June 17, 2013
MICHAEL R. JONES, Plaintiff-Respondent,
MARY BETH JONES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 1, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-404-03.
Richard F. Klineburger, III, argued the cause for appellant (Klineburger and Nussey, attorneys; D. Ryan Nussey, on the brief).
Peter R. Thorndike argued the cause for respondent (Ryan and Thorndike, attorneys; Mr. Thorndike, of counsel and on the brief).
Before Judges Axelrad and Sapp-Peterson.
In this post-judgment matrimonial matter, defendant Mary Beth Jones appeals from the orders denying her motion to extend the term of her limited duration alimony and convert it to permanent alimony, and denying reconsideration. Defendant primarily argues the court's decision was not supported by substantial credible evidence, and she is entitled to extended alimony, as a matter of equity, because she was married for eighteen years. We affirm.
After eighteen years of marriage, the parties, both in their early forties and represented by counsel, negotiated a property settlement agreement (PSA), which was incorporated in a May 2003 final judgment of divorce (FJD). Defendant was named the parent of primary residence for their fourteen and one-half-year-old daughter and eleven-year-old son, both of whom had special needs, and plaintiff agreed to pay $200 per week in child support. The PSA also required plaintiff to fund a special needs trust for the children with a $250, 000 life insurance policy. At that time plaintiff was a truck driver earning $80, 000 annually and defendant worked part time as a home health aide earning $18, 000 annually. The PSA also obligated plaintiff to pay defendant nine years of alimony at $325 per week with the caveat that defendant "may make [a] Lepisor Cr[ews] application after the expiration of the said nine (9) year term to continue support."
On May 29, 2012, defendant filed a post-judgment motion seeking a court order to: extend the term of her limited duration alimony and convert it to permanent alimony; increase the amount of alimony; require plaintiff to maintain life insurance to secure his alimony obligation; require plaintiff to produce complete financial documents and a complete case information statement (CIS); adjust plaintiff's child support obligations; require plaintiff to produce life insurance proofs to secure his child support; designate the special needs trust as the irrevocable beneficiary of plaintiff's life insurance policy in place to secure his child support obligations; require plaintiff to reimburse her for 100% of the children's unreimbursed medical bills; other relief related to the special needs trust; and counsel fees.
Defendant certified that her request to extend the term of plaintiff's alimony and convert it into permanent alimony was appropriate due to her lengthy marriage, her extensive additional responsibilities for her two special needs children, her limited income and age, her lack of any other source of income, and the fact she struggled to meet one-half of the standard of living she enjoyed during their marriage. Defendant certified that their daughter, who has Asperger's Syndrome but is higher functioning than their son, worked about twenty-five hours per week earning $8.09 per hour, which was her maximum earning capacity. She further stated that their son earned about $40 per week through a program teaching job skills to individuals with special needs, but he would become ineligible for the program once he turned twenty-one years old. He did, however, receive $364.32 in monthly Social Security benefits that she used for his expenses.
Plaintiff filed opposition. He produced the financial information sought in defendant's motion and did not object to a child support adjustment or naming the special needs trust as the beneficiary of his life insurance policy. Plaintiff also submitted proof of payment of the noted health-related expenses and explained that the only problem was defendant's failure to timely provide him with the medical invoices.
Defendant responded, certifying there was a change of circumstances because her income was significantly lower than at the time of the divorce and plaintiff's income was higher than it was in 2008 when he was able to reduce his child support payments. She also stated she currently worked thirty hours per week and earns $340/week.
Following oral argument on June 29, 2012, Judge Edward McBride rendered an oral decision, denying defendant's motion to extend the term and increase the amount of limited duration alimony, increasing child support from $121 to $249 per week, requiring plaintiff to produce proof of life insurance securing child support, directing plaintiff to designate the special needs trust as the irrevocable beneficiary, denying enforcement of the provision regarding unreimbursed medical bills because there was no evidence of non-payment, requiring plaintiff to pay half the cost of the special needs trust preparation, and denying defendant's application for counsel fees. The ruling was memorialized in an order of the same date.
Judge McBride explained that N.J.S.A. 2A:34-23(c) proscribes extending the term of limited duration alimony except in unusual circumstances, and he did not find there to be a showing of such circumstances in the present case. The judge also determined that defendant failed to show "a change in circumstances sufficient on the issue of the ability to support herself under  Lepis to justify a change in the alimony obligations[.]" The judge noted that:
the most significant change in many respects is the maturation of the children. . . . So if anything gets changed with respect to the care and attention of the children from 2003, when they were 15 and 11 years old, is that the 15-year old is now 23, works outside the home, earns $200 a week.
He found the son's needs had not changed.
The judge related that at the time of the FJD, defendant's total available resources amounted to a little over $45, 000, based on her wages and the alimony and child support she received. Nine years later, by adding defendant's income, their daughter's earnings and son's social security income, and the pending increase in child support he was going to order, defendant's total resources exceeded what they were in 2003. Judge McBride also found that defendant "has had the ability from an earnings capacity standpoint to increase [her] earning capacity from what it was nine years ago." Consequently, the judge concluded defendant failed to meet her burden of proving either unusual or changed circumstances.
