Opinion
DOCKET NO. A-5660-13T1
01-11-2016
JACOB LAZAR, Plaintiff-Appellant, v. AMY LAZAR, Defendant-Respondent.
Bruce Dickstein, attorney for appellant. Cathy J. Pollak, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2067-09. Bruce Dickstein, attorney for appellant. Cathy J. Pollak, attorney for respondent. PER CURIAM
Plaintiff Jacob Lazar appeals from a June 27, 2014 order denying his motion to enforce the provisions of the final judgment of divorce (FJOD), requiring defendant Amy Lazar to pay past due alimony totaling approximately $126,000. Plaintiff moved to Israel shortly before finalization of the FJOD and defendant never paid the ordered alimony sum, asserting plaintiff failed to provide a mailing address. In his pleadings, plaintiff explained his enforcement request was delayed, as he was homeless and suffered from physical and mental problems, which interfered with his ability to address the matter. The trial judge considered the pleadings and denied relief. He concluded plaintiff's failure to provide an address to facilitate payment was a condition precedent to his receipt of alimony. Therefore, his "material violation" resulted in a waiver of all past due payments.
Following our review, we reject the judge's factual findings drawn without benefit of a plenary hearing as well as his erroneous legal conclusions invoking the doctrine of waiver. We reverse the June 27, 2014 order and remand the matter for a plenary hearing.
Plaintiff and defendant married in 1979. They had four children. Thirty years later, plaintiff filed for separate maintenance and defendant counterclaimed for divorce. Defendant was ordered to provide pendente lite support, from which plaintiff's child support obligation was offset. Thereafter, the parties agreed to resolve all collateral issues through binding arbitration. On October 25, 2010, prior to the conclusion of the arbitration process, plaintiff flew to Tel Aviv, Israel.
The final arbitration award was issued on December 10, 2010. The arbitrator's written decision recounts plaintiff's work history, disrupted by hospitalizations for depression. He had been treated with electric shock therapy and prescribed lithium, Cymbalta, and Seroquel. The arbitrator found although plaintiff did not prove he was disabled, his earning ability was limited. On the other hand, defendant continued to advance in her professional career and increase her earnings.
Consequently, the arbitrator concluded plaintiff was entitled to financial support. Commencing December 1, 2010, plaintiff was awarded a sum of alimony along with a portion of defendant's bonus income. Plaintiff was ordered to pay child support as two of the parties' children, who lived with defendant, remained unemancipated. Thereafter, defendant was to submit the net weekly support amount to plaintiff, through counsel.
Section K of the final arbitration award, entitled "Mr. Lazar's Residence Address[,]" noted plaintiff was living in Israel and all payments were, at that time, transmitted to him through counsel. The remand ended counsel's intermediary role and stated, "[p]laintiff is hereby DIRECTED within ten (10) days of the date of the Final Decision After Arbitration to notify the defendant of his residence address so that the [d]efendant may send alimony payments to him directly in Israel."
The arbitration award was confirmed and incorporated into the FJOD on July 1, 2011. The FJOD was sent to plaintiff in care of a friend's Israeli address and via email. It is undisputed defendant made no alimony payments.
Plaintiff moved to enforce litigant's rights on April 1, 2014. Plaintiff's motion followed on the heels of failed negotiations to reach an amicable resolution. Citing the provisions of the FJOD, plaintiff sought various relief. Defendant filed a cross-motion requesting offsets and other relief. The parties resolved all disputes except whether defendant was obligated to pay alimony from the date of the arbitration award to the date plaintiff filed his motion for enforcement.
In their respective certifications supporting the respective motion and cross-motion, plaintiff and defendant dispute these facts. Plaintiff averred defendant was always informed of his whereabouts and could have communicated with him. Specifically, he certified after relocating to Israel he provided defendant with his address and email, which had never changed. He also stated defendant knew his cousin's Israeli address, which was in the same neighborhood as the friend with whom he was staying and, further, the children always had a means to contact him. He noted shortly after the entry of the FJOD, he returned to the United States, but was homeless, financially destitute, and suffering from "debilitating mental health issues," as previously experienced during the marriage. Eventually, he was able to engage current counsel in August 2013, who wrote to defendant's attorney on August 30, 2013, requesting payment of more than $125,000 in past due alimony.
Defendant averred she was not provided with plaintiff's address and suggests he was "hiding" in Israel. She emphasized plaintiff's failure to comply with his obligations under the FJOD, including to facilitate the issuance of a religious dissolution of the marriage. She further refuted plaintiff's assertions requested payment be transmitted through direct deposit of the net support. Finally, she challenged his right to receive past alimony payments as ordered in the FJOD because she: (1) believed plaintiff had been cohabiting or was possibly remarried; (2) suffered a period of unemployment in June 2012; and (3) was never provided with plaintiff's address.
The motion judge considered oral argument on June 27, 2014. Despite the conflicting information contained in the parties' certifications, he found plaintiff had not provided an address to defendant and he "did not buy [plaintiff's] claim of depression as being the reason . . . ." The judge concluded giving defendant his address was "material" and plaintiff's failure to do so was a "material violation" of the arbitration award. The judge further justified his conclusion stating he "believed defendant was prejudiced" as the lack of an address "deprived defendant . . . of . . . potentially filing what may have been a Lepis-type modification motion . . . for reduction of her alimony [obligation]" and also noted the passage of time resulted in a large accumulated amount.
Lepis v. Lepis, 83 N.J. 139 (1980).
The judge entered an order denying plaintiff's motion for payment of alimony and for discovery to compute his proportionate share of defendant's bonus income from November 1, 2010 until April 1, 2014, the date ordered for defendant to resume her payment obligation.
On appeal, plaintiff argues the trial judge erroneously concluded his entitlement to alimony was contingent on providing defendant a mailing address and challenges the finding of suffered prejudice supporting waiver. He reiterates he provided the required information, which was otherwise accessible by defendant. Moreover, plaintiff maintains his right to support is not eliminated simply because defendant did not know his address. Plaintiff also refuted the finding of possible prejudice as unfounded. First, he noted defendant never filed a motion for modification of alimony or other relief. Second, plaintiff had consented to reduce alimony arrears by eliminating all weeks defendant was unemployed. On the other hand, defendant argues the judge did not abuse his discretion in denying plaintiff's enforcement requests and, alternatively, argues the equitable doctrines of laches, unclean hands and estoppel bar relief.
When reviewing a trial judge's order, we defer to factual findings "supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "On the other hand, a 'trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.'" Spangenberg v. Kolakowski, ___ N.J. Super. ___, ___ (App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "To the extent that the trial court's decision constitutes a legal determination, we review it de novo." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013).
Where a decision on plaintiff's motion is solely based on the factual finding of whether defendant knew where to send alimony payments, the Family Part judge's decision must be reversed because such a determination can only be made following a plenary hearing. A trial court must hold a plenary hearing when a motion raises a genuine issue of material fact. Tretola v. Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006). See, e.g., Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), (requiring a hearing when the parties filed contradictory certifications disputing whether the parties had reached final agreement), certif. denied, 142 N.J. 455 (1995); Conforti v. Guliadis, 128 N.J. 318, 322-23 (1992) (requiring a hearing when equity may mandate modification or reformation of a marital settlement agreement). Material factual disputes cannot be resolved by the trial court based solely upon conflicting affidavits and certifications. Moreover, if a factual finding turns on a credibility determination, testimony is necessary.
Examining the judge's focus on plaintiff's provision of an address as a "material" provision of the arbitration award, a point we will address below, we note the parties' submissions were at odds. Plaintiff asserted he related a contact in Israel along with his email address, defendant was aware of his nearby relative, and he consistently maintained communication with the children. Defendant emphatically refuted these facts, insisting defendant did not provide a forwarding address. Given the conflicting assertions on this point, a plenary hearing was mandated. See Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Palmieri v. Palmieri, 388 N.J. Super. 562, 563 (App. Div. 2006); Harrington, supra, 281 N.J. Super. at 47.
Also, if the issue of notice was pivotal to assess plaintiff's enforcement request, his explanations of ill health, homelessness, and mental illness, which he asserted prevented more timely enforcement, cannot be ignored. The motion judge stated he "did not buy [plaintiff's] claim of depression as being the reason" for delay. However, such a credibility determination was improperly made from review of pleadings.
We have observed: "Too often, judges deciding issues in the Family Part . . . rely solely on the 'voices' of the attorneys who prepare the competing affidavits and certifications on the pretense that the litigant is speaking." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998). When these claims are in conflict, "[t]he credibility of the parties' contentions may wither, or may be fortified, by exposure to cross-examination and through clarifying questions posed by the court" in a plenary hearing. Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.), certif. denied, 187 N.J. 81 (2006). Accordingly, credibility findings cannot be made on the motion papers.
Having addressed the judge's unsupported factual findings, we turn to the legal conclusions reached. The nature of the parties' agreement was to accept the arbitration award as binding, enforceable, and resolving all disputed collateral issues. Once incorporated into the FJOD, "[t]he judicial task is simply interpretative[.]" Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Our review of the court's interpretation of the arbitration award terms is plenary.
After considering all evidential submissions and evaluating the facts, including but not limited to, the parties' past and current earning ability, their long-term marriage, their needs and budget, and the needs of the children, the arbitrator concluded plaintiff was entitled to alimony and defendant was able to pay the awarded sum. The inclusion of plaintiff's obligation to provide his address was designed to effectuate defendant's payment; it was neither material to determining plaintiff's legal entitlement to alimony nor a condition precedent triggering defendant's legal obligation. We recognize the lack of address might impede defendant's means to pay plaintiff and, if shown to be true, likely would defeat sanctions for noncompliance or even interest on past sums due. Moreover, if plaintiff's mental health and related circumstances actually precluded his ability to communicate with defendant, the delay may be fully explained and justified. The amplification and illumination of these facts may justify the need for an evidentiary hearing. Nevertheless, plaintiff's failure to remit his address to defendant does defeat her underlying legal obligation to provide for plaintiff's support.
Fundamentally, alimony is not intended to be a punishment or a reward, Mani v. Mani, 183 N.J. 70, 80 (2005), but exists only "to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). See also Gnall, supra, 222 N.J. at 429 ("Alimony relates to support and standard of living; it involves [an assessment of] the quality of economic life to which one spouse is entitled, which then becomes the obligation of the other.").
Giving the provisions of the arbitration award their ordinary meaning, Flanigan v. Munson, 175 N.J. 597, 606 (2003), no language in section K supports the judge's conclusion the direction to plaintiff to supply a current address was a condition precedent to trigger defendant's obligation such that if there was no address, plaintiff lost his right to receive support. The creation of a condition precedent "must be expressed in clear language," as condition precedents are "disfavored by the courts" because "failure to comply with a condition precedent works a forfeiture." Liberty Mut. Ins. Co. v. President Container, Inc., 297 N.J. Super. 24, 34 (App. Div.) (citations omitted), certif. denied, 149 N.J. 406 (1997).
Following our review of the arbitration award as a whole, we conclude section K was merely one mechanism for defendant to complete her mandated performance. The cited section directed plaintiff to provide an address "so that the [d]efendant may send alimony payments to him directly in Israel." (emphasis added). To conclude the lack of compliance with this provision results in forfeiture of required support is simply incorrect. Cf. Town of Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 412-13 (2011) (describing a judicial preference for contract interpretations that do not result in forfeitures in the commercial lease context).
As such, defendant's related argument that once contacted by plaintiff's counsel to resume alimony, defendant had no obligation to resume payment until plaintiff gave her an address in Israel is rejected as meritless. R. 2:11-3(e)(1)(E).
We also fail to understand the trial judge's suggestion forfeiture of the alimony award was mandated because of prejudice resulting to defendant. We find no support for such a finding.
Defendant was aware of the legally imposed support obligation. The record shows the FJOD was noticed by publication and plaintiff states he was emailed a copy. Defendant, therefore, was well-acquainted with procedures to effectuate service upon an elusive party. Were the judge's suspicions of untoward behavior confirmed by evidence showing plaintiff was willfully evading service, appropriate monetary relief could be awarded. Yet, the record does not support such a finding. Moreover, at no point did defendant chose to move for relief. Instead, she merely decided to not act to modify her obligation.
The defendant's accumulated alimony arrearages also do not demonstrate prejudice. Contrary to the judge's suggestion, no statutory or other legal authority mandates imposition of a lump sum payment of support arrearages. See N.J.S.A. 2A:34-23(m) (granting court broad powers in crafting temporary remedies). Courts are authorized to craft a fair and equitable plan for repayment, which could include a lump sum payment, after weighing all facts and circumstances facing the parties.
There is no basis in the record to know whether defendant could pay a lump sum of all or part of determined arrears. Moreover, no facts show she would suffer if ordered to do so.
We turn to defendant's arguments seeking to impose various equitable principles to legally bar plaintiff's request for enforcement of the FJOD alimony provisions. To the extent the motion judge applied these doctrines, his determination must be set aside because he failed to state the factual underpinnings for their application. R. 1:7-4 (a) (mandating the court shall "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right"). Bare conclusions do not satisfy the purpose of the rule.
The policy supporting application of unclean hands denies relief to a wrongdoer. Borough of Princeton v. Bd. of Chosen Freeholders of Mercer Cnty., 169 N.J. 135, 158 (2001). "[W]hile general iniquitous conduct will not operate to bar plaintiff from relief by reason of unclean hands, iniquitous conduct relating to the particular matter or transaction to which judicial protection is sought will operate to bar relief." Pollino v. Pollino, 39 N.J. Super. 294, 299 (Ch. Div. 1956). "In this respect, equity follows the common law precept that no one shall be allowed to benefit by his own wrongdoing. Thus, where the bad faith, fraud or unconscionable acts of a petitioner form the basis of his lawsuit, equity will deny him its remedies." Rolnick v. Rolnick, 290 N.J. Super. 35, 45 (App. Div. 1996) (citations omitted). No such facts are found in this record.
Defendant's denunciation of plaintiff's conduct occurring before entry of the FJOD had been considered and was addressed by the arbitrator. This conduct cannot be used to sustain a claim of unclean hands to bar enforcement of the provisions reached. --------
Further, equitable estoppel has no application to the facts at hand. Equitable estoppel is "the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . . ." Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 571 (App. Div. 2003) (alterations in original) (citations omitted). To assert "equitable estoppel, the claiming party must show that the alleged conduct was done . . . intentionally or under such circumstances that it was both natural and probable that it would induce action." Miller v. Miller, 97 N.J. 154, 163 (1984). Additionally, "the conduct must be relied on, and the relying party must act so as to change his or her position to his or her detriment." Ibid. The burden of proof in asserting equitable estoppel rests "on the party asserting estoppel." Ibid. Defendant demonstrated no detrimental reliance. She never suggested plaintiff induced her to believe she had no obligation to pay him alimony. Moreover, she never attempted to clarify her obligation or file a modification motion. Finally, she failed to prove she altered her conduct in any way.
This last fact also defeats defendant's claim of laches. "Laches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other [party] so that it would be inequitable to enforce the right." L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). It involves more than mere delay, mere lapse of time. "The length of delay, reasons for delay, and changing conditions of either or both parties during the delay are the most important factors that a court considers and weighs." Lavin v. Bd. of Educ., 90 N.J. 145, 152 (1982). "There must be delay for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27 N.J. 144, 153 ( 1958); see also Graceway Pharms., LLC v. Perrigo Co., 722 F. Supp. 2d 566, 570 (D.N.J. 2010) ("[T]o establish laches, a defendant must make a showing in regard to material prejudice."). "The core equitable concern in applying laches is whether a party has been harmed by the delay." Knorr v. Smeal, 178 N.J. 169, 181 (2003) (emphasis added). No facts support a finding defendant was misled by the delay, to her detriment.
We reverse the June 27, 2014 order and remand this matter to the Family Part. Because the motion judge interjected credibility findings, the case must be reassigned by the Presiding Judge to a different Family Part judge for de novo review. On remand, the assigned judge must review the legal issues presented. To the extent a determination is found to turn on competing factual assertions, a plenary hearing is necessary and shall be scheduled.
Reversed and remanded. 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