August 1, 2013
ROBERT L. WHEELER, Robert-Appellant,
ELLEN A. WHEELER, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1900-03.
Dennigan Cahill, P.C., attorneys for appellant (Elizabeth A. Smith, of counsel and on the briefs).
Howard R. Rabin, attorney for respondent.
Before Judges Parrillo and Maven.
In this post-judgment matrimonial matter, plaintiff Robert Wheeler (Robert) appeals from the November 4, 2011 Family Part order denying his motion to reduce alimony. We conclude that Robert failed to provide the trial court with sufficient evidence of a significant changed circumstance, pursuant to Lepis v. Lepis, 83 N.J. 139, 152 (1980). Accordingly, we affirm.
In April 2011, we rendered opinions on two appeals filed by Robert in matters substantially similar to this instant appeal. In one opinion, we upheld the trial court's denial of Robert's request to terminate his alimony and life insurance obligations, and, in the other opinion, we upheld the trial court's denial of his subsequent motions for reconsideration of the denied motion.In each opinion, we concluded that the motion judge did not abuse her discretion in denying Robert's motions for modification based on (1) Robert's failure to provide a sufficient factual basis to establish changed circumstances; and (2) the alimony obligation's intended purpose as recompense for Robert's wrongful depletion of marital assets.
The background facts and procedural history have been set forth at length in our prior opinions. Because the same parties are involved here, we recount only those facts that are necessary and relevant to this appeal. The parties were married on August 14, 1976, and divorced in March 2004. Pursuant to the Final Judgment of Divorce and separate Consent Agreement, both filed on March 4, 2004, the parties engaged in binding arbitration to resolve alimony and equitable distribution matters. On August 22, 2005, the arbitrator awarded, among other things, permanent alimony to Ellen Wheeler (Ellen) in the amount of $250 per week, as recompense for Robert's depletion of $89, 534 from the marital estate as well as for her future maintenance. Robert was also required to maintain a life insurance policy in the amount of $250, 000 naming Ellen as the beneficiary.
The parties each have filed numerous post-judgment motions, with Ellen seeking to enforce alimony and collect on arrears, and Robert seeking to reduce or terminate his alimony and life insurance obligations. Robert's applications have been denied with the court finding that he had not established a prima facie showing of changed circumstance. As stated, we affirmed the two most recent 2009 trial court orders in April 2011.
Robert filed the instant motion for modification of alimony and reduction of life insurance on October 4, 2011, again providing a recitation of his financial circumstances and asserting a further downward reduction in his income. Ellen filed a cross-motion to enforce litigant's rights. In support of his application, Robert submitted a certification and documentation of his jobs and salary, a list of his employment search efforts for the years since the divorce and, particularly, since his last 2009 modification application, as well as tax returns.
On November 4, 2011, following oral argument, the judge rendered an oral opinion denying Robert's motion. The judge found that Robert had not met the burden of demonstrating a prima facie case of changed circumstances. First, the court determined that Robert's proffered employment history demonstrated "his ability to continuously find employment . . . that ultimately result[ed] more times than not in his decision to leave and find supplemental employment, with each move by and large a diminution in the income that he obtained." Further, notwithstanding the list of more than thirty job searches conducted over a period of six years, the court rejected Robert's general "unsupported" statements regarding his earning capacity and found that he failed to provide a basis for the court to conclude that his reduced employability was permanent. The court also found that Robert's submitted tax returns were unreliable, as they were unsigned, undated, self-reported and failed to have the appropriate W-2 form attached to them.
On appeal, Robert maintains that the trial court erred by concluding that he voluntarily and willfully changed employment, which resulted in his diminished income. He argues that the judge "fail[ed] to consider the marketplace, Robert's age, the failing economy or Robert's true employment prospects under the totality of the circumstances." We find no merit in these arguments and affirm.
The scope of our review of a trial court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citation omitted). We accord particular deference to the judge's fact-finding because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413; see Crespo v. Crespo, 395 N.J.Super. 190, 194 (App. Div. 2007). Reversal is warranted only when a mistake must have been made because the trial court's factual findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted) (internal quotation marks omitted).
In our review, we are obliged to accord deference to the trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412. Such deference is appropriate because the trial judge has "a feel of the case" and is in the best position to "make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). Consequently, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
In this appeal, Robert seeks to terminate or reduce his alimony obligation. "An award of alimony remains subject to review and, if warranted, modification, when either party experiences a substantial change in financial circumstances." Reese v. Weis, 430
N.J.Super. 552, 569-70 (App. Div. 2013) (citing Lepis, supra, 83 N.J. at 146); see also N.J.S.A. 2A:34-23 (stating that alimony orders "may be revised and altered by the court from time to time as circumstances may require").
Regarding alimony, while the "'changed circumstances' are not limited in scope to events that were unforeseeable at the time of divorce, " they must be "continuing, " as well as unanticipated and unaddressed by any agreement or judgment. Lepis, supra, 83 N.J. at 152-53. The party seeking modification has the burden of showing such "changed circumstances" sufficient to justify relief from the support or maintenance provisions involved. Id. at 157.
One of the events that may constitute "changed circumstances" is the loss of employment or income. Innes v. Innes, 117 N.J. 496, 504 (1990); Lepis, supra, 83 N.J. at 151. The loss of income, however, must be permanent. See Larbig v. Larbig, 384 N.J.Super. 17, 22-23 (App. Div. 2006). Temporary unemployment will not justify reducing an alimony obligation where the supporting spouse has a salary history and the ability to find "employment which will yield an income sufficient to fulfill their obligations." Gertcher v. Gertcher, 262 N.J.Super. 176, 177 (Ch. Div. 1992).
The motion judge was required to consider not just whether there was a substantial change since the 2004 divorce judgment, but whether there was a substantial change since the entry of the last order in 2009. See Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App. Div. 2009). In Donnelly, the trial court had considered and denied the defendant's motions to reduce his support obligations initially in 2005, then again after a plenary hearing on a 2006 motion, and lastly after oral argument in 2007. Id. at 123-24. In affirming the court's decision, we held that:
[T]he judge was not required to wipe the slate clean and consider a similar contention regarding [defendant's] earnings less than one year after the prior order as if the earlier hearing had never occurred. To the contrary, the judge was required to consider not whether there was a substantial change since the . . . [Property Settlement Agreement] but whether there was a substantial change since he rendered his fact findings in December 2006. . . . [T]he focus must also be on the length of time that had elapsed since the last milepost in these post-judgment proceedings.
[Id. at 127-28.]
We have likewise held that "[e]ach and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig, supra, 384 N.J.Super. at 21 (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).
Applying these well-grounded principles to the case at hand, we recognize that the trial judge in this case had presided over previous motion hearings, and was familiar with the facts and procedural history of the case. For this application, she reviewed the voluminous documentation provided, including prior years' tax returns and a list of Robert's efforts to find employment. The majority of the submissions substantially pre-dated his prior motions or were available to him prior to that date with due diligence and there was scant evidence of any significant changes to his income since the last application in 2009. The information submitted indicated that he was employed at Riley Life Logistics from March 2009 through March 2011. In that position he had an annual salary of $37, 000, but he voluntarily resigned. Thereafter, from June 2011 to September 2011, Robert worked a four-month temporary position with Camrett Logistics earning approximately $5, 000 per month. He then became employed at Skyline Exhibits in October 2011 earning $40, 000 per year plus commission.
The judge made specific findings on the relevance, weight and reliability of Robert's proofs, particularly those pertaining to income since the prior motions. The judge recognized that temporary unemployment does not justify a reduction in alimony where the supporting spouse has a salary history and the ability "to find employment which will yield an income sufficient to fulfill their obligations." Gertcher, supra, 262 N.J.Super. at 177. The judge found that Robert's underemployment did not present a prima facie showing of changed circumstance sufficient to justify a modification of the alimony.
In Larbig, supra, 384 N.J.Super. at 28, we held:
There is, of course, no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation. Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented, which we do not disturb absent an abuse of discretion. . . .
We are satisfied upon our careful review of the record that the trial judge properly exercised her discretion in concluding that Robert failed to demonstrate any change in his circumstances sufficient to warrant an evidentiary hearing for the modification of his alimony obligation.