Opinion
DOCKET NO. A-2841-14T1
04-05-2016
HENRY MANGER, Plaintiff-Respondent, v. LORRAINE MANGER, Defendant-Appellant.
The Hill Firm, attorneys for appellant (Bilal Hill, on the brief). Simon, O'Brien & Knapp, attorneys for respondent (John T. Knapp, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Higbee.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, Morris County, Docket No. FM-14-902-07. The Hill Firm, attorneys for appellant (Bilal Hill, on the brief). Simon, O'Brien & Knapp, attorneys for respondent (John T. Knapp, on the brief). PER CURIUM
Defendant Lorraine Manger appeals from a February 5, 2015 order denying her motion for plaintiff to provide financial discovery and for the court to schedule a plenary hearing to determine whether she is entitled to alimony. For the reasons set forth below, we affirm.
The parties were divorced on May 20, 2008, ending their nearly forty-four year marriage. The Dual Judgment of Divorce (JOD) dissolved the marriage and ordered the parties to resolve all collateral issues through binding arbitration. The JOD further ordered the arbitrator's final award to "be incorporated into a [c]onsent [j]udgment."
The arbitration award denied defendant's request for alimony. Although recognizing plaintiff had earned more money than defendant through most of the marriage operating a hair salon, the judge noted the business commenced during the course of the marriage using capital acquired by the parties during their marriage. The arbitrator did not find the parties' financial circumstances warranted an alimony award. At that time, the respective incomes of plaintiff, age sixty-eight, and defendant, age sixty-seven, were in parity and defendant's accumulated net worth exceeded plaintiff's. The arbitration award also stated plaintiff would retain the hair salon and fixed defendant's marital interest in the business at $650 per week, as a "non-taxable equitable distribution," payable "for so long as [plaintiff] continue[d] to own and operate the entity."
Throughout their marriage, both plaintiff and defendant worked at the hair salon, which at the time of sale was a sole proprietorship. The license had been held in their joint names.
The arbitrator noted "this is a long-term marriage during which [defendant] made financial and non-financial contributions to the advancement of [plaintiff]'s career and business" and provided if "there is a substantial change in either party's financial circumstances, [defendant] is free to make an appropriate application to the [c]ourt for a review of this claim."
After it was issued, defendant moved to vacate and plaintiff cross-moved to confirm the arbitration award. The court denied defendant's motion and granted plaintiff's cross-motion. A January 29, 2010 supplemental JOD incorporated the terms of the arbitration award. Defendant appealed and we affirmed in a published opinion. Manger v. Manger, 417 N.J. Super. 370 (App. Div. 2010).
On September 29, 2014, plaintiff, at age seventy-four, informed defendant he retired and sold the hair salon. As a result, defendant moved to "modify alimony." Her notice of motion requested discovery and scheduling of an evidentiary hearing for her to present information demonstrating a change of circumstances. Defendant's brief certification alleged the sale of the business was a sham transaction and plaintiff wrongly discontinued her weekly "alimony" payments. Plaintiff opposed defendant's motion and filed a cross-motion to confirm the termination of equitable distribution payments as provided in the arbitration award and for contributions toward counsel fees and costs he incurred.
The Family Part judge denied defendant's motion and granted plaintiff's cross-motion, without the benefit of oral argument. See R. 5:5-4 (allowing judicial discretion to dispense with oral argument when advocacy would be unnecessary or unproductive). In the accompanying statement of reasons, the judge found defendant failed to establish a change in financial circumstances warranting an award of alimony. She rejected defendant's claim the business was fraudulently transferred, relying on the numerous documents attached to plaintiff's certification, including brokerage listings, a commission statement, letters from the respective attorneys representing plaintiff and the buyer, the asset purchase agreement, the bill of sale, and other closing documents effectuating the sale. The judge also noted plaintiff was well past "full retirement age" as defined in the recent amendments to N.J.S.A. 2A:34-23(j).
The judge mistakenly cited N.J.S.A. 2A:34-23(j)(1) as governing the burden of proof when reviewing plaintiff's retirement. Because the parties were divorced prior to the effective date of the act, review of the issue is guided by N.J.S.A. 2A:34-23(j)(3). Landers v. Landers, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 2). Nevertheless, the final decision denying defendant's alimony request did not turn on considerations of plaintiff's retirement, making the error harmless. R. 2:10-2.
On appeal, defendant argues the judge erroneously failed to order plaintiff "to file a case information statement," order a plenary hearing, and award plaintiff counsel fees. Defendant's arguments ignore the fundamental flaw that she never received alimony and, as found by the judge, she failed to sustain her burden to prove claims of substantial change in circumstances warranting an alimony award.
