Opinion
DOCKET NO. A-6356-11T4
06-26-2014
LUCY E. DIAZ, Plaintiff-Appellant/Cross-Respondent, v. HERMAN O. DIAZ, Defendant-Respondent/Cross-Appellant.
Richard J. Kaplow argued the cause for appellant/cross-respondent. James P. Yudes argued the cause for respondent/cross-appellant (James P. Yudes, P.C., attorneys; Karen T. Willitts, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1511-02.
Richard J. Kaplow argued the cause for appellant/cross-respondent.
James P. Yudes argued the cause for respondent/cross-appellant (James P. Yudes, P.C., attorneys; Karen T. Willitts, on the brief). PER CURIAM
In this post-judgment matrimonial action, plaintiff appeals from the Family Part's orders, finding defendant had established a prima facie showing of plaintiff's cohabitation with her paramour ("W.A."); finding their cohabitation warranted modification of her alimony; retroactively reducing alimony; and denying her motion for reconsideration. Defendant cross-appealed, claiming the court erred by failing to require payment of retroactive alimony in a lump sum; not ordering a further reduction or termination in his alimony obligation based on alleged fraudulent testimony; and denying his motions for counsel fees. We have carefully considered both parties' contentions in light of the record, and we affirm.
Although plaintiff did not include this specific order in her Notice of Appeal, we will address the argument she raised in her appellate brief about the order for the reasons noted infra at III. A.
I.
We summarize the matter's procedural history to identify the various orders under appeal. The orders appealed from arose from plaintiff's September 29, 2008 motion to modify child support and enforce defendant's obligation to contribute to the children's education expenses, and defendant's cross-motion to modify alimony based on plaintiff's alleged cohabitation with W.A. By order dated August 27, 2010, the court determined defendant had made a prima facie showing of cohabitation and ordered a plenary hearing. On August 16, 2011, after the two-day plenary hearing, the court found that plaintiff was cohabiting with W.A., which warranted either modification or termination of alimony. After oral argument on November 29, 2011, the court reduced alimony from $3033 per month to $2000, retroactive to October 31, 2008, the filing date of defendant's cross-motion to modify alimony. On December 2, 2011, the court further reduced plaintiff's alimony by $1000 per month for thirty-eight months until she repaid defendant $39,254, the amount he overpaid since October 31, 2008.
Issues relating to plaintiff's motion are not part of her appeal.
During 2009 and 2010, the parties unsuccessfully attempted to resolve their present dispute through mediation. Afterwards, they engaged in discovery through August 2011.
There was no hearing or oral argument on the motion, nor did the court set forth any findings or conclusions in a written or oral opinion.
On December 17, 2011, plaintiff moved for reconsideration of the court's November 29 and December 2, 2011 orders. Defendant opposed plaintiff's motion and cross-moved for counsel fees. After oral argument on January 13, 2012, the court entered an order denying both motions.
On April 20, 2012, defendant moved to vacate the Family Part's November and December 2011 orders based on newly discovered evidence and for counsel fees. Plaintiff opposed defendant's motion and cross-moved for counsel fees. After considering oral argument on July 12, 2012, the court entered an order on July 20, 2012 denying both motions.
In February 2012, plaintiff filed a notice of appeal (Docket No. A-2693-11) with respect to the court's August 16, November 29, and December 2, 2011, orders. On February 21, 2012, defendant moved for a remand to the lower court based on newly discovered evidence regarding W.A.'s involvement in plaintiff's part-time business. By order dated March 13, 2012, we granted defendant's motion and relinquished jurisdiction.
On August 27, 2012, plaintiff filed a notice of appeal from the court's November 29, December 2, 2011, January 13, 2012 and July 20, 2012 orders. On September 6, 2012, defendant cross-appealed from all of the same court orders.
He cross-appealed from paragraph two of the January 13, 2012, order and paragraph four of the July 20, 2012 order, both of which denied his requests for counsel fees incurred with respect to plaintiff's motion for reconsideration and his motion to vacate the November and December 2011 orders respectively.
II.
The parties married in 1985 and divorced on September 3, 2003. Their dual final judgment of divorce (JOD) incorporated their Property Settlement Agreement (PSA). Two children were born of the parties' eighteen-year marriage: a son, born in 1988, and a daughter, born in 1989.
