May 15, 2009
GARY GASPARI, PLAINTIFF-APPELLANT,
KAREN GASPARI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-5186-83-J.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 5, 2009
Before Judges R. B. Coleman and Sabatino.
In this post-judgment matrimonial matter, Gary Gaspari ("the ex-husband") appeals from a February 8, 2008 order of the Family Part. The order requires him to pay for the rent and utilities of his former spouse, respondent Karen Gaspari ("the ex-wife"), for premises comparable to the apartment that the parties resided in together during their marriage, which ended in 1983. We reverse.
The parties were married in 1967. In or about 1970, they moved into a unit in a two-family residence at 181-183 Front Street in South Plainfield, New Jersey. The residence was owned by the ex-husband's parents. The parties lived there, along with their two children, until the time of their separation and divorce.
The divorce action was resolved amicably through a two-page Final Judgment of Divorce ("FJD") entered on August 23, 1983. Pursuant to the FJD, the ex-wife retained primary custody of the children, who were then both minors. The ex-husband agreed to pay child support through the time of the children's emancipation. The FJD did not provide for any alimony.
Pertinent to the present appeal, the FJD recited that "the [ex-]husband shall be responsible for the rent and all utilities on the apartment presently occupied by the infant children and [the ex-wife] at 183 Front Street, South Plainfield, New Jersey[.]" This financial commitment was in addition to the exhusband's promise in the FJD to pay his ex-wife a specified amount of weekly child support.
The ex-husband complied with this term of the FJD for many years. Since his parents did not charge rent for the apartment, the ex-husband only needed, as a practical matter, to pay for the ex-wife's utilities.
The two children became emancipated, respectively, in 1986 and in 1998. Meanwhile, the ex-wife continued to reside in the apartment, as subsidized by the ex-husband.
After the second child attained emancipation, the ex-husband filed a motion in 2000 with the Family Part seeking to terminate his obligation to pay the rent and utilities. The ex-wife filed a cross-motion, requesting that her former spouse be obligated to pay rent and utilities for a residence equivalent to the apartment. At the time these motions were pending in 2000, the ex-husband's mother was in the process of selling the premises to a third party. There was some uncertainty at that time whether the new premises owner would permit the ex-wife to remain there.
In the fall of 2000, a Family Part judge*fn1 heard the exhusband's motion and the ex-wife's cross-motion. The judge conducted a plenary hearing and heard testimony from the parties about their respective intentions under their PSA. The judge also considered a videotaped deposition of the ex-husband's former counsel from the divorce action.
The ex-wife asserted at the 2000 plenary hearing that she had negotiated for the rent and utilities to be paid to her indefinitely as, in essence, an indirect form of alimony that would be unaffected by the children's emancipation. The ex-husband and his former attorney, on the other hand, maintained that the duty to pay rent and utilities was contemplated to cease once the children both reached the age of majority.
After what he described as "[c]areful review of all the evidence presented by both parties," and "in consideration of [the applicable] laws," the first judge issued a bench ruling on September 12, 2000. In that ruling, the judge held the ex-husband liable to continue to pay the ex-wife the rent and utilities for the apartment "until such time as she no longer resides at 183 Front Street[.]" The judge denied, however, the ex-wife's cross-motion for the costs of a comparable apartment if she were forced to move out. The judge declined to reach the question of whether a new premises owner would have the right to evict the ex-wife, noting that such an asserted right would have to be litigated in "another lawsuit" involving the new owner, presumably in the Special Civil Part. The judge also denied the ex-wife's application for counsel fees and sanctions.
The first judge issued an order reflecting the terms of his disposition on January 18, 2001. Neither party appealed that order. Nor did either former spouse file a timely motion to set the order aside under Rule 4:50-1.
As it turned out, the new owner decided to let the ex-wife remain in the apartment. Meanwhile, as directed by the court, the ex-husband continued to pay the rent and utilities.
The apartment building was sold again in July 2007. This subsequent purchaser demanded that the ex-wife vacate the premises so that he could move in there himself. Consequently, the ex-wife moved out in September 2007 and began living with her adult daughters and a grandchild.
