On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-725-78A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 6, 2010 - Decided Before Judges Lisa and Alvarez.
Defendant, Robert Subrize, appeals from the October 22, 2009 post-judgment order denying his motion to terminate his alimony and life insurance protection obligations and ordering him to pay counsel fees for his former wife, plaintiff, Burma Subrize. Defendant also appeals from the December 16, 2009 order denying his motion for reconsideration and ordering him to pay an additional $500 counsel fee in connection with that motion.
Defendant argues that the trial court erred in finding that he failed to make a prima facie showing of changed circumstances; in not ordering a plenary hearing but deciding the matter based on conflicting certifications; in failing to make sufficient findings of fact or conclusions of law pursuant to Rule 1:7-4; in failing to permit oral argument on the reconsideration motion; and in awarding counsel fees to plaintiff. We reject these arguments and affirm.
The parties were married in 1960. They had three children. Although they separated in 1969, the divorce complaint was not filed until 1978, and the divorce judgment was not entered until June 1, 1981. Both parties were represented in the divorce proceedings. The parties entered into a Property Settlement Agreement (PSA), by which defendant agreed to pay permanent alimony to plaintiff and to permanently provide life insurance for her. The PSA also provided for equitable distribution of property, child support, and other matters, which are not directly implicated in this appeal. The children have long been emancipated.
Defendant's initial recurring support obligation in the PSA was $200 per week, which included alimony and child support, with $12 per week being allocated to each child and the remainder to alimony. The PSA also obligated defendant to pay plaintiff an additional $500 per year as additional alimony. As the children became emancipated and adjustments were made, defendant's alimony obligation, prior to any of the proceedings underlying this appeal, was set at $150 per week, plus the $500 additional annual payment.
A dispute arose between the parties in 2005 regarding equitable distribution of the proceeds from the sale of the former marital home. The parties made competing demands regarding the division of those proceeds. As part of the controversy, defendant moved for modification of his alimony obligation. The matter was set down for a plenary hearing to resolve all issues related to distribution of the proceeds from the home, alimony and defendant's life insurance obligation. Both parties were represented by counsel throughout those proceedings. The parties engaged in discovery. At the time of the scheduled plenary hearing, the parties and their attorneys spent the entire day in negotiations, resulting in an agreement that was memorialized by a consent order entered on November 15, 2007.
The order provided that plaintiff would receive $150,917.08 from the marital home proceeds, and defendant would receive $82,471.06. Defendant's alimony was cut in half, from $150 per week (which equates to $650 per month) to $325 per month, until plaintiff's retirement or until September 30, 2009, whichever occurred later. The order expressly provided that the alimony payments were "fixed and permanent" and likewise ordered defendant to "continue permanently to be responsible for "a $50,000 life insurance policy on plaintiff." The order contained the following anti-Lepis*fn1 provision:
The plaintiff agrees and stipulates that she shall not apply for, nor be entitled to, an increase in the alimony amount. The defendant agrees and stipulates that he shall not apply for, nor be entitled to, a reduction or elimination of his alimony obligation.
On September 2, 2009, as the two-year reduction period was about to expire, defendant filed his motion, seeking to eliminate his alimony and life insurance obligation. Defendant had been retired since 1991 and was living in Florida. He was receiving pension and social security benefits. He owned an investment property and had other retirement and investment assets. At that time defendant was sixty-seven years old, and plaintiff was sixty-eight years old.
In support of his motion, defendant certified that his circumstances had changed because at the time of the consent order two years earlier, his net worth was approximately $234,600, but had fallen to $198,086. He attributed the decrease to the economic decline and the devaluation in the real estate market as well his withdrawal of some funds for living expenses. Defendant also contended he had health issues, including Chronic Obstructive Pulmonary Disease (COPD) and neck and back problems. Defendant contended that his former wife's financial condition had improved over the years because she continued working and was still employed full time in 2009. Plaintiff opposed the motion. She filed a certification disputing much of the information in defendant's certification and clarifying her own financial circumstances. She also sought an allowance for counsel fees. Defendant filed a reply certification.
Judge Iadanza decided the matter on the papers and issued a comprehensive oral decision on October 22, 2009. He concluded that defendant had failed to establish a prima facie case of changed circumstances since the consent order, which was entered into after extensive discovery and negotiations and involved the same issues raised in this motion. The judge noted that the parties had made various concessions in their comprehensive negotiations two years earlier. Of course, a major concession by plaintiff was accepting a temporary fifty percent reduction in her alimony, but with the provision that it would revert to its prior level upon her retirement, when she would need the additional amount. Judge Iadanza found no basis to disturb the anti-Lepis provision. He concluded that there was no "public policy that rises to the level of the Court having to consider voiding the provision in the '07 consent order as to what was going to happen with alimony subsequent to the consent order in the short term or in the long term."
Plaintiff's counsel fee request was in excess of $2500. The judge reviewed the financial circumstances of both parties, and expressed his consideration of all factors contained in Rule 5:3-5 and Williams v. Williams, 59 N.J. 229 (1971). He concluded that plaintiff had "some ability" to pay her own attorney's fees. However, he found that the arguments advanced by defendant were not reasonable in light of "the obvious and clear language of the consent order of ...