Opinion
DOCKET NO. A-3481-14T2
08-16-2016
CINDY B. VERGA, n/k/a CINDY B. LUXENBURG, Plaintiff-Respondent, v. GARY VERGA, Defendant-Appellant.
Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs). Cindy B. Luxenburg, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1868-11. Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs). Cindy B. Luxenburg, respondent pro se. PER CURIAM
Defendant Gary Verga appeals from a November 7, 2014 Family Part order that partially denied his requests for post-judgment relief, and from a January 9, 2015 order denying his motion to reconsider the November 7 order. Having reviewed defendant's arguments in light of the record and applicable legal principles, we affirm in part and reverse in part.
Defendant and plaintiff Cindy Verga were divorced on July 13, 2004 after nearly eighteen years of marriage. Their two children, Mark and Jamie, were born in 1988 and 1991. Before the judgment of divorce (FJD) was entered, plaintiff was awarded sole custody of the children, and defendant was ordered to pay plaintiff $622 per week in unallocated alimony and child support.
We use pseudonyms for the children to protect their privacy.
The FJD continued defendant's unallocated support obligation at $622 per week, but stated that in June 2005 the payment would be allocated between child support and alimony. The FJD also required defendant to pay the premium on his existing $1 million life insurance policy, which plaintiff owned. Any death benefit was to be divided equally among plaintiff and the two children. The FJD provided that defendant's wages would be garnished to satisfy his support obligations. As equitable distribution, defendant was obliged to pay plaintiff $100,000 at the rate of $10,000 a year, which was described as "additional support within the meaning of the Bankruptcy Code." The FJD stated that pendente lite support was predicated on $100,000 in annual income imputed to defendant and $29,000 imputed to plaintiff. The FJD acknowledged that both parties disputed those figures.
Plaintiff stated it is a thirty-year term life policy, issued in 1999. Defendant stated the annual premium is about $3000.
By the time the FJD was entered, defendant's arrears already exceeded $5000. He was incarcerated several times between March 2004 and 2014, to coerce compliance with his support obligations. An August 11, 2008 order stated that his arrears totaled $12,768.06, and indicated that his support payment had increased to $711 per week. The order also stated he had failed to pay plaintiff $9000 in court-ordered equitable distribution. By November 2008, "child support arrears" were $16,477.69, and defendant owed equitable distribution payments.
In February 2012, plaintiff and defendant's counsel entered a consent order requiring defendant to pay plaintiff $774 in unallocated weekly support, plus $30 towards arrears. The order stated that once Jamie was emancipated, the $774 would become all alimony. The order also required defendant to maintain the existing life insurance policy, pay plaintiff $10,000 in overdue equitable distribution monies, and contribute towards the children's college expenses.
A June 13, 2014 enforcement order continued defendant's weekly obligation of $774 plus $30. By that time, the $774 weekly payment had been converted to alimony, although the record does not reflect the exact date of Jamie's emancipation. The order stated that defendant's support arrears totaled $164,780.97.
The orders at issue here emanated from a motion defendant filed on August 1, 2014 seeking to reduce alimony. In a certification in support of the motion, defendant asserted plaintiff was living with her boyfriend and receiving financial support from him, including employment at his place of business. Defendant also certified that he had no assets or income and was unable to work due to mental health issues. His motion also sought to reduce his life insurance coverage to $500,000, which he asserted "would cover all outstanding amounts."
In a supplemental certification dated October 10, 2014, defendant requested that alimony be terminated retroactively for a period of fifty-three months. He asserted plaintiff had remarried and was living with her new husband. He also alleged that she had been living with her husband for over four years prior to the marriage. In support, defendant attached various documents bearing the husband's address, including letters from plaintiff and Mark in 2011, and documents regarding Jamie from 2010, 2011 and 2013. Defendant also sought termination of the life insurance obligation. He did not attach a Case Information Statement (CIS) to either of his submissions, and the record does not include the CISs that may have preceded entry of the FJD.
Plaintiff submitted two letters opposing defendant's motion, one in response to each of his certifications. Although her submissions do not satisfy the requirements of Rule 1:4-4(b) for affidavits, it suffices to say that she vigorously disputed defendant's assertions, save for her acknowledgement that she remarried on September 14, 2014.
The judge heard oral argument on defendant's motion on November 7, 2014. Although neither party was sworn, plaintiff stated on the record that, as early as August 1, 2014, she had planned to marry her new husband. The judge found that plaintiff's remarriage was grounds to terminate alimony, and made the termination retroactive to August 1, 2014, based on the filing date of defendant's motion. The judge acknowledged defendant's claim that plaintiff and her husband had been living together for several years, but stated that defendant had not submitted proof of cohabitation going back that far. The judge also noted that defendant had entered a consent order in 2012 affirming his alimony obligation.
Plaintiff contended that defendant owed roughly $170,000 in arrears, plus $160,000 that had been reduced to judgment. She also referred to a "$4 million prenuptial agreement," which she claimed had not been enforced. She denied that she had lived with her husband for four years, and stated she had paid rent when she lived at his residence.
Regarding the arrears, the judge acknowledged defendant's claimed inability to pay, but concluded nothing in the record demonstrated that he was unable to work. The judge stated that defendant would be ordered to make the same $804 weekly payment, with the entire amount going towards arrears. The judge also denied defendant's request to reduce his life insurance coverage, apparently out of concern that the policy benefit was the only financial support the family would receive from him. The judge also noted that defendant consented to the February 2012 order requiring him to maintain $1 million in coverage.
The judge asserted that his file did not include defendant's initial certification, which included documentation of his medical condition.
In its November 7, 2014 order, the court terminated alimony effective August 1, 2014, and required defendant to maintain the $1 million life insurance policy. The order stated that defendant's "child support/alimony payments are to continue at present levels" and suspended his driver's license as a sanction for non-payment. The judge also ordered defendant to produce a current CIS and 2012 and 2013 tax returns in advance of a November 14 enforcement hearing.
The order from the enforcement hearing established defendant's arrears at $170,193.64, and set a weekly obligation of $30. The order acknowledged that defendant received unemployment and medical disability benefits and had applied for Social Security disability. Thereafter, on November 17, 2014, the court entered an amended order stating that defendant's "child support and alimony payments are to continue as an arrears only payback in the amount of $804 per week" through Probation.
There is no indication in the record that defendant complied with the previous order and filed his CIS and tax returns.
Defendant filed a motion to reconsider the November 7 and 17 orders, asserting the court did not have his entire submission when it made the November 7 ruling. The court denied the motion on January 9, 2015, stating in the order that defendant "failed to provide copies of documents relied upon on in connection with any application filed in July 2014."
Defendant appeals from the November 7 and 17, 2014 and January 9, 2015 orders. He raises four points on appeal:
I. THE TRIAL COURT ERRED IN ORDERING DEFENDANT TO PAY $804 PER WEEK TOWARDS ARREARS WHEN THERE HAS BEEN NO SHOWING OF ABILITY TO PAY.
II. THE COURT ERRED IN NOT ELIMINATING SPOUSAL SUPPORT FOR THE ENTIRE TIME THAT PLAINTIFF WAS COHABITING.
III. THE COURT ERRED IN REQUIRING DEFENDANT TO MAINTAIN THE ONE MILLION DOLLAR LIFE INSURANCE POLICY TO SECURE ARREARS OF APPROXIMATELY $150,000-$160,000.
IV. THE TRIAL COURT FAILED TO ISSUE FINDINGS OF FACTS AND CONCLUSIONS OF LAW ON THE MOTION FOR RECONSIDERATION.
We defer to the family court's factfinding because of its "special jurisdiction and expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We will uphold the court's findings if they are supported by substantial credible evidence. Id. at 411-12. We review the trial court's legal conclusions de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We begin with defendant's argument that the court abused its discretion by ordering him to continue making an $804 weekly payment towards arrears. Defendant reasons that, because he submitted documents indicating he cannot afford to pay that amount, the court was obliged to make a "finding of ability to pay" before ordering him to continue paying $804 per week.
As defendant consented to the $804 weekly payment in the February 2012 order, he had the burden to demonstrate a change in circumstances warranting modification. See Innes v. Innes, 117 N.J. 496, 504 (1990). In order for the court to evaluate defendant's financial circumstances, he was required to submit a current and prior CIS. R. 5:5-4(a) (requiring the movant to append copies of the current CIS and the CIS filed in connection with the order "sought to be modified"). This rule is not a mere technicality, as a current CIS is essential for the court "to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). "As a necessary and preliminary step to meeting [the burden of showing changed circumstances], a movant is required to submit both a current and a prior CIS." Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010) (citing R. 5:5-4(a)).
As noted, defendant did not append a current CIS to his July 2014 motion to reduce alimony. Without defendant's current CIS, the court lacked the "complete picture" of the parties' finances needed to determine whether defendant met his burden of proving changed circumstances. Gulya, supra, 251 N.J. Super. at 253. His argument that he was not required to submit his own financial information because it was plaintiff's circumstances that had changed has no basis in the Rule. Consequently, the court did not abuse its discretion in denying defendant's motion to reduce alimony. See Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (decision on motion to modify alimony reviewed for abuse of discretion).
For the same reason, we reject defendant's argument that the court should have retroactively terminated alimony to a date prior to August 1, 2014. He contends plaintiff was cohabitating with her new husband from August 2010 to September 2014 (with the exception of a one-year gap in 2012-2013). A supported spouse's cohabitation with another is a changed circumstance that may warrant modification of alimony. Quinn v. Quinn, 225 N.J. 34, 49 (2016). Absent an agreement to terminate alimony upon cohabitation, this is a ground for modification "'only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.'" Ibid. (quoting Gayet v. Gayet, 92 N.J. 149, 153-54 (1983)). The ultimate issue is whether the supported spouse "remains dependent on the former spouse's support." Reese v. Weis, 430 N.J. Super. 552, 571 (App. Div. 2013). Since a motion to terminate alimony because of cohabitation is a motion to modify an alimony obligation, a movant must submit a current and prior CIS, in accordance with Rule 5:5-4(a).
The FJD provides that alimony will terminate on the death or remarriage of either party, but does not identify any other grounds for termination.
As noted, defendant failed to do so. Although he submitted circumstantial evidence of cohabitation beginning earlier than August 2014, the failure to provide essential financial information gave the court an incomplete picture of the parties' finances. Accordingly, the court was well within its discretion to terminate alimony retroactive to August 1, 2014.
Finally, defendant argues the $1 million in life insurance coverage should be reduced because the amount secured (the approximately $170,000 in arrears) is significantly less than the death benefit. We reverse and remand for reconsideration.
It is well-settled that a spouse may be required to obtain life insurance as security for the payment of support or equitable distribution. Jacobitti v. Jacobitti, 135 N.J. 571, 580 (1994) (support); Claffey v. Claffey, 360 N.J. Super. 240, 250, 263 (App. Div. 2003) (equitable distribution); N.J.S.A. 2A:34-25. However, the termination of alimony capped defendant's total obligation to plaintiff. Defendant's obligation to pay equitable distribution was fixed at $10,000 a year through 2014, and his total arrears are roughly $170,000. Regardless of the exact amount of arrears, in no event does his arrears obligation justify security of $1 million.
Although plaintiff contends the life insurance policy is also security for payments due under a prenuptial agreement, the agreement is not included in the record and she has not demonstrated any outstanding obligation that survived the FJD. --------
Although defendant agreed in the FJD to continue to fund the $1 million policy and affirmed that obligation in the 2012 consent order, the termination of alimony is a change in circumstances justifying reevaluation of his obligation. See Schwarz v. Schwarz, 328 N.J. Super. 275, 286-87 (App. Div. 2000) (remanding where the amount of life insurance allegedly exceeded the value of obligor's remaining support obligations); cf. Konczyk v. Konczyk, 367 N.J. Super. 551, 561-63 (Ch. Div. 2003) (supported spouse receiving limited term alimony entitled only to partial death benefit sufficient to cover remaining alimony obligation), aff'd, 367 N.J. Super. 512 (App. Div. 2004). The trial court should determine defendant's total outstanding financial obligation to plaintiff, that the insurance needs to secure. We leave it to the court's discretion to determine whether to allow defendant to obtain a new policy for that amount, or to designate a portion of the death benefit of the existing policy as security for defendant's obligation. In the latter case, defendant would be responsible only for the portion of premium allocable to securing his obligation.
Affirmed in part, reversed and remanded in part. 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