Defendant filed a motion for reconsideration of the alimony extension denial. She also requested a plenary hearing for further discovery to address the meaning of the sentence in the PSA that permitted her to make an application for an extension of alimony after the end of the nine-year term. Defendant certified that it was never her intention to seek an increase in alimony and what she initially wanted was to have her limited duration alimony converted into permanent alimony. She asserted she was simply following the advice of her counsel, but after reviewing the motion she originally filed, it did not appear her circumstances were advocated appropriately. Defendant certified that it "appeared as if the court thought I had the ability to work greater hours and earn greater income. It also appeared as if the conditions of our children was minimized[.]" She explained that her son is severely autistic, requires almost full time care, detailed the care she provides him, and attached a certification of his respite nurse.
Defendant also provided the certification of Andrew Viola, her former attorney who represented her in the divorce. He certified that a contentious issue in the parties' divorce was the issue of permanent alimony; however, with trial fast approaching a compromise was reached as evidenced by the PSA. Viola certified that it "was the clear understanding of the parties that if defendant never obtained the employment or training to allow her to support herself in the manner enjoyed during the marriage that support would continue." He added that the clause permitting defendant to file an application after nine years "was specifically inserted to protect [her] in the event her financial circumstances never improved during the term."
Plaintiff filed opposition, urging that defendant's motion was simply a rehash of her prior arguments. He also disputed her statement that she would love to have a normal work schedule because there was nothing in the record "to even slightly suggest defendant has done anything or made any effort to achieve a job earning more than she currently earns or acquire the training to do so." He attached a certification from John Clarke, his attorney from the divorce, who disagreed with Viola's recollection. Clarke asserted there "was no unarticulated understanding that [alimony] would continue if defendant did not get a job or did not train herself to get one. Further, there was no agreement that if the defendant could not maintain a lifestyle reasonably comparable to the standard of living enjoyed during the marriage that alimony would continue." Clarke further asserted that Section 3.1 of the PSA was superfluous because it gave defendant no rights which she did not already have and did not exempt her from the applicable requirements of N.J.S.A. 2A:34-23(c).
Following oral argument on August 31, 2012, Judge McBride denied defendant's motion. He concluded defendant was making new arguments in violation of Rule 4:49-2 and held that defendant failed to establish a prima facie case because her circumstances had not changed. The judge expressed his understanding that defendant's argument was that the language in the PSA substituted the basic Lepis and Crews standards for the statutory unusual circumstances requirement. The judge made clear that even if he assumed the statutory requirement of unusual circumstances did not apply, the Lepis and Crews standards had not been met, and there were no new facts to suggest otherwise. He memorialized the ruling in an order of that date. This appeal ensued.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING MS. JONES' MOTION TO EXTEND ALIMONY AS ITS DECISION WAS AN ABUSE OF DISCRETION AND WAS NOT SUPPORTED BY THE SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.
THE TRIAL COURT ERRED IN DENYING MS. JONES' REQUEST FOR ADDITIONAL DISCOVERY AND A PLENARY HEARING WITH RESPECT TO HER MOTION FOR AN EXTENSION OF ALIMONY.
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT EXTENDING ALIMONY IN THIS CASE BECAUSE, AS A MATTER OF EQUITY, MS. JONES IS ENTITLED TO PERMANENT ALIMONY AS OPPOSED TO LIMITED DURATION ALIMONY.
Defendant argues the court did not make any factual findings regarding whether unusual circumstances existed warranting the extension of alimony. Instead, she contends it "focused solely on the income coming into the household and not [defendant's] argument that unusual circumstances exist given the fact that she is now 53 years of age and must care for not one, but two, special-needs unemancipated adults." She further contends the court failed to state on the record its findings of fact and conclusions of law and abused its discretion by denying her motion for reconsideration because a litigant may bring additional information to the court's attention, and the court should consider such information in the interests of justice and in its discretion. Defendant also claims the court failed to consider evidence regarding the parties' intent as to Section 3.1 of their PSA and the children's condition. We disagree.
In divorce matters, "'the use of consensual agreements to resolve marital controversies' is particularly favored[.]" Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). Such agreements are accorded "prominence and weight" and "should not be unnecessarily or lightly disturbed." Konzelman, supra, 158 N.J. at 193-94. Modification of a voluntary and predetermined arrangement for termination of alimony is not ordinarily equitable and fair. Gordon v. Rozenwald, 380 N.J.Super. 55, 68 (App. Div. 2005).
"Limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate." Cox v. Cox, 335 N.J.Super. 465, 476 (App. Div. 2000). The duration of the marriage is the "defining distinction between whether permanent or limited duration alimony is warranted." Id. at 483. However, there is a presumption that the temporal aspect of an agreement for limited duration alimony be preserved. Gordon, supra, 380 N.J.Super. at 70. This is because "the parties to a dispute are in the best position to determine . . . [the] least disadvantageous resolution and fashion an arrangement that meets their particular needs." Ibid. (internal quotation marks and citation omitted). Accordingly, a party seeking a modification of an alimony agreement has the burden of demonstrating that he or she is entitled to some reformation of the agreement. See Lepis, supra, 83 N.J. at 157.
Pursuant to N.J.S.A. 2A:34-23(c):
An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.
Therefore, "before modifying the length of the term of a limited duration alimony award, a heightened statutory stand of 'unusual circumstances' must be met." Gonzalez-Posse v. Ricciardulli, 410 N.J.Super. 340, 356 (App. Div. 2009).
Contrary to defendant's assertion, Judge McBride made extensive factual and legal findings on both motions. We affirm substantially for the reasons expressed in his comprehensive oral decisions. On the initial motion, the judge found defendant failed to establish unusual circumstances under the statute or a substantial change in circumstances on the issue of the ability to support herself to justify extending her alimony under the Lepis standard. The judge concluded the most significant change since the PSA was signed was the maturation of the children, who the parties recognized had special needs at that time. For example, Section 2.2 states that "given the fact that both children suffer from autism" emancipation is contingent upon the children's ability to support themselves, and Section 2.5 provided for a special needs trust to support the children. The judge noted that the parties' son's needs had not changed but their daughter's situation had, in fact improved, as she was currently working and earning $200 per week. The judge also made a finding that defendant's available resources increased due to the increase in child support and defendant receiving her son's social security income. These findings are amply supported by the record. See Crespo v. Crespo, 395 N.J.Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co, 65 N.J. 474, 484 (l974)) and stating that a trial court's findings of fact and conclusions of law will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent relevant and reasonably credible evidence'").
Defendant argued for the first time in her reconsideration motion that she was unable to obtain more "lucrative work" and there was a material factual dispute warranting a plenary hearing regarding the legal significance of Section 3.1 of the PSA. Defendant cites D'Atria v. D'Atria, 242 N.J.Super. 392, 401-02 (Ch. Div. 1990) for the proposition that during a motion for reconsideration a litigant may bring additional information to the court's attention. However, there the judge held that "if a litigant wishes to bring new or additional information to the court's attention which it could not have provided on the first application, the court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence." Ibid. (emphasis added). Defendant clearly could have raised these issues during the initial motion.
Moreover, a "prima facie showing of changed circumstances must be made before a court will order discovery[.]" Lepis, supra, 83 N.J. at 157. "As is particularly the case in matters that arise in the Family Part, a plenary hearing is only required if there is a genuine, material and legitimate factual dispute." Segal v. Lynch, 211 N.J. 230, 264-65 (2012). The PSA contained no language that the nine-year term was conditioned on defendant's ability to obtain employment or training. Moreover, it contained an integration clause that "there have been no representations, warranties, covenants or undertakings other than what is contained in this order."
Thus, it was inappropriate for defendant's former attorney to certify regarding the purported negotiations surrounding the settlement of this issue. Furthermore, there was nothing in the plain language of the agreement that warranted a plenary hearing as to its meaning. See Barr v. Barr, 418 N.J.Super. 18, 32 (App. Div. 2011) (stating that if the terms of the PSA "are clear and unambiguous, there is no room for construction and the court must enforce those terms as written" and give them their ordinary meaning)(quoting Watson v. City of E. Orange, 175 N.J. 442, 447 (2003)).
Lastly defendant claims, as a matter of equity, the court should have awarded her permanent alimony because limited duration alimony is not "fair and equitable" because the parties had an eighteen-year marriage and such a marriage is considered long-term. This argument is unavailing.
The Supreme Court has "recognized and emphasized repeatedly that matrimonial agreements between spouses relating to alimony and support, which are fair and just, fall within the category of contracts enforceable in equity." Petersen v. Petersen, 85 N.J. 638, 642 (1981). The Court explained that these agreements are voluntary and consensual and are entitled to considerable weight with respect to their validity and enforceability, especially when incorporated into a judgment of divorce. Ibid. Nevertheless, courts have the equitable power to revise an alimony agreement if circumstances require such action. Crews, supra, 164 N.J. at 24.
Such circumstances are not present here. Based on the length of the parties' marriage, defendant was potentially entitled to permanent alimony. However, for any number of reasons, represented by counsel, defendant chose to negotiate a PSA that included a nine-year limited duration alimony provision, guaranteeing her payment of $152, 100, and allowing her the opportunity to make a Lepis or Crews application after that date Defendant has not demonstrated that the agreement was unconscionable or so inequitable that judicial interference is warranted Defendant was then working part-time and continues in the same employment status She was aware of her children's special needs when she negotiated the PSA and she cannot now argue that her son's unanticipated needs prevent her from rejoining the workforce.