On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1492-06-X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Simonelli.
In this appeal, defendant Robert Wonderlin argues that the trial judge erroneously denied his motion for modification of various obligations imposed by the judgment of divorce, based on his claim, among others, that plaintiff Betsy A. Wonderlin was cohabiting with another man and that the parties' incomes had changed to a substantial degree. We agree that Robert presented sufficient evidence to warrant compulsory discovery into the cohabitation issue and remand for that purpose.
The parties were married in 1991 and had two children. In 2006, Betsy filed this divorce action, which, on March 13, 2008, resulted in a settlement later incorporated in a dual judgment of divorce entered on November 10, 2008.
The parties agreed Robert would pay $500 per week in alimony based on their "current reported incomes in the amount of . . . $146,000.00 . . . per year for [Robert] and . . . $68,000.00 . . . per year for [Betsy]." They acknowledged Robert's "recent past year's earnings" were "greater than the income figure relied upon" in establishing the alimony award. Robert further represented in the agreement that his current employment would provide "a total potential maximum annual salary" of $146,000 but that he "believe[d]" his income for that year would be "closer" to $136,000.
On April 28, 2009 -- only eleven months after the settlement agreement and five months after entry of the judgment of divorce -- Robert moved for, among other things, modification of: his alimony and child support obligations based on changes in both his and Betsy's income since the settlement; his alimony obligation based upon Betsy's alleged cohabitation; and the parenting time schedule. The judge denied these motions for reasons set forth in an oral decision, which was later amplified by a written opinion.
Robert appealed, raising the following arguments for our consideration:
I. ISSUES OF MATERIAL FACT RAISED BY THE CONFLICTING CERTIFICATIONS CONCERNING THE WIFE'S COHABITATION WITH HER PARAMOUR, WERE SUFFICIENT TO WARRANT A PLENARY HEARING.
II. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO DETERMINE THAT THE CHANGE IN THE PARTIES' INCOMES WAS INSUFFICIENT TO CONSTITUTE A CHANGE OF CIRCUMSTANCES.
III. THE TRIAL JUDGE'S FAILURE TO ENFORCE THE TERMS OF THE PROPERTY SETTLEMENT AGREEMENT REQUIRING MEDIATION OF PARENTING TIME DISPUTES CONSTITUTES AN ABUSE OF DISCRETION.
IV. THE COURT ABUSED ITS DISCRETION IN REQUIRING THE HUSBAND TO PAY WIFE'S COUNSEL FEES.
We find insufficient merit in the arguments contained in Points II and III to warrant discussion in a written ...