A motion seeking modification of alimony requires proof of a substantial change in financial circumstances of the parties. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The Court explained:
An increase in support becomes necessary whenever changed circumstances substantially impair the dependent spouse's ability to maintain the standard of living reflected in the original decree or agreement. Conversely, a decrease is called for when circumstances render all or a portion of support received unnecessary for maintaining that standard.
[Id. at 152-53.]
"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. "[T]he financial condition of the supporting spouse is not relevant to the first step in the Lepis review, in which the movant must show that circumstances have changed for him or her." Crews v. Crews, 164 N.J. 11, 31 (2000). Until this burden is met, the opposing party has no obligation to submit discovery. Id. at 28 ("A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." (quoting Lepis, supra, 83 N.J. at 157)); Donnelly v. Donnelly, 405 N.J. Super. 117, 131 (App. Div. 2009) ("An opponent of a Lepis motion is not required to provide a case information statement or disclose financial information until such time as the movant demonstrates a change in circumstances."); R. 5:5-4(a) ("If the court concludes either that the party seeking relief has demonstrated a prima facie showing of a substantial change of circumstances or that there is other good cause, then the court will order the opposing party to file a copy of a current case information statement.").
Here, defendant failed to assess her financial wherewithal and ability to support herself. Lepis, supra, 83 N.J. at 157 ("When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself."). In fact, her initial moving papers included no information except her conclusory allegations and protest regarding the termination of the weekly equitable distribution payments. Although her reply certification attached documents, such as her current case information statement and tax return, defendant still offers no evidence of her financial claims as required by Rule 1:6-6.
Rule 5:5-4(b) permits a party to file an answer or response to an opposing affidavit. The rules do not permit a party to use the filing of a reply to assert the foundation for the initial motion. Such a practice is unacceptable and inequitable.
We decline to address defendant's specious assertion suggesting the standards defined in Lepis are inapposite because the arbitration award grants defendant the right to request alimony when any financial change occurs, such as the sale of the hair salon. R. 2:11-3(e)(1)(E). Finally, defendant's claims of fraud and suggestion the business sale was not an arm's length transaction amount to nothing more than bald assertions. Her suspicions and distrust are not evidential. Stamberg v. Stamberg, 302 N.J. Super. 35, 43 (App. Div. 1997). We affirm substantially based upon the findings and conclusions by the motion judge. R. 2:11-3(e)(1)(A). Finding defendant failed to sustain her burden of proof obviated the need for further review, including a plenary hearing. Lepis, supra, 83 N.J. at 157. We discern no abuse of the judge's reasoned discretion.
Defendant's brief actually concedes she "may not meet the 'changed circumstances' [requirement] as posited by Lepis."
Defendant's reliance on the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 to -34, is erroneous as there is no support for her estimated value of the business or that the transfer rendered plaintiff unable to satisfy his obligations. Ironically, defendant also characterizes the sale price as "a windfall" to plaintiff. --------
Finally, defendant attacks the award of counsel fees, awarded after the trial judge found defendant acted in bad faith because the unambiguous provisions in the arbitration award did not award her alimony and allow plaintiff to sell the business awarded solely to him at the time of divorce, and also because her allegations were unsubstantiated or false.
In a nutshell, in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.
[Mani v. Mani, 183 N.J. 70, 94-95 (2005).]
Bad faith requires
the action of the party against whom fees are sought must be such as to suggest an improper motive. It implies something more than a showing of a mistaken, unreasonable or frivolous position (although the degree of unreasonableness may be such as to permit an inference as to motive). It requires a party to have malicious motives, to be unfair, to desire to destroy the opposing party, to use the court system improperly to force a concession not otherwise available.When a party acts in bad faith, "fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees." Id. at 307. "[T]he relative economic position of the parties has little relevance" as the purpose of awarding the fees was not the economic disparity between the parties; rather, the intent is to provide protection for the "innocent" party and punishment of the "guilty" party. Ibid.
[Kelly v. Kelly, 262 N.J. Super. 303, 308 (Ch. Div. 1992).]
Following our review, we affirm the motion judge's findings of bad faith. Substantial evidence in the record supporting the conclusion of bad faith include the false claim defendant was receiving alimony, her "bare accusations as to the fraudulent sale of [p]laintiff's business," the failure to address change of circumstances or attach the required prior case information statement demonstrating her economic circumstances at the time of the divorce, impugning plaintiff's right to sell the business clearly permitted by the JOD, asserting a business valuation using stale financial information when more recent information was delineated in the arbitration award, and basing her assertions on inadmissible hearsay statements without producing a certification of the declarant. Deferring to the judge's finding as we must, we reject defendant's claim the award represented an abuse of discretion. Von Pein v. Von Pein, 268 N.J. Super. 7, 20 (App. Div. 1993) (holding the appellate court will not disturb a trial judge's ruling absent an abuse of discretion).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION