Opinion
DOCKET NO. A-1878-14T2
07-21-2016
JENNIFER KLEMASH, Plaintiff-Respondent, v. CHRISTIAN D. KLEMASH, Defendant-Appellant.
Christian D. Klemash, appellant pro se. Jennifer Klemash, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-590-12. Christian D. Klemash, appellant pro se. Jennifer Klemash, respondent pro se. PER CURIAM
In this post-judgment matrimonial case, defendant appeals from an October 23, 2014 Family Part order denying his motion to reduce or terminate his alimony and child support obligations, and a December 5, 2014 order denying reconsideration. We reverse and remand for further proceedings.
I.
We discern the following facts and procedural history from the record. The parties were married in 2001 and had two children. Following an eight-day trial, the court entered a dual final judgment of divorce (JOD) on December 19, 2012. Defendant was ordered to pay $81 per week for child support and $150 per week for alimony during a four-year period of limited duration alimony. The court ordered that defendant's child support obligation was effective July 11, 2012, and his alimony obligation was effective February 1, 2013.
At the time of trial defendant worked as a loan officer and earned approximately $24,000 annually in that position. On September 30, 2014, defendant filed a motion to modify his alimony and child support obligations based on changed circumstances. Defendant asserted that the changed circumstances included: an inability to earn the income imputed to him by the trial court due to the June 2013, termination of his employment as a loan officer, an inability to become reemployed as a loan officer due to the economic downturn which adversely affected the mortgage loan business and the loss of his professional license based upon his poor credit rating, the loss of his real estate investments with plaintiff, and the failure to earn anticipated income from a book he had written. Defendant supported his motion with documentation concerning his unsuccessful efforts to secure a position as a loan officer after he was laid off in June 2013.
Defendant argued that the change in circumstances rendered him unable to earn the income which had been imputed to him by the court and upon which his alimony and child support obligations in the JOD were based. Defendant also asserted that there was a change in plaintiff's circumstances that warranted a modification of his obligations. Defendant alleged that plaintiff had the ability to earn additional income working full-time and was cohabiting with her boyfriend.
On October 23, 2014, a judge who had not presided over the divorce trial and did not enter the JOD heard argument on defendant's motion and, in an oral decision, denied defendant's request. The judge stated that she was concerned about the length of time since the JOD was entered and was "not inclined to" undo and change "the terms of the order after a full trial where [the court] looked at what [defendant was] capable of earning." The judge found that defendant was "capable of working" and "of doing more than had been provided" to the court. Based upon those findings, the court denied defendant's motion and entered an October 23, 2014 order stating that "[d]efendant ha[d] not proven a change in circumstance and ha[d] the ability to earn income as determined by [the trial judge]."
Defendant filed a motion for reconsideration of the October 23, 2014 order, arguing the court erred in denying his request for discovery and a plenary hearing on his motion for a modification of his alimony and child support obligations. During a December 5, 2014 motion hearing, the judge asked plaintiff questions related to defendant's claim that plaintiff was cohabiting with her boyfriend.
After hearing argument on the motion and plaintiff's responses to the court's questions, the judge denied the motion, finding that defendant did not present any evidence or argument which required reconsideration of the October 23, 2014 order under Rule 4:49-2 and that defendant had not presented sufficient information that plaintiff was cohabiting with her boyfriend. The court entered a December 5, 2014 order denying defendant's motion for reconsideration. This appeal followed.
II.
