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Robert L. Wheeler v. Ellen A. Wheeler


April 1, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1900-03G.

Per curiam.


Argued September 20, 2010

Before Judges Rodriguez, Grall and LeWinn.

Robert Wheeler appeals pro se from the April 6, 2009, order denying his motion for reconsideration of a January 23, 2009, post-judgment order. In that January order, Judge Deborah J. Venezia denied Robert's application for termination of his obligations to pay alimony and maintain a life insurance policy for the benefit of his former spouse, Ellen A. Wheeler. We affirm for substantially the reasons stated by the judge in the April 6, 2009 order.

The parties were divorced on February 1, 2006, ending nearly twenty-eight years of marriage. They had two children, both of whom are now emancipated.

After working in education administration for two decades, Robert moved to the home-building industry to increase his income. The transition was a success. By the time of the divorce, Robert earned in excess of $150,000 per year. Ellen is a teacher, whose salary in 2007 was $95,000.

During the marriage, Robert handled the parties' finances. In 2003, Ellen found out through a credit report that Robert had reached the credit limit of $29,000 on one credit card and had taken over $80,000 in personal loans secured by the marital home. Robert had also raided approximately $96,200 worth of marital assets by taking loans in Ellen's name, borrowing on the cash value of family insurance policies and cashing in retirement funds. Although Robert admitted these actions, he claimed it was necessary to maintain his family's lifestyle.

Shortly after filing for divorce in March 2003, Robert relocated to Raleigh, North Carolina. Subsequently, he remarried in North Carolina and accepted a position with a $110,000 salary. He claims that he gives his second wife $1,000 per month for household expenses.

The dual judgment of divorce incorporates a consent order to submit all economic issues to binding arbitration and to enter into a Qualified Domestic Relations Order (QDRO). The parties also agreed that the arbitrator would decide how to compensate Ellen for Robert's wrongful depletion of marital assets.

The arbitrator decided that Robert should pay permanent alimony of $250 per week. This amount would allow Ellen to continue her marital lifestyle and cure Robert's wrongful depletion of marital assets. To secure this obligation, Robert was required to maintain at least $250,000 in life insurance, naming Ellen as sole beneficiary. The judgment of divorce was modified to incorporate these terms.

Since the divorce, Robert has often been in arrears on his alimony obligations. In December 2007, Judge Glenn Berman ordered a Middlesex County Probation Department audit of Robert's account. The audit incorrectly showed that Robert owed $14,500 in arrears. Relying on the audit, Ellen immediately moved to enforce. However, a second audit revealed the error before Ellen's motion was decided.

On January 23, 2009, Judge Venezia granted another motion to enforce Robert's alimony obligation. The judge directed Robert to pay arrears of $3250 and alimony of $250 per week. She also ordered Robert to provide proof of the requisite life insurance policy. Finding that Robert acted in bad faith in failing to comply with the court's prior orders, Judge Venezia ordered Robert to pay Ellen's attorney's fees and costs.*fn1

In March 2009, Robert moved for reconsideration. He submitted documents to substantiate his position that he earned less than $250 a week. The judge denied the motion without prejudice on March 19, 2009, finding that Robert submitted financial information in his motion for reconsideration that was not previously submitted, i.e., a pre-divorce case information statement (CIS) dated October 29, 2003; a present CIS dated February 8, 2009, indicating 2008 income of $55,395.95; and a W-2, although his 2007 and 2008 tax returns were not included. Therefore, the judge directed Robert to pay $5250 in alimony arrears.

Robert filed a second motion for reconsideration. In support, he submitted a 2009 CIS, noting for the first time that he had $1000 in expenses that were not included in the 2008 CIS. The judge issued the April 6, 2009 order: (1) denying Robert's motion to terminate or modify his alimony obligation; (2) denying his motion to terminate or reduce his life insurance obligation; (3) denying counsel fees; (4) granting Ellen's cross-motion for wage garnishment to secure alimony payment; (5) ordering Robert to pay $5250 in alimony arrears as of March 19, 2009; and (6) compelling Robert to authorize his former lawyer to release $750 held in escrow to pay a prior award of counsel fees to Ellen.

Robert moved for a stay of the order and for a waiver of transcript fees. We denied the motion. Wheeler v. Wheeler, M-6777-08 (App. Div. August 18, 2009).

On appeal, Robert contends that alimony should be reduced retroactive to May 9, 2008, the date when he was laid off from his employment in the housing industry. He also argues that his decrease in income is a changed circumstance justifying a downward modification of his alimony obligation. We disagree.

A support award may only be modified upon the showing of changed circumstances that "have substantially impaired the [supporting spouse's] ability to support himself or herself." Lepis v. Lepis, 83 N.J. 139, 157 (1980). Factors to be considered on a motion for modification include "the dependant spouse's needs, that the spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 152. Temporary circumstances will not justify a downward modification. Innes v. Innes, 117 N.J. 496, 504 (1990); see also Donnelly v. Donnelly, 405 N.J. Super. 117, 127-29 (App. Div. 2009).

Here, Judge Venezia denied modification because Robert's claims of changed circumstances were "unsubstantiated and insufficient." Robert failed to provide a 2003 CIS and documentation evidencing his 2008 income. See R. 5:5-4(a) (requiring previous and current CIS to be appended to a motion for modification of alimony); see also Zazzo v. Zazzo, 245 N.J. Super. 124, 128-29 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). Any information not included in the CIS may be excluded from evidence. See R. 5:5-2(c). Thus, as the judge determined, Robert's application was procedurally deficient.

The judge also denied Robert's subsequent motion for reconsideration. After reviewing the additional financial information that Robert divulged, the judge found that Robert's expenses had decreased by fifty-two percent since 2003 and he provided no evidentiary support that his 2008 income was $55,395.95. Finally, the judge emphasized that the arbitrator took into account Robert's depletion of the marital assets in awarding alimony. We review to determine whether the judge's decision constituted an abuse of discretion. Innes, supra, 117 N.J. at 504.

We also note that a motion for reconsideration is not a second bite at the proverbial apple. A movant seeking reconsideration must point to controlling authorities that "the court has overlooked or as to which it has erred." R. 4:49-2. This is a significantly limited motion, granted only where the judge reached a decision on a "palpably incorrect or irrational basis" or failed to take into consideration "the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

Here, Robert made no showing that the judge misapplied the law or ignored the evidence before her. Instead, Robert simply reasserted the same arguments that the judge had previously rejected.

We conclude that Judge Venezia did not abuse her discretion in denying Robert's motions for modification. Robert simply did not provide a sufficient factual basis to establish changed circumstances. A downward modification is particularly improper because the alimony obligation was intended as recompense for Robert's wrongful depletion of marital assets.

Robert also contends that his obligation to maintain a life insurance policy should be terminated or reduced because changed circumstances exists. He also argues that the policy amount should only reflect half of the amount of loans owed for the parties' children's school loans. We disagree for the same reason: Robert has not demonstrated changed circumstances. Furthermore, Robert's life insurance is intended to secure his alimony obligation, not his children's college loans.

Robert argues that Ellen maliciously filed false claims to enforce arrears of $14,500 based on the flawed Middlesex County Probation Department audit. He argues that the judge erred in denying his motion for counsel fees because Ellen's bad faith forced him to incur attorney's fees. We disagree.

When reviewing an application for attorney's fees, the judge is guided by "the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. Rule 4:42-9(a)(1) specifically authorizes the award of attorney's fees in a family action. The judge should consider the following factors in deciding whether to award counsel fees:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of the award.

[R. 5:3-5(c)].

The failure to consider each factor is not fatal to an attorney's fee award. See Mani v. Mani, 183 N.J. 70, 94-95 (2005). A judge's denial of a motion for counsel fees should not be disturbed on appeal absent a showing of abuse. See R. 5:3-5(c); Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).

Here, we conclude that the record contains sufficient, credible evidence to support the judge's finding that Ellen did not act in bad faith. The judge relied on a facially valid but ultimately incorrect Probation Department audit.


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