Opinion
DOCKET NO. A-2470-14T2
03-02-2016
SAMUEL CHERNIN, Plaintiff-Respondent, v. BETTE CHERNIN, Defendant-Appellant.
Brian P. McCann argued the cause for appellant (Callagy Law, attorneys; Mr. McCann, on the brief). Patrick T. Collins argued the cause for respondent (Franzblau Dratch, attorneys; Mr. Collins, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-26072-90. Brian P. McCann argued the cause for appellant (Callagy Law, attorneys; Mr. McCann, on the brief). Patrick T. Collins argued the cause for respondent (Franzblau Dratch, attorneys; Mr. Collins, on the brief). PER CURIAM
The sole question presented on this appeal is whether plaintiff Samuel Chernin is entitled to an order terminating his alimony obligation under L. 2014, c. 42, § 1, the 2014 amendments to N.J.S.A. 2A:34-23, the alimony statute, based on defendant Bette Chernin's cohabitation, which plaintiff had previously established over the course of a five-day plenary hearing in 1996. Because we conclude the 2014 amendments, by the specific terms of the statute's effective date, are not applicable here, we reverse the trial court's December 19, 2014 order terminating alimony.
There is no dispute over the facts. The parties were married in 1958 and divorced in 1992. In their property settlement agreement incorporated in the judgment of divorce, they agreed plaintiff would pay permanent alimony of $100,000 per year until July 1, 1997, when the payment would increase to $150,000 annually. The agreement also required plaintiff to maintain $800,000 in life insurance payable to defendant for so long as plaintiff's alimony obligation remained.
In 1996, plaintiff moved to terminate his alimony retroactively based on defendant's cohabitation. Following a five-day plenary hearing, Judge Torack granted defendant's motion in part. Finding defendant was cohabiting, the judge ordered defendant to reimburse plaintiff for past overpayments going back to the date of inception of alimony in the sum of $81,200, and reduced plaintiff's ongoing alimony obligation by $12,000 annually.
Plaintiff appealed, contending the court erred in reducing his obligation instead of terminating it in accordance with the test adopted in Gayet v. Gayet, 92 N.J. 149 (1983). Defendant cross-appealed, arguing the court erred in concluding she derived any economic benefit from her cohabitation. She argued her alimony should not have been reduced, and, in any event, should not have been reduced retroactively to the date of inception of the obligation instead of to the date defendant filed his motion.
In an unreported opinion, we rejected plaintiff's argument that his alimony should have been terminated, noting "there was no express language in the parties' property settlement agreement that cohabitation would result in the termination of alimony." Chernin v. Chernin, No. A-4249-96 (App. Div. Feb. 27, 1998) (slip op. at 3). We affirmed the reduction of alimony in accordance with the trial court's judgment of defendant's reduced need based on her cohabitation, but we reversed that part of the order retroactively modifying the obligation beyond the filing date of plaintiff's motion. Id. at 3-4. Plaintiff's petition for certification was denied by the Supreme Court. Chernin v. Chernin, 156 N.J. 381 (1998).
Following the enactment of L. 2014, c. 42, § 1, the 2014 amendments to the alimony statute, plaintiff again moved to be relieved of his alimony obligation on the basis of defendant's cohabitation. Counsel for the parties confirmed at oral argument that with the exception of the new statutory amendments, nothing else has changed in the intervening twenty years. Defendant maintains the same relationship which resulted in the reduction of her alimony, and plaintiff remains gainfully employed and fully capable of paying the alimony.
After hearing argument, the trial court concluded the amendments to the alimony statute constituted changed circumstances. Applying the 2014 amendments to Judge Torack's earlier finding of cohabitation and accepting defendant's representation that her relationship was unchanged, the court entered an order terminating alimony based on defendant's continued cohabitation and that plaintiff, at age seventy-seven, had attained full retirement age and was "therefore presumptively entitled to the requested relief" pursuant to N.J.S.A. 2A:34-23j.
Defendant appeals, contending the trial court erred in failing to give effect to the "anti-retroactivity provision" of L. 2014, c. 42, § 1. We agree.
Because the parties contest only the law that applies to their dispute, and not the facts, our standard of review is de novo. Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013). We are obliged to construe the meaning of the statute here anew and need not defer to any interpretation of the trial court we deem mistaken. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Although acknowledging that the parties were divorced in 1992 and defendant's cohabitation established in a plenary hearing conducted in 1996, resulting in a final order modifying the amount but not the duration of alimony, the trial court applied the 2014 amendments to N.J.S.A. 2A:34-23, specifically subsection n, which provides that "[a]limony may be suspended or terminated if the payee cohabits with another person."
The Legislature, however, included with the 2014 amendments very specific direction regarding the date the legislation would become effective and the judgments, orders, and agreements to which it would not apply.
This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:Reviewing the specific language chosen by the Legislature, we conclude the trial court erred in applying the 2014 amendments to this case. See Diprospero v. Penn, 183 N.J. 477, 492 (2005) (observing "[t]he Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language").
a. a final judgment of divorce or dissolution;
b. a final order that has concluded post-judgment litigation; or
c. any enforceable written agreement between the parties.
[L. 2014, c. 42, § 2.]
The parties were divorced in 1992. Incorporated into their judgment of divorce was a property settlement agreement including a specifically bargained for clause governing the duration and amount of alimony. Plaintiff went to court in 1996 to terminate that obligation based on defendant's cohabitation. Applying the law then in effect, the court modified the amount of alimony but did not alter its duration.
Accordingly, the parties' post-judgment litigation was concluded in 1997 with the entry of a final order for a reduced amount of permanent alimony based on the alimony clause the parties bargained for in their property settlement agreement incorporated in their judgment of divorce, modified by the court in light of defendant's cohabitation in accordance with then-existing law. Because the Legislature has commanded that the 2014 amendments not be construed to modify the duration of alimony ordered or agreed upon, or to modify specifically bargained for contractual provisions incorporated into an enforceable written agreement between the parties, a judgment of divorce, or a final order concluding post-judgment litigation, all of which applied here, the court plainly erred in relying on the amendments to modify the permanent alimony previously ordered in this case. See Spangenberg v. Kolakowski, 442 N.J. Super. 529, 538 (App. Div. 2015) (noting the Legislature's choice of implementing language "signals the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments"); see also Gnall v. Gnall, 222 N.J. 414, 430 n.1 (2015) (noting the 2014 amendment to N.J.S.A. 2A:34-23c "was not applicable" to decision determining soundness of alimony award entered in 2010).
We reject plaintiff's argument that Spangenberg was wrongly decided, and "the anti-retroactivity provision of [the 2014 amendments] . . . applies only with respect to the 'duration of alimony ordered or agreed upon.'" In Spangenberg, we simply accorded the words chosen by the Legislature their ordinary meaning to give effect to legislative intent. See Maeker v. Ross, 219 N.J. 565, 575 (2014). We find Spangenberg's reasoning sound and thus continue to follow it. Even were we to accept plaintiff's understanding that the Legislature intended its "anti-retroactivity provision" to apply only with respect to the duration of an award, the result would be the same. In an order concluding post-judgment litigation arising out of defendant's cohabitation, plaintiff was ordered to continue to pay permanent alimony. The implementing language included in the 2014 amendments expressly notes the act was not to be construed to modify the duration of alimony ordered by the court. We fail to see how the trial court's order terminating plaintiff's permanent alimony obligation based on the 2014 amendments is one not affecting the duration of alimony.
Although we find the language unambiguous in its intent that the 2014 amendments not apply retroactively, we note from the statement appended by the sponsors of Assembly Bill 845, an earlier version of the bill that eventually became law, that the earlier iteration would have permitted "modification of alimony awards existing on the effective date to conform to the provisions of the bill." Statement to Assembly Bill No. 845 (Jan. 16, 2014). That language, which certainly conveys an unmistakable intent that the amendments apply retroactively, was not included in the version finally enacted. We likewise note the Massachusetts "Alimony Reform Law of 2011," which served as a model for the 2014 amendments, has been interpreted by the highest court of Massachusetts not to have been intended to apply retroactively except in accordance with the statute's express terms. See Rodman v. Rodman, 23 N.E.3d 922, 927 (Mass. 2015) (holding that "[t]he sole exception to what is in essence a bar to retroactive application of the substantive provisions of the alimony reform act is set forth in uncodified § 4 (b)," which provides expressly that "the durational limits of alimony awards under the new statute are applicable to 'existing alimony judgments that exceed the durational limits,' and that payment of alimony for a period that extends beyond the statutory limits, 'shall be deemed a material change of circumstance that warrant[s] modification'"); Doktor v. Doktor, 2 3 N.E.3d 917, 919-21 (Mass. 2015) (applying the retirement provisions of the new alimony law prospectively only); Chinn v. Merriot, 23 N.E.3d 929, 935 (Mass. 2015) (applying the retirement and cohabitation provisions of the new alimony law prospectively only). See also Maeker, supra, 219 N.J. at 575 (discussing interpretive guides applied when the legislature has adopted or copied legislation from another jurisdiction). --------
Because the parties agree that plaintiff limited his application to defendant's cohabitation, and counsel for plaintiff advised that plaintiff's age would, at this point, provide no basis for changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980), as plaintiff continues to work and can well afford his alimony obligation, we do not consider the trial court's alternate basis for relief. Plaintiff, of course, remains free to move to modify his alimony obligation upon a showing of changed circumstances. Id. at 146.
Because we conclude the 2014 amendments to the alimony statute are not applicable to this matter, we reverse the trial court's December 19, 2014 order terminating alimony and remand for entry of an order reinstating plaintiff's alimony obligation retroactive to that order on such terms as the court deems equitable and just. We do not retain jurisdiction.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION