November 7, 2008
DIANE REYNOLDS, PLAINTIFF-RESPONDENT,
FRANK REYNOLDS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1415-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 20, 2008
Before Judges Carchman and Simonelli.
In this matrimonial matter, defendant Frank Reynolds (Frank) appeals from the November 30, 2007 order denying his motion to terminate alimony based on cohabitation, or alternatively, permitting discovery and a plenary hearing. We affirm.
Defendant and plaintiff Diane Reynolds (Diane) married on October 1, 1983. Two children were born of the marriage, F.R., born October 5, 1986, and M.R., born December 8, 1991. A final judgment of divorce incorporating a property settlement agreement (PSA) was entered on July 3, 2003. The PSA required Frank to pay $550 per week for child support, to provide medical insurance for the children, to pay the children's unreimbursed medical, dental and prescription drug expenses, to pay college expenses and to pay other child-related expenses. The PSA also required Frank to pay $700 per week for permanent alimony until his death, Diane's death or Diane's remarriage, whichever first occurred.
In March, 2006, Diane filed a motion to enforce litigant's rights, seeking to compel Frank to pay certain expenses required under the PSA. She also sought alimony and child support arrears and counsel fees. Frank filed a cross-motion seeking, among other things, modification of alimony because of Diane's cohabitation with her boyfriend, discovery and a plenary hearing (the first cohabitation motion). Diane admitted cohabitation but denied receiving any economic benefit from her boyfriend.
The parties negotiated a settlement resulting in the entry of a consent order on April 18, 2006. The parties agreed to reduce Frank's alimony obligation to $600 per week and to reduce his child support obligation to $500 per week. Diane withdrew with prejudice her request for child support and alimony arrears, other payments due under the PSA and counsel fees. Frank withdrew his motion "without prejudice."
Frank failed to comply with the consent order. As a result, on June 16, 2006, Diane filed a motion to enforce litigant's rights and for other relief. The parties resolved the motion by entering into another consent order on August 21, 2006. That order confirmed Frank's reduced alimony and child support obligations.
On October 30, 2007, over a year after entry of the April 18, 2006 consent order, Frank filed a motion to terminate alimony based on cohabitation, or alternatively, for discovery and a plenary hearing and for counsel fees. Diane filed a cross-motion to compel Frank to produce a current accurate case information statement and for counsel fees. After oral argument on November 30, 2007, the motion judge denied Frank's motion, finding the April 18, 2006 consent order resolved the issue of cohabitation. This appeal followed.
Frank contends that his withdrawal of the first cohabitation motion was without prejudice and, therefore, he could re-file it at any time in the future. We disagree.
"When considering an application to modify support, the moving party has the burden to make a prima facie showing of changed circumstances warranting relief prior to the court ordering discovery of the full financial circumstances of each party." Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998) (citing Lepis v. Lepis, 83 N.J. 139, 157-59 (1980)). See also Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). "If that showing is made, the judge then determines whether the changed circumstances justify modification. A plenary hearing may be necessary to adjudicate the matter if there are genuine issues of material fact." Dorfman, supra, 315 N.J. Super. at 515 (citing Tancredi v. Tancredi, 101 N.J.Super. 259, 262 (App. Div. 1968)).
"Whether an alimony obligation should be modified based upon a claim of change in circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004)). "Each and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Id. at 21 (citing Martindell v. Martindell, 21 N.J. 341, 355 (1956)).
Based upon our review of the record, we agree that the April 18, 2006 consent order resolved the issue of cohabitation. In the first cohabitation motion, Frank sought to modify his alimony obligation because Diane was living with her new boyfriend. He received the very relief he sought and much more. His alimony and child support payments were reduced and his alimony and child support arrears and other payments due under the PSA were completely extinguished.
We reject Frank's contention that his alimony obligation was not reduced and that he did not owe alimony arrears because he and Diane orally agreed he would only pay $600 per week. The PSA clearly provides that any modification or waiver of any provision "shall be effective only if made in writing and executed with the same formality as [the PSA]" and that "[t]he failure of either party to insist upon strict performance . . . shall not be construed as a waiver of any subsequent default of the same or similar nature."
We also reject Frank's contention that he could file a new motion on the issue of cohabitation at any time because he dismissed the first cohabitation motion "without prejudice." We perceive that the addition of the language "without prejudice" was to permit Frank to make an appropriate application where bona fide changed circumstances occurred in the future. Because the issue of cohabitation was previously resolved, Frank had to make a prima facie showing of changed circumstances since the entry of the April 18, 2006 consent order. He failed to do so.
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