Opinion
DOCKET NO. A-3556-13T4
11-18-2015
DORIS GOODREAU, f/k/a DORIS CASELLA, Plaintiff-Respondent, v. JOHN CASELLA, Defendant-Appellant.
Eli L. Eytan, attorney for appellant. Doris Goodreau, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-101-10. Eli L. Eytan, attorney for appellant. Doris Goodreau, respondent pro se. PER CURIAM
Defendant appeals from a February 28, 2014 order of the Family Part, granting plaintiff's motion for post-judgment relief in part and denying defendant's cross-motion. We remand.
I.
We discern the following facts from the record. Plaintiff and defendant were divorced on December 14, 2010, after the entry of a final judgment of divorce ("Judgment") following a trial in the Family Part. The trial court ordered, among other things, that the marital residence be listed for sale, that proceeds be paid toward the mortgage and equity line balances and other joint marital debt, and that any remaining net equity be distributed sixty percent to defendant and forty percent to plaintiff. The parties' timeshare was also to be sold and the net proceeds to be equally divided. Defendant retained his beauty salon business and was ordered to pay permanent alimony to plaintiff in the amount of $435 per week, payable through probation, based on his imputed income of $60,255. Annual income of $12,000 was imputed to plaintiff. In addition, defendant was ordered to pay thirty percent of any future commissions, referral fees, wages or 1099 income as additional spousal support.
An amended Judgment was entered on January 7, 2011, incorporating the trial court's decision into the judgment.
The trial judge imputed $19,939 annual social security earnings, and added that to an estimated taxable income of $40,316 from the salon, including imputed tips, for a total income of $60,255.
During the pendency of the sale of the marital home, defendant was responsible for payment of roof expenses and plaintiff was ordered to contribute her share, $185 per week, which temporarily reduced defendant's alimony payments to $250 per week. The marital home was a duplex and defendant resided downstairs while plaintiff resided upstairs.
The duplex was scheduled to be sold sometime in the end of October 2012. On October 29, 2012, however, it was severely damaged by Superstorm Sandy. Plaintiff moved in with family members and defendant lived at the local first aid building for several months before moving to an apartment in 2013. Plaintiff and defendant both applied for rental assistance through the Federal Emergency Management Agency ("FEMA"). Plaintiff asserts the FEMA rental assistance payment of $2800 was directly deposited into her bank account, but the bank reversed the deposit and the money was directed to defendant's bank account without explanation. Defendant did not release the rental assistance funds to plaintiff.
The marital home was sold on December 20, 2012, triggering the defendant's obligation under the Judgment to pay plaintiff the full $435 per week in alimony. Defendant had been paying some bills, such as plaintiff's car and health insurance payments. Defendant helped plaintiff with a rent payment after the entry of the divorce, although he was not required to do so. He also asserts that he gave plaintiff fifty percent of the homeowners' flood insurance proceeds after the storm, although plaintiff was only entitled to forty percent pursuant to the terms of the Judgment.
On September 18 2013, probation initiated an enforcement hearing. Only plaintiff appeared and testified. The trial judge ordered defendant to pay arrears of fifty dollars per week, and further provided that a bench warrant may issue upon a second missed payment. Defendant, however, asserts that he never received notice of the hearing.
In February 2014, plaintiff moved for enforcement of the various provisions of the Judgment and the September 18, 2013 order, including compelling defendant to pay full weekly alimony and lump sum arrears. She sought an order requiring defendant to secure his alimony with a life insurance policy naming plaintiff as beneficiary. Plaintiff also sought reimbursement of the FEMA rental assistance funds and half of the FEMA uninsured property loss recovery, if any. She sought to compel defendant to provide copies of federal and state income tax returns, and to release escrow funds to address the parties' marital credit card debt. In addition, plaintiff sought enforcement of Judgment provisions requiring the sale of the timeshare.
Defendant opposed the motion and asked to be given credits for the items he had paid on plaintiff's behalf, such as car insurance, rent, health insurance, and his overpayment to plaintiff from the homeowners flood insurance. Defendant also sought to vacate the September 18, 2013 order pursuant to Rule 4:50-1, and sought modification of his alimony obligation and other relief.
The Family Part judge ordered defendant to comply with provisions of the Judgment, including making full weekly alimony payments, and pay his arrears within thirty days, by way of a lump sum arrears payment or be subject to a bench warrant. The Family Part judge ordered the release of escrowed funds to be allocated to plaintiff to address defendant's arrears. Additionally, the court ordered defendant to reimburse plaintiff the $2800 FEMA rental assistance and provide proof of funds received from the homeowners insurance and from FEMA as a result of property loss from the storm. The Family Part judge also denied defendant's motion for an order crediting him for payments made on plaintiff's behalf, without prejudice. The court refused to vacate the September 18, 2013 enforcement order as defendant had not submitted a brief pursuant to the requirements of Rule 4:50-1, and refused to modify defendant's spousal support obligation and denied him counsel fees. This appeal followed.
The court did permit a 2007 income tax payment as well as the flood insurance proceeds overpayment to be applied as credit towards defendant's arrears. --------
II.
On appeal, defendant argues that he was entitled to a plenary hearing to address modification of his support obligation as a result of Superstorm Sandy, as well as for a determination of the right to the FEMA rental assistance payment and his entitlement to credits against his support obligation. He also argues that the court's refusal to vacate the September 18, 2013 order, along with the court's decision to award counsel fees to plaintiff, were an abuse of discretion. We disagree.
We review an application to modify alimony under an abuse of discretion standard. Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004) (internal citations omitted). Alimony and support orders may be modified upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 145 (1980). "Changed circumstances" exist in myriad situations, including:
(1) an increase in the cost of living; (2) increase or decrease in the supporting spouse's income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse's loss of a house or apartment; (5) the dependent spouse's cohabitation with another; (6) subsequent employment by the dependent spouse; (7) changes in federal income tax law.The party requesting modification has the burden of making the prima facie showing of changed circumstances. Id. at 157-59. Plenary hearings are only necessary when there are genuine issues of material fact. Id. at 159.
[Id. at 151 (internal citations omitted).]
Defendant asserted that as a result of the storm he lost all of his clothing and personal effects, had little more to live on than his social security checks and, as he indicated in his certification: "My hair salon is really no more than a hobby at this point as I earn minimal monies . . . [t]he little monies I did earn from the hair salon is substantially less as most of my clients have left." However, he also indicated that he has two employees and works "a few mornings each week" and "enjoys being there every day." He acknowledged that he still had his real estate license. He asserts that he made a prima facie showing of changed circumstances and substantially reduced income as a result of the storm and the court should have conducted a plenary hearing.
The court considered all of defendant's submissions and determined that defendant "still worked at the salon, he still ha[d] two employees" and had not demonstrated a decline in his business so permanent or long term as to trigger the need for a plenary hearing. Although defendant may have suffered losses as a result of the storm damage, he has not demonstrated that such losses amount to a need for a modification because he has not established that the effects of the storm have significantly impacted his ability to earn an income. We do not consider the trial judge's decision to deny a plenary hearing to be an abuse of her discretion.
Defendant next asserts that he should be awarded credit against his support arrears for payments that he made to plaintiff that were not contemplated in the Judgment. Specifically, defendant argues that he paid for plaintiff's medical insurance, car insurance and rent payments and is entitled to a set-off, and the parties' credit card debt was a joint obligation that he should not have to bear alone. Defendant argues that the trial court's findings are insufficient to support the court's legal conclusions. We agree in part.
Plaintiff's certification indicates that the parties had agreed to escrow $12,000 from the duplex net proceeds and defendant had until December 2013 to negotiate satisfaction of the remaining credit card debt before the funds would be released to each party. Defendant's certification indicates that plaintiff would not agree to release any funds to satisfy the debt. The Judgment provides, however, that the credit card debt in issue was, and remains, a joint marital obligation.
Accordingly, the judge erred in ordering the release of the escrowed funds at issue to satisfy defendant's arrears obligation. The parties' Judgment specifically provides that both parties are jointly responsible for paying their marital credit card debt after negotiating with creditors to reduce the debt. The Judgment also specifically provides that the parties are to pay the debts with proceeds from the sale of the marital home. In this case, defendant did renegotiate his debts with the creditors involved here, and placed the funds from the sale of the marital home in the escrow account at issue. By ordering the release of these funds without providing for payment of marital debts, the trial court's order would provide plaintiff with a benefit that exceeds that provided by the Judgment. Accordingly, we remand to the trial court for further findings regarding the amount of debt remaining, the amount that the parties still owe on the joint debt, and whether any funds remaining after paying the debts are available to satisfy defendant's arrears.
We do, however, disagree with defendant's contentions in regards to payments he made to his auto and medical insurance carriers. Plaintiff presented evidence that defendant's expenditures on auto and medical insurance were paid through his salon business and that there was no other credible evidence to suggest otherwise. In this respect, the Family Part judge considered the Judgment, plaintiff's and defendant's testimony, and the parties' tax circumstances and noted that any payments that defendant made for plaintiff's expenses resulted in tax deductions. The trial judge also noted that awarding defendant anything beyond the income tax payment that she awarded him would result in a double recovery. Because the trial judge's reasoning in this regard is supported by the evidence in the record, we discern no abuse of discretion.
Defendant also argues that the trial judge abused her discretion by denying defendant relief under Rule 4:50-1, and that the trial judge should be disqualified upon any remand so that the matter is assigned to a new trial judge. We find that these arguments are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Defendant also argues that the trial judge abused her discretion in awarding plaintiff the FEMA rental assistance payment and in modifying the division of duplex proceeds without a plenary hearing. We agree.
The court awarded plaintiff the FEMA rental assistance funds because defendant was staying at the first aid building for free, and thus, according to the trial court, was not entitled to rental assistance. Both parties provide differing accounts regarding the entitlement and distribution of these funds. There remain unresolved factual disputes which should be addressed in a hearing. The same is true with regard to the flood insurance proceeds on the duplex. Although the trial court found that plaintiff should only have been entitled to forty percent of the flood insurance proceeds, the court entered an order indicating plaintiff was entitled to fifty percent of the proceeds. Accordingly, we remand for further clarification as to the distribution of the rental assistance and insurance proceeds.
We also remand on the issue of plaintiff's counsel fee award. As a threshold matter, counsel fees in matrimonial actions are left to the sound discretion of the Family Part. See Williams v. Williams, 59 N.J. 229 (1971). However, trial judges must consider a number of factors in counsel fee determinations, including:
(1) [T]he 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; (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).]
The trial judge noted that she had considered "all of the factors" in ordering defendant to pay plaintiff an award of $4,500. The trial judge, however, did not discuss the factors individually, and did not explain the circumstances motivating her decision to provide such a counsel fee award. We remand for further proceedings so that the trial court can provide a more thorough explanation of how the fee was calculated and the motivating factors behind her decision to impose counsel fees.
Affirmed in part, 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