"In our review of a Family Part judge's motion order, we defer to factual findings 'supported by adequate, substantial, credible evidence' in the record." Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)). "Reversal is warranted when we conclude a mistake must have been made because the trial court's factual findings are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. . . .'" Ibid. (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
We accord special deference to the expertise of the Family Part in its application of legal principles to family disputes. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "However, when reviewing legal conclusions, our obligation is different; '[t]o the extent that the trial court's decision constitutes a legal determination, we review it de novo.'" Landers, supra, 444 N.J. Super. at 319 (alteration in original) (quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
On appeal, defendant argues that the court erred in its October 23, 2014 and December 5, 2014 orders because defendant made a prima facie showing of changed circumstances based on his decreased earning capacity, inability to earn the income imputed to him due to the termination of his employment and his inability to obtain a position as a loan officer, the loss of his real estate investments, the failure to earn anticipated income from a book he authored; plaintiff's new employment; and plaintiff's cohabitation with her boyfriend. Defendant also argues the court failed to consider his application under N.J.S.A. 2A:34-23(k) and erred by failing to make the requisite findings of fact and conclusions of law required under Rule 1:7-4.
Alimony and child support orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. "A party seeking modification of his or her child support obligation has the burden of demonstrating a change of circumstances warranting an adjustment." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (citing Lepis v. Lepis, 83 N.J. 139, 157 (1980)). "Any decision must be made in accordance with the best interest of the children." Ibid. "The demonstration of a significant change in financial circumstance is the first step when determining whether modification of a previously set child support award is warranted." Id. at 118-19. Only when the moving party demonstrates a change in circumstances is the court required to "determine[] the appropriate level of [child] support." Ibid.
"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." N.J.S.A. 2A:34-23(c). "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis, supra, 83 N.J. at 157 (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1956)).
Assessment of changed circumstances requires a judge to examine the parties' current situation and the situation when the order was entered. Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990) ("[I]t is clear that the changed-circumstances determination must be made by comparing the parties' financial circumstance at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations.").
Courts generally are reluctant to modify an award unless the change in circumstances is permanent. Lepis, supra, 83 N.J. at 151; see Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (affirming denial of second modification motion filed nine months after denial of first modification motion because obligor failed to demonstrate a substantial and permanent change); Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006) (holding that trial court correctly rejected modification motion as "anything other than temporary" based on declining income where motion was filed only twenty months after divorce).
We have recognized, however, that "[t]here is . . . 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." Donnelly, supra, 405 N.J. Super. at 128 (quoting Larbig, supra, 384 N.J. Super. at 23).
In September 2014, the Legislature amended the alimony and maintenance statute, N.J.S.A. 2A:34-23, "to more clearly quantify considerations examined when faced with a request to establish or modify alimony." Spangenberg v. Kolakowski, 442 N.J. Super. 529, 536-37 (App. Div. 2015). Although the amendments became effective September 10, 2014,
[t]he Legislature clarified that [the amendments] "shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: a. a final judgment of divorce or dissolution; b. a final order that has been concluded post-judgment litigation; or c. any enforceable written agreement between the parties.""This additional statement signal[ed] the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments." Spangenberg, supra, 442 N.J. Super. at 538.
[Quinn v. Quinn, ___ N.J. ___, ___ n.3 (2016) (slip op. at 20) (quoting L. 2014, c. 42, § 2).]
The JOD here was entered before the September 10, 2014 amendments to N.J.S.A. 2A:34-23, and does not include any provision concerning the modification of alimony or incorporate any agreement between the parties regarding modification of alimony. Defendant filed the motion for modification on September 30, 2014, following the effective date of the amendments. We therefore apply the relevant portions of the amendments to N.J.S.A. 2A:34-23 here to defendant's motion to modify the alimony award. Cf. id. at 537-39, 532 (finding the amendments to N.J.S.A. 2A:34-23 inapplicable to a modification motion made subsequent to the September 10, 2014 effective date because the parties' marital settlement agreement entered in June 2012 "provided for review of defendant's alimony obligation upon plaintiff's cohabitation," "consistent with [Gayet v. Gayet, 92 N.J. 149 (1983),] and evolving caselaw").
A.
Defendant first argues that the court erred in rejecting his claim of changed circumstances based upon the loss of his employment as a loan officer, his inability to obtain reemployment as a loan officer, his failed real estate investments, and his lack of income from sales of his book. He also argued that the changed circumstances included a change in plaintiff's earning capacity and her cohabitation with her boyfriend.
Under the amendments to N.J.S.A. 2A:34-23, subsection (k) provides that "[w]hen a non-self-employed party seeks modification of alimony," "[t]he court shall determine the application based upon all of the [following] enumerated factors[:]"
1) The reasons for any loss of income;
2) Under circumstances where there has been a loss of employment, the obligor's documented efforts to obtain replacement employment or to pursue an alternative occupation;
3) Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;
4) The income of the obligee; the obligee's circumstances; and the obligee's reasonable efforts to obtain employment in view of those circumstances and existing opportunities;
. . . .
7) Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;
8) The reasons for any change in either party's financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party's financial circumstances at the time of the application are attributable to
enhanced earnings or financial benefits received from any source since the date of the order;Where, as here, a non-self-employed party moves for a reduction of alimony based upon an "involuntary loss of employment," the court "shall not" only consider "the length of time [the] party has been involuntarily unemployed or has had an involuntary reduction in income" but instead is required to "determine the application upon all of the enumerated factors." N.J.S.A. 2A:34-23(k).
9) Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought . . .; and
10) Any other factor the court deems relevant to fairly and equitably decide the application.
[N .J.S.A. 2A:34-23(k).]
We are convinced the court erred in rejecting defendant's claim that his involuntary loss of employment and concomitant decreased earning capacity was a possible changed circumstance requiring a plenary hearing on his motion for a reduction in alimony and child support. Defendant presented uncontroverted evidence that he had been involuntarily laid off from his position as a loan officer in June 2013 due to a "lack of work," and consistently but unsuccessfully sought reemployment as a loan officer for the fourteen-month period prior to filing his motion for a reduction in his alimony and child support obligations. The court, however, found only that too little time had passed since the entry of the JOD to permit its consideration of defendant's involuntary unemployment and reduction in income as a changed circumstance requiring a plenary hearing.
N.J.S.A. 2A:34-23(k) expressly barred the court's singular reliance upon the length of defendant's period of involuntary unemployment and reduction of income as a basis for its denial of defendant's motion. The court was required to consider all of the enumerated factors in N.J.S.A. 2A:34-23(k) in its determination of whether defendant demonstrated a sufficient change in circumstances to warrant a plenary hearing on his motion for a modification of alimony, and was required to consider whether defendant's "change in financial circumstance[s]" warranted a modification of the previously determined child support in the JOD. Jacoby, supra, 427 N.J. Super. at 119. We are constrained to conclude that the court erred by failing to do so.
The court also erred by failing to compare the parties' financial circumstances at the time the initial support order was entered with the circumstances presented by defendant in his modification motion. Beck, supra, 239 N.J. Super. at 190. Defendant argued before the motion court that the trial court based its alimony and child support awards on defendant's ability to earn income as a loan officer, income from his real estate investments, and revenue from book sales. He further argued that his inability to continue employment as a loan officer, the failure of his real estate investment, and the lack of any revenue from the sale of his book constituted a change in the circumstances upon which the trial court calculated his imputed income and determined the alimony and child support awards.
We agree with defendant that the motion court did not make any findings concerning the circumstances relied upon by the trial court as the basis for its alimony and child support awards and whether those circumstances had changed. See Salch v. Salch, 240 N.J. Super. 441, 443 (App Div. 1990) ("Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in his mind."). Without such findings, we cannot determine whether the court correctly concluded that defendant failed to demonstrate that the circumstances supporting the trial court's awards had sufficiently changed to require a plenary hearing on defendant's modification motion. Beck, supra, 239 N.J. Super. at 190. On remand, the court must make findings regarding the circumstances supporting the trial court's alimony and child support awards and determine whether defendant has met his burden of demonstrating a change in those circumstances sufficient to warrant a plenary hearing.
We do not suggest that defendant has misrepresented the basis for the trial court's decision. We note only that the motion court did not make any findings concerning the basis for the trial court's alimony and child support awards, the JOD does not include the findings of the trial court supporting the awards, and there is no indication that the motion judge was provided with the trial record showing the circumstances supporting the alimony and child support awards.
B.
On remand the court must also consider and make findings in accordance with Rule 1:7-4 concerning defendant's assertion that he was entitled to a modification of his alimony obligation based on plaintiff's cohabitation with her boyfriend. A change in circumstances can be demonstrated by "post-divorce cohabitation." Gayet, supra, 92 N.J. at 152-55. N.J.S.A. 2A:34-23(n) identifies the factors a court must consider when a payor requests modification or termination of alimony based upon the payee's cohabitation with another person and provides that "[a]limony may be suspended or terminated if the payee cohabits with another person."
A movant must present a prima facie case of "a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household," including "intertwined finances," "joint responsibility for living expenses," social "recognition of the relationship," "living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship," "sharing household chores," and any "other relevant evidence." Ibid. "A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis." Ibid.
If such a prima facie showing of cohabitation is made, the court may order discovery. Gayet, supra, 92 N.J. at 154-55. The movant's prima facie showing of cohabitation "creates a rebuttable presumption of changed circumstances" which the dependent ex-spouse may attempt to rebut "with proof that the need for support remains the same." Ozolins v. Ozolins, 308 N.J. Super. 243, 245, 248-49 (App. Div. 1998).
In support of defendant's application for modification based on plaintiff's cohabitation, defendant alleged that plaintiff's paramour, B.M., lived with plaintiff because his truck was always in plaintiff's driveway, the children told defendant that B.M. lives with plaintiff, B.M. carries groceries to plaintiff's home, B.M. walks around plaintiff's neighborhood, B.M. accompanies plaintiff to the court proceedings, B.M. attends the children's social events, and B.M. attends holidays with plaintiff.
During the motion hearing on October 23, 2014, the judge indicated that she had been provided with a document showing that B.M. maintained his own residence. Defendant stated that he was not provided with the document by plaintiff and the document is not part of the record before us. We are satisfied that the court erred in considering evidence that was not provided to all of the parties as required under Rule 5:5-4(d).
Moreover, the court did not address the claim of cohabitation in its denial of defendant's motion, but instead addressed it for the first time during the hearing on the motion for reconsideration. The court briefly asked plaintiff some questions, determined that she was not cohabiting with her boyfriend, and found that defendant had not sufficiently established plaintiff's cohabitation was a changed circumstance requiring a plenary hearing.
The court failed to make any findings of fact or conclusions of law concerning the circumstances relevant to its determination of defendant's claim of changed circumstances based upon cohabitation under N.J.S.A. 2A:34-23(n). On remand, we direct that the court make the requisite findings of fact and conclusions of law required by Rule 1:7-4 in its determination of whether defendant has made a sufficient showing of cohabitation as a changed circumstance to require a plenary hearing.
We do not offer an opinion as to whether a plenary hearing is required on one or more of the bases for defendant's claimed entitlement to a modification of his alimony and child support obligations. As noted, we remand because the court failed to consider and make the findings required under Rule 1:7-4 as to the enumerated factors under N.J.S.A. 2A:34-23(k) and (n) and otherwise in its determination that defendant failed to establish changed circumstances. We note, however, that a court is required to conduct a plenary hearing when a moving party establishes a change in circumstances and "clearly demonstrate[s] the existence of a genuine issue as to a material fact." Lepis, supra, 83 N.J. at 159.
The court must also address and make findings under Rule 1:7-4 concerning whether defendant sufficiently demonstrated that plaintiff's earning capacity has changed to warrant a plenary hearing. --------
Because we remand the matter for the court to make the requisite findings under Rule 1:7-4, it is unnecessary to address defendant's claim that the court erred in denying defendant's motion for reconsideration.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION