Opinion
DOCKET NO. A-4642-13T4
06-05-2015
ANN BESCHLOSS, Plaintiff-Respondent, v. ADAM BESCHLOSS, Defendant-Appellant.
Angela M. Scarfuri argued the cause for appellant (Bressler, Amery & Ross, P.C., attorneys; Ms. Scarfuri and Polina M. Dostalik, on the briefs). Sylvia S. Costantino argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-75-12. Angela M. Scarfuri argued the cause for appellant (Bressler, Amery & Ross, P.C., attorneys; Ms. Scarfuri and Polina M. Dostalik, on the briefs). Sylvia S. Costantino argued the cause for respondent. PER CURIAM
In this post-divorce matrimonial case, defendant appeals from an April 4, 2014 order denying his motion to reduce his support obligations; and a June 4, 2014 order denying reconsideration, awarding plaintiff counsel fees, and granting plaintiff's motion for related relief. We affirm.
I.
The parties were married in 1990, had two sons, and divorced in 2012. As part of the divorce proceedings, the parties entered into a property settlement agreement (the "PSA"), in which defendant agreed to pay child support based on an imputed income of $197,000. At the time they entered into the PSA, defendant had been let go from his job, but was receiving severance pay and anticipated that he would find comparable work in a few months.
Defendant remained out of work for approximately one year. He found new employment and received what he referred to as a "steep cut in salary," going from an annual income of $197,000 to $130,000. Based on his new earnings, defendant maintained that he was unable to "afford [his] current and future support obligations[.]"
As a result, defendant filed a motion to reduce his child support and alimony obligations from $4095 per month to $2048 per month. The judge conducted oral argument, entered the April 2014 order, and rendered written and oral opinions. In denying the motion, the judge determined that defendant failed to show changed circumstances and noted that defendant had entered into the PSA when he was unemployed, agreeing to the imputed income.
Plaintiff cross-moved to compel defendant to maintain life insurance as required by the PSA, sought to hold him in violation of litigant's rights for failing to do so, and she requested counsel fees. Defendant contended that he was "uninsurable" due to a pre-existing medical condition. The judge held defendant in violation of litigant's rights, denied plaintiff's request for counsel fees, and ordered that defendant "apply for no less than [ten] applications for $950,000 of life insurance within [sixty] days[.]"
This condition purportedly existed at the time that the parties entered into the PSA.
Defendant moved for reconsideration, and plaintiff cross-moved, renewing her request for counsel fees. The judge denied reconsideration, but awarded plaintiff counsel fees in the amount of $3,297.50. The judge then entered the June 2014 order and issued another written decision. After defendant filed his notice of appeal, the judge filed an amplification of reasons further supporting the orders under review, especially her reasons for awarding plaintiff counsel fees.
On appeal, defendant argues that the judge erred by (1) proceeding without an evidentiary hearing; (2) holding him in violation of litigant's rights; (3) denying his reconsideration motion on procedural grounds and also without oral argument; (4) granting plaintiff's motion to direct him to set up a trust as security for his support obligation; (5) directing him to contribute towards the parties' orthodontic expense; and (6) awarding fees to plaintiff's counsel.
After careful consideration of the record, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the well-reasoned opinions and amplification of reasons expressed by the judge. We add the following comments.
II.
We see no error as to the judge's denial of defendant's motion for a downward modification of his support obligations. The judge carefully considered defendant's contentions, applied the correct law, and properly rejected defendant's arguments.
A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such findings will only be reversed when they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We "accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
Pursuant to N.J.S.A. 2A:34-23, support payments "may be revised and altered by the court from time to time as circumstances may require." Such a modification will be made only where the movant has demonstrated "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 150 (1980). "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Id. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)).
It is well-established that support orders should be based on an obligor's ability to pay. Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). "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. 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 v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006)). Accordingly,
[t]o vacate a trial court's findings in a proceeding modifying alimony, an appellate court must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or it must otherwise be well satisfied that the finding[s] [were] mistaken, or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole.
[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (alterations in original) (citations and internal quotation marks omitted).]
Defendant maintains that he showed changed circumstances because his income dropped to $130,000 per year. Here, like in Labrig, supra, the judge focused on the short time between the date of defendant's motion and the entry of the PSA. Defendant entered into the PSA in July 2012 and filed his motion for a downward modification on January 29, 2014. Thus, he sought the modification less than twenty months after entering into the PSA.
In Larbig, the court noted that the motion judge "correctly focused on the fact that defendant's motion [for modification] was filed a mere twenty months after the parties' execution of the PSA and the entry of the judgment of divorce." Larbig, supra, 384 N.J. Super. at 22. Based on the short amount of time that had elapsed, "defendant had failed to demonstrate that . . . the change was anything other than temporary." Ibid. (citing Lepis, supra, 83 N.J. at 151).
Nevertheless, defendant argues that he is not voluntarily underemployed and that his diminished earnings are permanent. He contends he made all reasonable efforts to obtain a job at his previous earning level, that a "massive layoff" occurred in his industry in New York City, that he depleted all of his other assets to meet his support obligations, and that his motion for downward modification was made in good faith.
However, the judge rejected defendant's proofs as to his job search, which consisted of a one-page document created by defendant. She indicated that this submission hardly substantiated a "concerted effort to find the same work at comparable pay." We have no reason to disturb the judge's findings in this regard.
III.
Defendant argues next that the judge erred in granting plaintiff's cross motion to provide proof of life insurance in the amount of $950,000. He contends that the maximum amount of life insurance for which he is able to qualify is $250,000, which he currently maintains. He asserts that $950,000 in life insurance is impossible for him to attain "given his disclosed medical condition." Defendant further argues that the April 2014 order directing him to apply for no less than ten additional life insurance applications is unduly burdensome because of the negative effect the applications would have on his insurance rating.
Under Rule 5:7-5(a), "[i]f a person fails to make payments or provide health insurance coverage as directed by an order or judgment," proceedings may be instituted against that person pursuant to Rule 1:10-3. This rule allows "a litigant in any action [to] seek relief by application in the action." R. 1:10-3. Moreover, "[i]n family actions, the court may also grant additional remedies as provided by [Rule] 5:3-7." Ibid. Where a party has violated an order relating to alimony or child support, the court may grant one, all or any combination of the following remedies:
(1) fixing the amount of arrearages and entering a judgment upon which interest accrues; (2) requiring payment of arrearages on a periodic basis; (3) suspension of an occupational license or driver's license consistent with law; (4) economic sanctions; (5) participation by the party in violation of the order in an approved community service program; (6) incarceration, with or without work release; (7) issuance of a warrant to be executed upon the further
violation of the judgment or order; and (8) any other appropriate equitable remedy.
[R. 5:3-7(b).]
Here, defendant did not comply timely with the portion of the April 2014 order directing him to produce ten applications for life insurance with a face amount of $950,000. Nor did he comply with the provisions of the PSA which required him to obtain life insurance in the requisite amount, upon his retaining employment. Paragraphs 5.1 and 5.2 of the PSA govern the amount of life insurance defendant agreed to obtain. Paragraph 5.1 provides, in part, that defendant
shall maintain life insurance in the face amount of $200,000 on his life, naming the children as beneficiary to $100,000 each until emancipation. [Defendant] shall designate [plaintiff] as custodian/guardian of the proceeds during their minority, which shall be utilized for the children's health, education and welfare. [Defendant's] agreement to maintain life insurance is contingent upon his securing employment.Similarly, paragraph 5.2 provides in relevant part that defendant "shall maintain life insurance in the face amount of $750,000 on his life, for the benefit of [plaintiff], until alimony terminates in order to secure his alimony payments."
Defendant maintains that he has been unable to obtain life insurance for greater than $250,000. After obtaining new employment in May 2013, defendant applied for life insurance, purportedly for an amount greater than $250,000, but was rejected. The rejection letter, defendant's only documentation concerning the application, does not verify the amount for which defendant was applying.
The judge determined that "defendant [had] not provided [her with sufficient proof] that he [had] attempted in good faith to obtain the life insurance that is required by the [PSA]." The judge stated that the single letter of denial submitted by defendant does not "establish any due diligence to get life insurance or to prove one's point that he has an illness that will not allow him to obtain life insurance." As a result, she concluded that the single denial was insufficient to demonstrate "a prima facie case that [the life insurance] provision[s] of the [PSA] should be modified."
The April 2014 order directed defendant to "apply for no less than [ten] applications for $950,000 of life insurance within [sixty] days of [the order]." Thereafter, the judge entered the June 2014 order, denying in part plaintiff's motion to hold defendant in violation of litigant's rights for failing to submit the ten applications as required by the April 2014 order. The judge noted that sixty days had not yet passed, "leaving defendant to comply." Given the applicable standards for fashioning relief in family actions, the judge's June 2014 order does not constitute an abuse of discretion.
IV.
Finally, we reject defendant's argument that the trial judge abused her discretion in awarding attorney's fees to plaintiff. Defendant contends that the court "failed to make sufficient findings of fact supporting its decision" to make the award.
"We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). In awarding attorney's fees, a court must "'consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.'" Mani v. Mani, 183 N.J. 70, 93-94 (2005) (quoting N.J.S.A. 2A:34-23).
Similarly, Rule 5:3-5(c) requires courts to consider the following factors in determining whether to award attorney's fees in a divorce proceeding:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both
during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
The judge adequately addressed the issue of counsel fees in both the June 2014 order and her amplified statement of reasons. In the June 2014 order, the judge wrote:
Plaintiff's request for counsel fees is [granted] in the amount of $3,297.50, payable within [sixty] days of this Court Order. It appears that plaintiff's counsel has discounted her billable rate from $400.00 per hour to $275.00, and the [c]ourt [finds] this discounted rate reasonable for family law practitioners in Monmouth County.In her amplified statement of reasons, the judge considered the factors set forth in Rule 5:3-5(c) and confirmed its award of attorney's fees in plaintiff's favor. Thus, the judge followed the controlling legal principles in awarding counsel fees.
($3,267.50 billable hours + $30.00 filing fee = $3,297.50)[.]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION