twenty-three years of marriage. Two children were born of the marriage, now ages twenty-four and nineteen. Both parties are schoolteachers. In addition, husband has a second job at Greystone Park Psychiatric Hospital. The parties agreed on a property settlement agreement (PSA), which is incorporated in the amended judgment of divorce. Paragraph 3B of the judgment provides as follows:
B. The parties shall exchange tax returns each year. When plaintiff's alimony and income equals 90% of defendant's total income, the alimony obligation shall be reduced so that plaintiff's income plus alimony equals 90% of defendant's income.
Three years after the divorce, Beatrice moved for a reduction or termination of his alimony obligation based upon substantial changes in his health. Barlowe cross-moved for a recalculation of child support for the unemancipated son. Both parties requested oral argument.
The judge did not hold oral argument and denied both applications except to grant Barlowe's request that child support be paid through Morris County Probation. The judge found that Beatrice failed to meet his burden of demonstrating changed circumstances. However, the judge sua sponte, reconsidered the denial of recalculation of child support and ordered Beatrice to pay the amount of $139 per week.
The following year, Beatrice moved to: (1) reduce or terminate alimony; (2) modify parenting time; and (3) recalculate child support. Barlowe cross-moved for counsel fees. Once again, the judge decided the motion without oral argument and denied Beatrice's motion to reduce or terminate alimony, but granted a modification of parenting time and a reduction of child support payments from $139 per week to $30 per month.
Beatrice appeals contending that the judge erred by: (1) failing to recognize the substantial change in his circumstances warranting a termination of his alimony obligation; (2) misinterpreting paragraph 3B of the amended judgment of divorce; (3) failing to hold a plenary hearing to examine the conflicting interpretations of paragraph 3B of the amended judgment of divorce and to determine the true financial circumstances of the parties; and (4) failing "to grant both parties' request for oral arguments on this substantive and non-routine discovery motion."
Barlowe cross-appeals, contending that the judge erred by denying her motion for counsel fees and costs. We affirm the appeal and cross-appeal.
It is undisputed that Beatrice had been diagnosed with spinal stenosis. He also suffers from morbid obesity, diabetes and hypertension. However, these problems are of long standing. For example, Randy A. Spector, D.O., submitted a certification that he has been treating Beatrice for ten years. As the judge points out in the statement of reasons, the standard for modification of spousal and child support is set by Lepis v. Lepis, 83 N.J. 139 (1980) and subsequent case law. The standard requires an unanticipated change in circumstances, not a party's voluntary decision.
Here, Beatrice has failed to meet his burden of proof. Moreover, he is still employed at two jobs. He essentially seeks the court's permission to resign from his second job. This is premature. There is no showing that he has been compelled to resign from his second job. In short, Beatrice's medical conditions were not anticipated. There is no indication that if his alimony is reduced, he will quit his second job. If he does not, Barlowe will have to come back into court and have the burden of moving to increase the amount of alimony. In addition, she would have lost out on the months where the alimony was reduced. We agree with Judge Manahan that this application is premature.
Beatrice also argues that if he resigns from his second job, the anticipated reduction in income will trigger the provision in paragraph 3B. We reject that argument also.
First, it has not come to pass yet. More importantly, the focus of the language is on Barlowe's income increasing, not Beatrice voluntarily decreasing his income by leaving his second job. Finally, Beatrice interprets the language of paragraph 3B as excluding from his income the amount he pays in alimony. That is simply not stated in the language of the judgment. Terms such as "income" and "disposable income" are terms of art. Here, the PSA speaks about "income." Therefore, no exclusions should be made.
The interpretation is a legal matter, not a matter that turns on findings of disputed facts. Extensive evidence is not necessary to interpret a contractual provision unless the terms are ambiguous. We conclude that the terms are not ambiguous.
Finally, we note that the judge should have granted oral argument. Rule 5:5-4(a) provides that "the court shall ordinarily grant requests for oral argument" on motions dealing with substantive matters in the Family Part. However, the trial court can deny this request in the exercise of its discretion. Here, we perceive no abuse of discretion.
With respect to counsel fees, we agree with Judge Manahan's ruling:
The Court has carefully considered the parties' requests for counsel fees pursuant to the factors in Rule 5:3-5(c). The Court has denied both parties' request for counsel fees as the Court does not find that either party has acted in bad faith. In the absence of such a finding or other basis by stature, an award is denied.
Once again, we find no abuse of discretion.
Affirmed on appeal and cross-appeal.
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