In January 2008, the ex-wife filed a motion requesting that the ex-husband be ordered to pay her rent and utilities at a level equivalent to what was associated with her prior apartment. The ex-husband opposed the motion. A Family Part judge ("the second judge") decided the matter on the papers, and granted the ex-wife's application.
In his written order of February 8, 2008, which contained his statement of reasons, the second judge attempted to distinguish the context of the first judge's ruling. He perceived that at the time the earlier motion was filed in 2000, "there [was] an absence of any risk threatening [the ex-wife] to vacate her home." In essence, the second judge found that the first judge had ruled on an issue that was "not ripe."
The ex-husband now appeals, arguing that the first judge's order was improperly disregarded by the second judge. As part of his contention, the ex-husband invokes the doctrine of the "law of the case." He argues that the second judge was bound to follow the first judge's determination, i.e., that the ex-wife had no right under the FJD to be paid rent or utilities after she was required to vacate the former marital residence.
The "law of the case" doctrine generally requires parties and the trial court to adhere to an order entered at an earlier phase of the case, particularly if that order was thereafter affirmed on appeal. In such circumstances "where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit." Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993); see also Bahrle v. Exxon Corp., 279 N.J. Super. 5, 21 (App. Div. 1995) (applying Slowinski). The doctrine is "based upon the sound policy that when an issue is once litigated and decided during the course of a particular case, that decision should be the end of the matter." State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974) (citing United States v. U.S. Smelting Refin. & M. Co., 339 U.S. 186, 198, 70 S.Ct. 537, 94 L.Ed. 750 (1950)).
Although the law-of-the-case doctrine is discretionary and "should be applied flexibly to serve the interests of justice," State v. Reldan, 100 N.J. 187, 205 (1985), "[p]rior decisions on legal issues should be followed unless there is substantially different evidence at a subsequent trial, new controlling authority, or the prior decision was clearly erroneous." Atlantic Employers Ins. Co. v. Chartwell Manor Sch., 280 N.J. Super. 457, 470 (App. Div. 1995); see also Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).
We recognize that the first judge's order of January 18, 2001 was not, strictly speaking, binding as the law of the case because it was not appealed. Even so, that order should have been given more deference by the second judge. As noted, the first order resulted from a plenary hearing at which at least*fn2 three witnesses testified. After that hearing, the first judge made detailed findings about credibility and regarding the mutual intentions of the parties as expressed within their FJD. By contrast, the second judge heard no live testimony and no oral arguments from counsel. In the interim span of more than six years, the parties had been guided by the first judge's disposition and therefore had reason to rely upon it.
We disagree with the second judge that the January 2001 order was generated in the "absence of any risk threatening [the ex-wife] to vacate her home." To the contrary, the premises were in the process of being sold at the time, and it was uncertain if the buyer would allow the ex-wife to remain there. The first judge specifically acknowledged the potential for that risk of eviction when he alluded in his bench ruling to the prospect of another lawsuit with the new owner. Although the risk of eviction in 2001 may not have been as severe as it proved to be in 2007 when the new owner made it very clear that he wanted the ex-wife to leave, there was essentially no significant change in the pertinent factual circumstances at the time the second motion was argued. See Lepis v. Lepis, 83 N.J. 139 (1980).
Lastly, we are not sure that the comparative equities here compel the ex-husband to continue to pay for his ex-wife's rent and utilities more than twenty-five years after their divorce. Essentially, the ex-husband provided the ex-wife in the FJD with a limited asset that could be subject to dissipation at any time by forces that neither party could control. Once that asset, i.e. the leasehold on the marital apartment, evaporated, we discern no fair basis to require the ex-husband to replace it with another rental dwelling.
The ex-wife surely could have had the FJD drafted more carefully to afford her greater protection. As it turned out, she was able to live in the marital apartment, even after the children had grown up and moved out, for a total of more than thirty-seven years, on a rent-free basis. Although we appreciate the second judge's desire not to add to the ex-wife's financial burdens once she was dispossessed, the judge misapplied his discretion by failing to consider adequately the implications of the first judge's ruling.