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Rosengarten v. Rosengarten

October 27, 2009

JACOB ROSENGARTEN, PLAINTIFF-RESPONDENT,
v.
SHERI ROSENGARTEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-293-96B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2009

Before Judges Lisa and Alvarez.

Defendant Sheri Rosengarten appeals the August 22, 2008, order denying her an increase in alimony and an award of counsel fees payable by plaintiff Jacob Rosengarten. After consideration of the arguments made and applicable legal standards, we affirm.

Some brief history is necessary before a discussion of defendant's points on appeal. The parties divorced on July 15, 1997, after nearly eighteen years of marriage. Pursuant to the Matrimonial Settlement Agreement (MSA) that was incorporated into the final judgment of divorce, plaintiff was to pay defendant $66,000 in alimony annually and one-third of his future yearly bonuses. On May 16, 2000, plaintiff obtained a court order relieving him of the obligation to pay defendant a portion of his yearly bonuses as a result of the unforeseen liquidation of a jointly-owned business asset that resulted in defendant's receipt of $500,000 after tax.

Defendant suffers from significant disabilities and is unable to work as a result. Because of defendant's disabilities, her brother, David Cohen, was acting as her conservator at the time of the divorce. On October 23, 2001, Cohen instituted guardianship proceedings claiming that defendant was totally incapacitated. Thereafter plaintiff brought an action against Cohen in New Jersey alleging that he had mismanaged or misappropriated her funds. A settlement was reached, resulting in Cohen's resignation as both guardian and trustee. Susan B. Smith, Esquire, was appointed guardian of both defendant and her estate; defendant's father became "sole trustee of the living trust."

On February 9, 2007, a Pennsylvania court determined that defendant was no longer incapacitated and terminated the appointment of counsel to act as her trustee. Defendant's monthly expenses, as set forth in a petition she filed in Pennsylvania on February 24, 2007, were $7350.54. Defendant's assets were calculated to be "approximately $900,000 and include[] a residence in Newtown, Pennsylvania, with a value of approximately $280,000."*fn1

Defendant filed an application for an increase in alimony, counsel fees, discovery, mandatory economic mediation and a plenary hearing on June 23, 2008. In support of her contention that circumstances had changed, she offered evidence documenting the disparity in the parties' lifestyles, a rise in the cost of living since the divorce and the alleged depletion of her assets. Judge Jacobson denied defendant's application on August 22, 2008.*fn2 This appeal followed.

Defendant claims that the motion judge erred in concluding that she had not made the requisite prima facie showing of substantially changed circumstances. Defendant asserts that more than eight years have elapsed since the order eliminating plaintiff's obligation to share bonuses, and she further directs our attention to the "dramatic increase in the cost of living" since the date of the MSA.

Defendant also contends that she agreed to the low alimony figure when negotiating the MSA because she anticipated receiving a substantial portion of plaintiff's bonuses. Once this entitlement was taken away, defendant avers that she was forced to deplete her assets to maintain the parties' marital lifestyle. Defendant claims that the Case Information Statement (CIS) she filed at the time of the divorce did not accurately reflect the marital standard of living, "an essential component in the changed-circumstance analysis when reviewing an application for modification of alimony." Crews v. Crews, 164 N.J. 11, 25 (2000). Therefore, she argues, after her right to plaintiff's bonuses was terminated, the court improperly applied a "needs-based" standard in recalculating alimony rather than considering the couple's actual standard of living during marriage.

Defendant acknowledges that a party seeking modification of a support order "has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (citation omitted). "A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." Ibid.

An increase in support is necessary when "changed circumstances substantially impair the dependent spouse's ability to maintain the standard of living reflected in the original decree or agreement." Id. at 152-53. Therefore, "the marital standard of living is an essential component in the changed-circumstances analysis when reviewing an application for modification of alimony." Crews, supra, 164 N.J. at 25. Our standard of review is highly deferential given the "special jurisdiction and expertise" of the family court. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In her oral decision, Judge Jacobson relied upon the CIS submitted by defendant during the divorce proceedings. Noting that defendant was assisted by counsel, a guardian ad litem, and a conservator, Judge Jacobson reasonably relied ...


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