During the marriage, plaintiff was a full-time, public school physical education and health teacher in Cranford. At the time of the divorce, she earned between $35,000 and $36,000 annually. In 2004, she also began to coach volleyball, earning between $3200 and $3500 annually. As of the plenary hearing in 2011, her salary from teaching and coaching totaled $58,000. She resided in the former marital home and claimed monthly expenses in the amount of $7,000. Defendant, the service manager at an automobile dealership, earned $158,014 annually at the time of the parties' divorce. As of the 2011 plenary hearing, he earned $176,949. After the divorce, he remarried and took up residence with his wife and stepchildren.
Pursuant to the PSA, defendant paid permanent alimony to plaintiff in the monthly amount of $3033. However, "[i]n the event the Plaintiff [co-habited] with an unrelated male in a relationship tantamount to marriage, the Defendant [had] the right to seek a modification or termination of . . . alimony in accordance with New Jersey case law." Based on this provision, defendant filed a motion for an order "[t]erminating [d]efendant's obligation to pay alimony to [p]laintiff due to [p]laintiff's cohabitation with her boyfriend [W.A.]"
In his supporting certification, he stated:
In or about August, 2008 [our son] got his own apartment in Cranford. He wanted to be
on his own and expressed some dissatisfaction living at home with Lucy when her boyfriend [W.A.] was living there too. It seemed that [W.A.] had taken on the role of the man of the house there, and [our son] was not very keen on being disciplined by [W.A.] or having [W.A.] seem to side with his mother and the roles that were changing at home.
. . . .
I . . . ask for a modification in alimony given [plaintiff's] cohabitation with her boyfriend, [W.A.]. Over the last two years, I have noticed that [W.A.] is always at [plaintiff's] house. When I was living in Westfield, I began to notice that his car was constantly at her home. She and [W.A.] have been in a long-term relationship. They vacation together and have gone on several trips to Mexico, Jamaica and spend a week together in the summer at the New Jersey shore. In addition, they spend all holidays together, celebrating as a family. The children have told me that their mother and [W.A.] have been living together for some time. For instance, even when [our daughter] was a senior in high school, she would tell me that she could not get up and go to the bathroom in her underwear or nightgown as she used to do, because [W.A.] was now there and she did not want him to see her like that. This is just one example. The children have told me that he is constantly at [plaintiff's] home and living together. [Our son] has indicated that [W.A.'s] residing with his mother is part of the reason that he did not want to live at home anymore. He has described to me disagreements between himself and his mother and/or [W.A.] where [W.A.] has stepped in. In addition, [W.A.] performs maintenance at [plaintiff's] home, including maintaining the lawn. I complemented [our son] on how beautiful the lawn and
landscaping appear at [plaintiff's] home and for helping his mother out with that. He told me not to complement him but [W.A.] as that was all [W.A.'s] work. Even when I have Googled [plaintiff's] house for a bird's eye view on the Internet, over separate time frames the satellite shows [W.A.'s] car parked at [plaintiff's] house.
In her response to defendant's motions, plaintiff stated:
Your Honor, [W.A.] does NOT live at my home. He is my boyfriend & comes & goes as he pleases. [W.A.] lives at his own residence, paying his own bills, paying his family's bills. He has his own personal expenses to worry about. The fact is that [W.A.] has ZERO IMPACT on my economic conditions. They have not changed. Since the Divorce, the children and I take the same vacations, shop at the same places, live in the same house, in the same ways we have always done. So, referring to Lepis v. Lepis, 83 N.J. 139 (1980), there are no changed circumstances that support the Defendant's allegations. As per Gayet v. Gayet, 92 N.J. 149, 151 (1983), there are no changes in prior dependency because [W.A.] does NOT contribute to my or my children support, nor I his.
At the plenary hearing, both plaintiff and [W.A.] testified about their relationship. They had been dating since 2006, and referred to each other as boyfriend and girlfriend to their friends and family. Plaintiff described her relationship with W.A. as "monogamous" and "committed," and anticipated the relationship continuing "[in]to the future." W.A. "consider[ed] [him]self part of her" family, although they did not intend to marry.
They only separated once, for a month or two in 2009
"[O]n . . . average[,]" W.A. stayed at plaintiff's residence three or four overnights per week, and they spent all holidays with each other. He did not receive any mail there, nor did he have a key; however, he knew the garage access code. He kept some clothing in plaintiff's armoire and closet although there was no dedicated space solely for his use. He never did laundry at plaintiff's residence.
W.A. maintained his own residence in a leased, one-bedroom apartment since separating from his former wife seven years ago. W.A.'s two children reside with his ex-wife, from whom he was obtaining divorce. Plaintiff has spent "[v]ery little" time there.
On the nights W.A. stayed at plaintiff's residence, they sometimes ate dinner together. Occasionally, the couple went grocery shopping for which plaintiff always paid. In anticipation of W.A.'s arrival, plaintiff did not purchase additional food, as she "always overcook[ed]." Although he did not pay plaintiff for food he sometimes brought dinner to share, such as pizza.
Regarding household chores, W.A. did some minor repairs for plaintiff, such as hanging a new screen door, painting a room, mowing her lawn and shoveling snow. The couple gardened together, both describing it as a mutual hobby, and he bought "[p]lants" for the house. Plaintiff could not quantify W.A.'s uncompensated contributions, but, if he did not do them, she would have asked her brother-in-law for assistance.
With respect to plaintiff's relationship with W.A.'s children, she met them "[o]nce" and they never frequented her residence. W.A., however, had contact with plaintiff's children on various occasions, as both lived in their mother's home when not attending college. According to plaintiff, W.A. frequented her son's college baseball games and provided the children with rides to parties when needed. However, he never spent any other time with them outside plaintiff's residence. Nor did he provide them with monetary assistance, except gift cards on birthdays in nominal amounts. Both plaintiff and W.A. described W.A. as "a mentor" to her children. Also, at least weekly, plaintiff, her mother, and W.A. went out to eat dinner (he sometimes paid) and he went with plaintiff to visit her mother for family dinners and holidays, as well as to assist her with household chores.
W.A. also vacationed with plaintiff on a regular basis. Plaintiff routinely rented a house in Lavallette with her children and sister's family for one week during the summer. W.A. usually joined them for at least a few days, sometimes staying "the whole week." While he did not compensate plaintiff for the rental, he purchased incidentals such as food and beer. In addition, plaintiff and W.A. vacationed in Mexico with her daughter and her friends, three or four times. W.A. paid for his own expenses.
W.A. and plaintiff did not share joint bank accounts or investment accounts, nor had they commingled any funds. They also did not give each other money to help with any expenses as reimbursement, or loans or otherwise.
In 2010, plaintiff created Crush Volleyball, LLC (Crush Volleyball), "a [private] middle school volleyball program for girls in Union County." She was the sole owner. In 2011, it realized a profit of $678. W.A. helped "[i]n the beginning" by setting up equipment and distributing advertisement fliers. He received no compensation for his services. While plaintiff testified that W.A. had no interest in the business, W.A. stated he made a one-time contribution of about $300 to $500.
In 2010, the company reported a loss of $4197
Based on the facts adduced at the plenary hearing, the court found that plaintiff and W.A. were in a "committed" and "monogamous" relationship, and that they were cohabitating. Furthermore, from a financial perspective, the court found that W.A., not plaintiff, benefited from the relationship. The fact that he maintained a separate residence was only to facilitate his own visitation with his children. In support of its decision, the court observed that:
[Plaintiff] testified that three to four nights per week, W.A. has been staying overnight at her home[. O]n weekends he [spends time] with his own children.
. . . .
It strains credibility to say that [W.A.] is not cohabitating with [plaintiff] . . . with that degree of integration into her home. You know, it's not like [he] is living out of his suitcase and stays overnight with [plaintiff] once in a while. They are an intermingled couple.
And I had the overwhelming sense . . . there's two factors in the relationship with [W.A.] and [plaintiff] that prevent him from staying over there all the time. And that is that he wants to have a separate relationship with his own children, . . . and, two, they don't want [plaintiff's] alimony to be interrupted. And so . . . they have constructed a relationship of deep love and commitment . . . around the continuation of the support that [defendant] has [been] paying in the form of alimony[.]
The court also relied upon the fact that the couple shared household chores (e.g., painting, gardening, and shoveling snow), spent vacations and holidays together, and ate dinner with plaintiff's mother weekly; and that W.A. mowed the lawn and made minor home repairs, helped with Crush Volleyball, attended her son's baseball games, and was a "mentor" to plaintiff's children. The court additionally noted that although the evidence showed no financial intermingling,
this is a de facto commingling, as evidenced by the contribution to [plaintiff's] business that [W.A.] acknowledged; the fact that he does the lawn, which saves her money. But the real fact is that, [W.A.] doesn't have to make . . . any financial commitment to [plaintiff] because she's fine as long as she collects the $3,000 a month.
The court further found that W.A.'s testimony was "evasive," stating it believed "he was biased in trying to protect [plaintiff's] income stream." Moreover, it found his testimony about the frequency in which he ate dinner at plaintiff's house, "every now and then[,]" not credible as it directly contradicted plaintiff's testimony. Based on the couple's "credibility," the court inferred they had not yet married because W.A. was "in the process of getting divorced."
As a result, the court entered an order reducing plaintiff's alimony retroactive to the filing date of defendant's cross motion. Later, the court further reduced the alimony for thirty-eight months to reimburse defendant for the amount he overpaid since the date of filing.
In April 2012, defendant moved to vacate the orders modifying alimony and awarding retroactive relief, on the basis that plaintiff and W.A. allegedly testified fraudulently at the hearing. Defendant claimed that they failed to disclose that W.A. was a co-owner of plaintiff's business, as evidenced by his being listed as "owner" in an online business directory, the website's host being identified as "W.A." Productions, LLC, and the marital residence telephone number being listed as his telephone number. In opposition, plaintiff denied committing fraud, certifying she was the sole owner of Crush Volleyball, as corroborated by the company's financial documentation and her 2011 income tax return. Plaintiff and W.A. further certified that W.A. "help[ed]" design the website, but it was actually "hosted by Yahoo web hosting." They said W.A.'s name appeared on the website as an advertisement for his business.
III.
A.
Plaintiff contends the court erred in its August 2010 order by determining defendant had made a prima facie showing of cohabitation based on the parties' certifications. We disagree.
As a threshold matter, we note that plaintiff's argument is not properly before us because she failed to include the August, 2010 order in her notice of appeal, R. 2:5-1(f)(3)(A); Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5.1 (2013) ("[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review."), and we could reject plaintiff's argument on that basis. See, e.g., Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider order not listed in notice of appeal), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.) (issue raised in brief but not designated in notice of appeal not properly before court), aff'd o.b., 138 N.J. 41 (1994). However, we choose to exercise our discretion to overlook plaintiff's technical failure and address the merits of her argument because it is related to the orders under review. See N.J. Neurosurgical Assoc., P.A. v. Clarendon Nat'l Ins. Co., 401 N.J. Super. 186, 196 (App. Div. 2008) (earlier order not listed in notice of appeal was before court because argument on order appealed from continued to raise earlier issue).
B.
Our review of a Family Part court's findings are limited. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Likewise, the lower court's findings based upon its determinations of credibility and sense of the case are entitled to deference because "it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988); Cesare, supra, 154 N.J. at 411-12. For that reason, modification of alimony is reviewed for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).
C.
A dependent spouse's cohabitation with another constitutes a change in circumstances that may warrant modification or termination in the supporting spouse's alimony obligation. Gayet v. Gayet, 92 N.J. 149, 154-55 (1983); see also Ozolins v. Ozolins, 308 N.J. Super. 243, 247-48 (App. Div. 1998). Cohabitation requires "stability, permanency and mutual interdependence." Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). To determine the "true nature of the relationship," whether the couple "bears the generic character of a family unit as a relatively permanent household" should be evaluated. Gayet, supra, 92 N.J. at 155 (internal quotation marks and citation omitted). Such evaluation includes:
those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle.
[Konzelman, supra, 158 N.J. at 202.]
A party alleging cohabitation must first establish a prima facie case before proceeding to discovery and a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 157 (1980). The sufficiency of proofs is not particularly burdensome. For example, a prima facie showing of cohabitation is established where a dependent spouse admittedly cohabited four nights a week for a three-and-one-half month period. Gayet, supra, 92 N.J. at 150.
The proofs demonstrated by defendant's certification provided sufficient evidence to justify the court ordering a plenary hearing. Defendant certified he "constantly" saw W.A.'s car at plaintiff's residence for two years, and that the children told him W.A. lived there. The couple vacations together and spends all holidays together. Plaintiff's opposition only stated that W.A. came and went "as he please[d]" and he "paid his own bills" and, therefore, had no impact on her "economic condition." Plaintiff's opposition to the motion did not, therefore, dispute any of the facts certified to by defendant. We are abundantly satisfied that based on the undisputed facts, the judge correctly found that defendant established a prima facie claim of cohabitation. See Lepis, supra, 83 N.J. at 157.
Plaintiff argues that our decision in Pugh v. Pugh, 216 N.J. Super. 421 (App. Div. 1987), is factually similar and supports a a contrary result. However, Pugh did not address whether the supporting spouse established a prima facie case of cohabitation as it was not an issue in that case as it is here. Id. at 423.
IV.
A.
Plaintiff also argues that the court erred by determining a modification in alimony was warranted because "there was no showing that . . . W.A. supports or subsidizes the [p]laintiff under circumstances sufficient to entitle the [d]efendant to relief." Additionally, she contends the court erred by not allowing her to testify about her understanding of the cohabitation clause in the PSA, and whether W.A. contributed to her household expenses. Again, we disagree.
Preliminarily, we again note plaintiff's argument is not properly before us since she failed to include the August 2011 order in her notice of appeal. Nevertheless, we again choose to address her argument for the same reason stated earlier.
According to the PSA, once cohabitation was established, modification or termination of alimony was warranted "in accordance with New Jersey case law" contingent on plaintiff's cohabitation "with an unrelated male in a relationship tantamount to marriage."
"'[A] showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant.'" Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013) (quoting Ozolins, supra, 308 N.J. Super. at 245) (emphasis added). Thus, "when faced with the circumstance of cohabitation of a dependent spouse, the court must focus on the economic relationship of the cohabitants to discern whether one cohabitant 'subsidizes the other.'" Id. at 571 (quoting Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998)).
"Modification of alimony is warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing." Ibid. (citing Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)). As we explained in Garlinger, supra:
[I]f the paramour resides in the wife's home without contributing anything toward the purchase of food or the payment of normal household bills, then there may be a reasonable inference that the wife's alimony is being used, at least in part, for the benefit of the paramour, in which case it could be argued with force that the amount thereof should be modified accordingly.Thus, alimony may be modified upon a showing of cohabitation where either the dependent spouse or the cohabitant supports or subsidizes the other. See Gayet, supra, 92 N.J. Super. at 153-54.
[137 N.J. Super. at 64; accord Konzelman, supra, 158 N.J. at 196; Wertlake v. Wertlake, 137 N.J. Super. 476, 487 (App. Div. 1975).]
Those circumstances exist here. Both W.A. and plaintiff benefited from W.A.'s residing with plaintiff in a marriage-like relationship as demonstrated by plaintiff's subsidization of W.A. by allowing him to live with her but not requiring any financial contribution, and by his myriad of in-kind contributions to help support plaintiff. See Reese, supra, 430 N.J. Super. at 557-58 (whether dependent spouse economically benefits from cohabitation depends not only on "the actual financial assistance resulting from the new relationship, but also . . . other enhancements to the dependent spouse's standard of living that directly result from cohabitation"); Garlinger, supra, 12 9 N.J. Super. at 65 (terminating alimony where paramour and ex-wife lived together in ex-wife's residence for several months, paramour did not pay for room and board, and paramour moved out upon ex-husband's alimony modification motion); Edelman v. Edelman, 124 N.J. Super. 198, 200 (Ch. Div. 1973) (reducing alimony where cohabitant paid "a miniscule payment of room and board[,]" and thus monthly alimony payment "would necessarily inure to the benefit of [the dependent spouse]'s paramour").
Again, we find plaintiff's reliance on our decision in Pugh, supra, 216 N.J. Super. at 424 to be inapposite. There we found that the proofs did not establish the dependent spouse and her cohabitant were "continuously together" or "conduct[ed] themselves as husband and wife," because, in part, we found the alleged cohabitant maintained his own residence where he spent significant time with his child, who was in his custody. Ibid.
We are satisfied that there was substantial credible evidence to support the court's conclusion that modification of alimony was warranted based on plaintiff's cohabitation with W.A. and their economic relationship.
B.
Plaintiff also argues the court erred by precluding her from testifying about her understanding of the cohabitation provision in the PSA. In concluding that plaintiff's proffered testimony was not relevant, the court stated, "The alimony provision is stated clearly in writing. And I'm not going to go around that provision."
Again, our review of this determination is limited. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We are satisfied from our review that the court did not abuse that discretion.
Plaintiff did not claim the cohabitation provision was unfair or inequitable, nor did she challenge the PSA on voluntariness grounds. If she had, inquiry of the parties' understanding of the provision might have been relevant. See Melletz v. Melletz, 271 N.J. Super. 359, 368 (App. Div.), certif. denied, 137 N.J. 307 (1994). Thus, without those claims, the court properly excluded any testimony about plaintiff's understanding of the PSA's alimony provision.
Plaintiff's reliance on our decision in Ozolins, supra, 308 N.J. Super. at 243, does not compel a contrary result. In that case, the trial court terminated the husband's alimony obligation based on the ex-wife's cohabitation with her paramour. Id. at 247. The PSA did not address cohabitation. Id. at 245. We disagreed with the judge's finding that the evidence supported a total rather than partial elimination of alimony. Id. at 247. In so finding, we relied upon the judge's failure to consider that the parties had agreed upon the amount of alimony, remarking that alimony modification may include considering any "trade-offs and equitable distribution." Id. at 249. Those issues do not exist here. Unlike the judge in Ozolins, the judge here considered that the parties agreed to monthly amount of alimony, and he modified it rather than ordering a complete termination of alimony.
C.
Next, plaintiff contends that the court erred by questioning the relevancy of her proposed testimony that was intended to demonstrate she received no financial contribution from W.A. We find this contention to be without merit, R. 2:11-3(e)(1)(e), because the record demonstrates otherwise. We briefly note the following.
This is not a situation where the court refused to assess the cohabitating couple's economic interdependence. See Wertlake, supra, 137 N.J. Super. 487-88 (reversing and remanding because court failed to determine "what effect, if any, the relationship had upon [dependent spouse]'s further need for alimony"). Plaintiff's counsel here stated he intended to ask her about "every one of her substantial financial obligations" and whether W.A. contributed, in order to establish a change in circumstances that warranted maintaining plaintiff's alimony. The court disagreed and limited evidence of plaintiff's financial information to that which was relevant to "what, if anything, she gets or doesn't get from" W.A. Towards that end, it deemed relevant testimony about plaintiff's finances, including her income and her monthly expenses totaling $7000 per month.
The court therefore appropriately exercised its authority to exclude testimony that would have been irrelevant, N.J.R.E. 401, 402; Korostynski v. State, Div. of Gaming Enforcement, 266 N.J. Super. 549, 555 (App. Div. 1993) ("Material facts are those that have some bearing on the claims being advanced."), a "waste of time," or "needless[ly] . . . cumulative." N.J.R.E. 403(b); accord State v. Garfole, 76 N.J. 445, 456-457 (1978) ("[I]t is highly appropriate for a trial judge . . . to weigh in the balance the concern of the law for orderly and efficient administration of the jury process."). However, it permitted the presentation of plaintiff's financial information that was necessary to its ultimate decision.
V.
A.
Plaintiff contends the court also erred by retroactively modifying alimony to October 31, 2008, the date of defendant's cross-motion for modification. She also claims that retroactive relief was inappropriate and punitive given the circumstances of the case, and she argues the court failed to consider the tax consequences of the retroactive reduction. Here again we find plaintiff's arguments without any merit.
Defendant's cross-appeal claims the court erred by failing to order alimony repayment in a lump-sum but withdrew that claim during oral argument.
In modifying alimony from $3033 to $2000 monthly, the court found plaintiff's income had increased from $31,000 in 2002 to about $60,000 in 2010. Defendant's income had also increased from $158,000 in 2002 to about $177,000 in 2010. Based on those amounts and after considering plaintiff's expenses as well as her cohabitation with W.A., the court determined that a one-third reduction in alimony, retroactive to the filing date of defendant's cross-motion, was appropriate based on its "equitable sense that [W.A.] is getting that degree of a benefit from [her] residence" since he seemed to reside there "the majority of [the] time." The court then determined that defendant overpaid alimony by $39,254, and ordered it repaid at a rate of $1,000.00 per month "until her obligation . . . is exhausted."
The court reiterated the same reasoning in response to plaintiff's reconsideration motion.
We review the judge's decision to retroactively modify alimony for abuse of discretion, Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996), because retroactive awards are discretionary and fact-sensitive. Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982). In addition, the same standard of review is applied when considering whether the court erred by denying plaintiff's reconsideration motion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997) (citing Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996)). Applying this standard, we find no abuse here by the Family Part judge.
It is well-established that any modification of alimony may be retroactive to the date of cohabitation. Calcaterra v. Calcaterra, 295 N.J. Super. 498, 404 (App. Div. 1986); Hurley v. Hurley, 230 N.J. Super. 493, 497 (Law Div. 1988). The judge did not impose this earlier date for modification. As a result, we fail to see how the court's ruling was punitive when it could have awarded relief dating back to 2006.
B.
We also are unable to discern the extent of any adverse tax consequences caused by the judge's retroactive alimony award, because our review of the record does not disclose that plaintiff offered any evidence of those consequences when requested by the court to propose a repayment schedule. Instead, plaintiff suggested a $500 monthly credit, without any reference to the purported tax consequences. On plaintiff's motion for reconsideration, the court rejected her argument about the alleged tax consequences of the retroactive alimony award, finding that she "had the use of the money for the last three years" and had three years to satisfy her obligation.
Pursuant to Rule 4:49-2, a party may move for reconsideration of a court's decision, on the grounds that 1) the court relied on "a palpably incorrect or irrational basis," 2) the court failed to consider or "appreciate the significance of probative, competent evidence," or 3) the moving party is presenting "new or additional information . . . which it could not have provided on the first application." Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990)). The moving party must "initially demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage in the actual reconsideration process." D'Atria, supra, 242 N.J. Super. at 401.
"Reconsideration is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice." Cummings, supra, 295 N.J. Super. at 384 (citing D'Atria, supra, 242 N.J. Super. at 401). We therefore review such determinations for abuse of discretion. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).
We fail to see how the court abused its discretion, especially because plaintiff did not provide the court with an evidentiary basis for the hypothetical tax consequences, either in her original argument relating to her alimony's reduction, or in support of her motion for reconsideration. See N.J.S.A. 2A:34-23(c) (stating that "the court shall consider and make specific findings on the evidence" in determining alimony award); Orgler v. Orgler, 237 N.J. Super. 342, 355 (App. Div. 1989).
C.
Plaintiff also argues the court erred by failing to make specific findings of fact and conclusions of law to support its determination that retroactive alimony should be repaid at the monthly rate of $1000, leaving her with two-thirds less in alimony ($1000 per month). We, however, are satisfied that the judge's decision was well supported by the record regardless of any deficiency in his findings.
In altering an alimony obligation, the court "must consider . . . what is equitable and fair in all the circumstances." Donnelly v. Donnelly, 405 N.J. Super. 117, 130 (App. Div. 2009). "This requires not only an examination of the parties' earnings but also how they have expended their income and utilized their assets." Ibid.
While the judge did not expressly consider the statutory factors at N.J.S.A. 2A:34-23(b) when he determined a payment schedule for the retroactive alimony award, the record indicates he was guided by those factors, as demonstrated by his review of the parties' case information statements and plaintiff's testimony about her monthly expenses and annual salary. While we do not condone the judge's conclusory statements, see R. 1:7-4(a); Curtis v. Finneran, 83 N.J. 563, 570 (1980), and we may agree that the judge's findings were not "a paradigm of the findings required by R.1:7-4," Lord v. Colliano, 354 N.J. Super. 212, 220 (App. Div. 2002) we are satisfied that they were well supported by its record.
VI.
A.
On cross-appeal, defendant contends the court erred by failing to vacate its November and December 2011 orders and further reduce or terminate alimony based on plaintiff's and W.A.'s alleged fraudulent testimony about the extent of his involvement in Crush Volleyball. We disagree.
Without conducting a plenary hearing, the court denied defendant's motion, finding the alleged fraud, that W.A. "failed to mention that he helped set up the website . . . for reasons of convenience listed himself as the owner, even though he listed [plaintiff's] phone number on the website as the Crush Volleyball's contact number[,]" was not material to its decision to modify alimony and award retroactive relief. Moreover, the court found that Crush Volleyball was "an extremely small business[,]" netting $678 in profits in 2010.
Upon a proper motion, a trial court sitting without a jury may open a judgment, take additional testimony, and amend findings of fact and conclusions of law. R. 4:49-1(a). A judgment may be vacated due to "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49" and "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party[.]" R. 4:50-1(b), (c). "A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied[,]" and "[t]he decision granting or denying an application . . . will be left undisturbed unless it represents a clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) (citations omitted).
To vacate a judgment based on fraud, a party must demonstrate by clear and convincing evidence that the conduct was willfully false, material to the issue, and that the falsity could not have been discovered by reasonable diligence. See Shammas v. Shammas, 9 N.J. 321, 330 (1952); Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366 (App. Div. 1964). Moreover, a movant is entitled to a plenary hearing where he or she clearly demonstrates the existence of a genuine issue of material fact entitling the party to relief. Lepis, supra, 83 N.J. at 159; Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968).
Here, the testimony on the initial application to modify alimony established W.A. contributed $300 to $500 to Crush Volleyball, helped with initial equipment set-up, distributed advertisement fliers, and attended some games. W.A.'s further involvement in the business, which included website creation and advertisement, was not material to the judgment modifying alimony because the court's decision hinged upon his cohabitation with plaintiff without contributing towards the expenses.
B.
Defendant also contends the court erred by failing to award him counsel fees with respect to plaintiff's reconsideration motion and his motion to vacate the November and December 2011 orders. Again, we disagree.
The portion of defendant's argument challenging the court's denial of counsel fees with respect to plaintiff's reconsideration motion is not properly before us since he failed to list the January 2012 order in the notice of appeal. R. 2:5-1(f)(3)(A); Pressler & Verniero, supra, comment 6.1 on R. 2:5-1.
--------
In denying defendant's request for counsel fees on plaintiff's reconsideration motion, the court made findings and considered each of the nine factors enumerated in Rule 5:3-5(c). Specifically, the court found that plaintiff's motion was not made in bad faith, as "it was a long hard matter that wasn't able to be resolved." While also acknowledging that plaintiff's reconsideration motion did not present "anything new[,]" the court was "hopeful that this may cause both parties to put this . . . issue behind them."
Likewise, in denying defendant's request for fees incurred with respect to his motion to vacate, the court made relevant findings in accordance with applicable law. Regarding the reasonableness and good faith of the positions advanced by the parties, the court found no bad faith, further stating that neither plaintiff's pending appeal nor defendant's motion to vacate had much merit.
A judge's determination of fees should only be overturned "on the 'rarest occasion,'" and only for a "clear abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)).
In awarding fees, courts should consider the following factors:
(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.
[R. 5:3-5(c); see also Williams v. Williams, 59 N.J. 229, 233 (1971).]
"[I]n matrimonial matters, bad faith conduct must be defined to include those actions specifically designed or calculated to evade, without just cause, the lawful payment of such alimony, maintenance and support." Borzillo v. Borzillo, 259 N.J. Super. 286, 293 (Ch. Div. 1992).
"Bad faith" is defined as:
the opposite of 'good faith', generally implying or involving actual or constructive fraud or a design to mislead or deceive another or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.As we said in Borzillo, supra, "[e]vidence of bad faith can . . . be established, shown or corroborated by . . . the intentional misrepresentation of facts or law designed or intended to discharge or unfairly or improperly limit equitable distribution or alimony, maintenance or support obligations." Borzillo, supra,259 N.J. Super. 293-94.
[Kelly v. Kelly, 262 N.J. Super. 303, 308 (Ch. Div. 1992) (quoting Black's Law Dictionary, 4th ed. 1968).]
Defendant claims the court erred by failing to find that plaintiff's reconsideration motion was "frivolous and filed in bad faith." Even if plaintiff's motion advocated a frivolous position, a counsel fee award on that basis would have been improper since bad faith requires evidence that a party had malicious motives, was unfair, desired to destroy the opposing party, or improperly used the court system to force a concession that was not otherwise available. Kelly, supra, 262 N.J. Super. at 308. None of those circumstances existed here. In this case, the court did not abuse its discretion by denying defendant's motions for counsel fees because it carefully considered each of the factors enumerated in Rule 5:3-5(c) and made sufficient findings, all of which were supported by the record.
Defendant argues that his claim for counsel fees for his motion to vacate was warranted because plaintiff's testimony lacked candor with respect to W.A.'s financial involvement in her business. Although the testimony at the plenary hearing did not reveal that W.A. helped with the business's website design, it established his intimate involvement with the business, as the court found plaintiff and W.A. acted as "business partners." However, the record does not demonstrate that plaintiff intentionally misrepresented the extent of W.A.'s financial involvement in the business, as nothing demonstrated W.A. received monetary compensation for his contributions.
Affirmed.