Opinion
DOCKET NO. A-5439-11T2
04-24-2013
SUZANNE OUGHTON, Plaintiff-Respondent, v. BRIEN OUGHTON, Defendant-Appellant.
Laurie J. Madziar argued the cause for appellant (Iandoli & Edens, LLC, attorneys; Ms. Madziar, on the brief). Vincent Di Gregorio argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-174-11X.
Laurie J. Madziar argued the cause for appellant (Iandoli & Edens, LLC, attorneys; Ms. Madziar, on the brief).
Vincent Di Gregorio argued the cause for respondent. PER CURIAM
In this post-judgment matrimonial matter, defendant Brien K. Oughton appeals from that portion of a Family Part order dated May 25, 2012, which denied defendant's motion to decrease his child support and alimony obligations. For the reasons that follow, we affirm the order.
I
The parties were married in 2000 and had two children who were born in 2001 and 2007. Following a four-day trial, which commenced on April 28, 2011, and concluded on May 26, 2011, the trial judge entered a dual judgment of divorce (JOD) on July 14, 2011. The JOD provided that defendant pay alimony in the amount of $850 per week for ten years, and child support in the amount of $231 per week, later modified to $227 per week.
On April 25, 2012, defendant filed a post-judgment motion seeking a reduction in both his alimony and child support obligations. Defendant cited changed circumstances, specifically that the stress associated with his primary employment as a firefighter, along with substantial hours working at a second job, was detrimental to his health and rebuilding his relationship with his children. Consequently, on January 20, 2012, defendant requested and was granted a temporary leave of absence under the Family Medical Leave Act from his second job at Astro Pak, where defendant worked on an "as-needed basis."
The motion judge, who had also presided over the parties' divorce trial the previous year, denied defendant's application for a downward modification of his child support and alimony obligations, without oral argument or a plenary hearing. The judge did not issue a written or oral decision, but prepared the May 25, 2012 order, which explained that:
Defendant has fail[ed] to allege or prove a change of circumstances warranting reduction or termination, per Lepis v. Lepis, 83 N.J. 139 (1980). A temporary loss of employment or a temporary drop in income (lasting 3-6 months) is not a basis for modification of support. See Bonanno v. Bonanno, 4 N.J. 268 (1950). Defendant certifies that he took a short time family leave from his second job, at Astro Pak, to work on his physical and mental health, as well as his relationship with his daughters. However, the leave, as well as his contacting Astro Pak regarding working hours indicates that his decision to stop working a second job was only temporary. Moreover, upon examination of Defendant's attached W-2s for 2011, the Court notes that Defendant made $129,455 in gross taxable wages from his work as a fire fighter. He further made $41,594 at his second job, making his total gross-taxable income in 2011 $171,049. The Court does not find present a reduction in pay from the $140,000 income used by the Court in July of 2011, in calculating an appropriate alimony and child support award that would warrant Defendant's request for a reduction in alimony and child support at this time. The Court shall recalculate support in September, 2012, upon motion of the parties, as determined in the parties' Final Judgment of Divorce (JOD).
The judge then supplemented the record with an oral statement of reasons on July 19, 2012, after defendant filed a Notice of Appeal. The judge referenced the findings of fact and conclusions of law which she had entered on the record on July 8, 2011, at the conclusion of the parties' divorce trial. The judge explained that defendant provided insufficient proofs demonstrating a change in circumstances since that time, and thus a plenary hearing was not warranted.
II
On appeal, defendant argues that the judge erred in denying oral argument; in denying his request for a downward modification based on changed circumstances; and in failing to order a plenary hearing.
We turn to defendant's first contention, that the judge improperly denied his request for oral argument. Defendant contends that oral argument should have been granted so that he could have fully argued his claim of changed circumstances due to his medical condition arising from the stress associated with continuing to work two jobs, and to also clarify his attendant loss of earnings. Plaintiff argues that the trial judge did not abuse her discretion because there were no substantial issues of material fact and the record was sufficient to decide the issues presented.
Rule 5:5-4(a) states:
Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery
motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.
This rule has been interpreted as "mandating argument when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998). "The denial of such argument deprives litigants of an opportunity to present their case fully to a court." Ibid. "However, the Rule still permits a trial court to exercise its discretion to deny such requests, even in cases involving 'substantive' issues." Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. Div. 2010). The intention of this rule:
is to give the trial judge the option of dispensing with oral argument . . . when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. In short, it is the sole purpose of this rule to dispense with what is regarded as unnecessary or unproductive advocacy."Advocacy does not become necessary or productive simply because the parties disagree as to facts, however minor." Palombi, supra, 414 N.J. Super. at 285.
Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982).
While not absolute, oral argument is normally granted where substantive issues are involved. Requests for oral argument on a substantive issue may be denied if the motion is frivolous, repetitive, unsubstantiated or intended to harass. Kozak v. Kozak, 280 N.J. Super. 272, 275-77 (Ch. Div. 1994). We have found that oral argument should have been granted on such substantive issues as emancipation of the parties' children, Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997), and change of custody, Mackowski, supra, 317 N.J. Super. at 14.
Here, defendant's motion to modify his child support and alimony obligations based on changed circumstances presented a substantive issue on which oral argument should normally be granted. Our decision to affirm should not be interpreted as condoning a departure from that general rule. However, we conclude that any error by the judge in denying oral argument was harmless, under the particular facts and circumstances presented. In this case, within the past year the judge had conducted a four-day trial, during which she heard the parties' complete financial circumstances and had the opportunity to fully assess their demeanor. The record reflects that additional post-judgment applications were filed by the parties and addressed by the judge in November 2011. Thus, when defendant filed this motion in April 2012, the judge was abundantly familiar with the parties, their complete financial picture, the arguments which they had previously raised, and those which they continued to advance. Moreover, having ourselves had the opportunity to engage counsel for the parties at oral argument, for the reasons which follow we agree that defendant failed to demonstrate changed circumstances sufficient to warrant modification of his alimony and support obligations, which had been established merely nine months earlier.
The issues raised in those post-judgment applications are not the subject of this appeal.
We turn then to defendant's next argument, that the judge erred in failing to reduce his alimony and child support obligations due to an insufficient showing of changed circumstances.
Defendant's application to modify support is governed by well-settled principles. A party seeking to modify spousal or child support has the burden to present a prima facie showing of changed circumstances to warrant discovery. See Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Support orders are always subject to review and modification upon such a showing. Id. at 146; see also N.J.S.A. 2A:34-23 (stating that child support orders "may be revised and altered by the court from time to time as circumstances may require").
There is no mathematical formula for determining what change of circumstance is significant. See Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (affirming modification where payor's gross income dropped almost fifty percent); Beck v. Beck, 239 N.J. Super. 183, 186, 189-90 (App. Div. 1990) (finding changed circumstances where supporting spouse's income had "declined dramatically over the last several years," dropped from $155,000 to $118,000 in one year, college costs reduced available income, and the supported spouse's income had risen).
In accordance with these general principles, courts have recognized "changed circumstances" in situations which include "illness, disability or infirmity arising after the original judgment." Lepis, supra, 83 N.J. at 151 (emphasis added). Here, defendant contended that the "stress of working two jobs increasingly became more and more unbearable." In August 2010, he sought help for his stress from a counselor, Joy Horvath, who warned him that he "might have a mental breakdown" if he continued to work both jobs. In her April 18, 2011 report, issued prior to the commencement of the divorce trial, Horvath noted that defendant "presented as stressed during sessions," and "was open to processing his anger and anxiety which he attributed to his working two full[-]time jobs."
In her supplemental statement of reasons for denying defendant's requested modification, the judge expressly noted that Horvath's letter was "dated prior to the first of the parties' trial dates." Moreover, "the [d]efendant raised the issue of his inability to work two jobs during the course of the trial. The [c]ourt found defendant offered no [] proof to support his claim, meaning his claim as to his inability to continue to work two jobs." In defendant's certification, submitted in support of his modification motion, we note that defendant conceded that "[i]n May 2011[,] I testified in court that I was physically and mentally incapable of continuing to work two high[-]stressed jobs. However, the Judgment of Divorce entered in July 2011 has forced me to continue doing so."
The judge further noted that she had placed her findings of fact and conclusions of law on the record at the conclusion of the divorce trial. The judge stated "[T]he Appellate Division should be provided with [a] transcript of these findings, as they [] relate directly to the issue which is presently under appeal." We note, however, that we have not been provided with this transcript of the judge's earlier findings.
To support his claim of changed circumstances, defendant certified in his motion that in January 2012, he began seeing a psychologist, Lynn Bisco, who was referred to him by Horvath. Defendant further stated that "Dr. Bisco advised that I take time off from Astro Pak to see what effect it would have on my life. As a result of this recommendation I requested a temporary family leave from my second job [.]"
Dr. Bisco's letter report, dated March 8, 2012, appended to defendant's modification motion, states that defendant sought psychotherapy with her commencing January 30, 2012. We note that this was some ten days after defendant had already taken a leave from his second job at Astro Pak on January 20, 2012; hence, Dr. Bisco's "recommendation" could not have formed the basis for defendant's decision to leave ten days earlier. Dr. Bisco's report noted "Brien realized that only he could improve his health and reduce his symptoms by taking a leave from his second job."
In any event, Dr. Bisco's March 8, 2012 report concluded:
In summary, for Brien to continue what often amounted to two full-time jobs would be detrimental to his mental health which could also eventually jeopardize his physical health. Having finally had the time to develop his father/daughter relationships — not just being the "provider dad" — it is recommended that he continue a normalized work schedule that allows him to be a parent and live a healthy life.
Brien has utilized his weekly sessions to cope with the above issues as well as to deal with ongoing conflicts that remain post-divorce. He is responsive to therapy and continues to make progress towards his goals.
We view Horvath's pre-divorce report, and Dr. Bisco's post-divorce report, as largely consistent. Both professionals essentially indicate that defendant identified his working two jobs, and the impact of the divorce on his relationship with his children, as the sources of his stress and anxiety. Nothing in the evidence suggests that any post-divorce event exacerbated defendant's condition. If anything, rather than his workload increasing, defendant's hours at Astro Pak had been reduced, as evidenced by a November 9, 2011 letter from Dee-Anna Robbins, Astro Pak's Asst. Controller/Human Resources Coordinator, which stated:
Mr. Oughton was hired in December 2007 to work for us, as needed and when available. He works full time with the fire department so his Astro Pak hours are only when he is available due to his fire department schedule.
His hours have been reduced this year due to his unavailability due to his fire department job in which he works full time. We have full time employees who are getting the hours instead.
The trial court's denial of defendant's modification motion was not merely limited to its finding that defendant failed to demonstrate that his medical condition had changed since the time of the divorce. Rather, the judge determined that even if defendant's circumstances had changed, defendant failed to establish that any such change was more than merely temporary.
A temporary change in a former spouse's income does not warrant modification. Innes v. Innes, 117 N.J. 496, 504 (1990); Lepis, supra, 83 N.J. at 151. There is "no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation." Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006) (rejecting request to modify alimony and child support filed twenty months after entry of judgment). The trial court exercises broad discretion in this area. Id. at 21.
During the course of the parties' marriage, defendant had initially worked for the predecessor company of Astro Pak, "earning substantially more than what I earned as a firefighter when I first started." Defendant in his modification motion acknowledged that "[a]s a result of this reduced salary it was necessary for me to continue to work a second job to support my family. I worked at Astro Pak on an 'as [-]needed' basis with my hours typically ranging from ten to fifty per week (in addition to the forty-two hours at the firehouse.)"
In Larbig v. Larbig, supra, 384 N.J. Super. at 19-20, defendant ex-husband moved for the downward modification of his alimony and child support obligations, claiming his business was in decline and his income significantly diminished as a result. The trial court denied the motion, focusing on the fact that the motion was filed twenty months after the entry of the judgment of divorce. Id. at 20. The trial judge did not conduct a hearing and concluded that the defendant "had failed to demonstrate that, even if [his business's] condition was as he alleged, the change was anything other than temporary." Id. at 22. We concluded that "[t]he trial judge did not abuse his discretion in leaving undisturbed the alimony and child support obligations because defendant's motion was filed only twenty months after entry of the judgment of divorce--a fact that strongly suggested defendant's reduced income had not become permanent." Id. at 19. We stated:
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 that, in finding the alleged changed circumstance to be temporary at that point in time, [the trial judge] did not abuse his discretion. The timing of the motion certainly warranted that conclusion. In the same vein, [the trial judge] correctly determined not to permit discovery or a plenary hearing. Neither compulsory discovery nor a plenary hearing is required until a movant provides sufficient evidence of a material changed circumstance.
[Id. at 23.]
Similarly, in Donnelly v. Donnelly, 405 N.J. Super. 117 (App. Div. 2009), the trial judge denied defendant ex-husband's second application for a reduction in his support obligations. In affirming, we found that the trial judge correctly focused "on the length of time that had elapsed since the last milepost in these post-judgment proceedings." Id. at 127-28. Citing Larbig and Lepis, we stated,
After carefully reviewing the judge's earlier findings and the allegations contained in the most recent Lepis motion, we are satisfied that the trial judge properly exercised his discretion in concluding that Gregory had returned to court far too soon to obtain relief. Considering that this second Lepis motion was filed only nine months after the denial of the first Lepis motion, Gregory failed to demonstrate that his alleged change in circumstances was anything but temporary.
[Id. at 128.]
Here, the trial judge correctly determined that defendant's "leave [from Astro Pak], as well as his contacting Astro Pak regarding working hours[,] indicates that his decision to stop working a second job was only temporary." Defendant conceded in his moving papers that he had "requested a temporary family leave from my second job at Astro Pak." [Emphasis added.] When defendant filed his modification motion, it was only nine months after the court had conducted a full divorce trial. Moreover, when the motion was filed, defendant had only left his second job, voluntarily, for three months. These factors do not support a finding of a permanent, as opposed to temporary, change in circumstances.
Defendant further argues that, when presented with his temporary leave request, Astro Pak advised him that his job would no longer be available to him upon his return. This, however, fails to establish the requisite permanency, as defendant has not shown that he is unable to find another, less-stressful, second job.
The moving party must first make a threshold prima facie showing of changed circumstances before a plenary hearing will be ordered. Lepis, supra, 83 N.J. at 159; Larbig, supra, 384 N.J. Super. at 23. We conclude, as did the trial judge, that defendant offered insufficient evidence of changed circumstances, or that his condition is not temporary. It is on this basis that we determine the judge did not err in her decision to deny, without a plenary hearing, defendant's motion for a reduction in his alimony and child support obligations.
We note that in her May 25, 2012 order, the judge denied defendant's motion to modify alimony and child support, without prejudice. Presumably this was so as to not prelude a future application by defendant should his circumstances change or be deemed other than temporary.
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Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION