Opinion
DOCKET NO. A-4221-14T3
01-30-2017
LYNDA A. MARUT, Plaintiff-Respondent, v. JOHN F. MARUT, JR., Defendant-Appellant.
August J. Landi, attorney for appellant. Lynda A. Marut, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-39316-89. August J. Landi, attorney for appellant. Lynda A. Marut, respondent pro se. The opinion of the court was delivered by ROTHSTADT, J.A.D.
In this post-judgment dissolution matter, defendant, John F. Marut, Jr., appeals from the Family Part's May 1, 2015 order denying his motion to terminate alimony and vacate arrears, or order a plenary hearing to determine whether his alimony obligation should be terminated. In denying his motion, the court relied upon defendant's and plaintiff, Lynda A. Marut's, 2001 consent order that provided for continuing alimony upon defendant's retirement or plaintiff's cohabitation. On appeal, defendant argues the court erred by enforcing the consent order and by failing to appreciate that "the alimony statute creates a statutory right to revisit alimony following retirement at full age." We affirm.
The material facts are not in dispute and can be summarized as follows. The parties were married in 1970 and divorced pursuant to a final judgment of divorce (FJOD) entered on July 7, 1992. The FJOD incorporated the parties' marital settlement agreement (MSA) as placed on the record that obligated defendant to pay plaintiff $14 00 per week in permanent alimony. The MSA also addressed the termination of alimony upon plaintiff's cohabitation or defendant's retirement. It stated that alimony would be paid until:
such time as . . . Wife's remarriage; Wife's cohabitation with a male unrelated by blood or marriage in avoidance of marriage pursuant to Garlinger and Gayet or Husband's retiring which shall not voluntarily occur before he is age 60. Upon Husband's retirement a new level of support can be set by the parties taking into consideration all of the income from all sources as to both parties. Should the parties be unable to agree on a new level of
support . . . a Motion may be brought without showing any significant change in circumstances other than retirement at age 60 or thereafter.
Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975).
Gayet v. Gayet, 92 N.J. 149 (1980).
In 2000, defendant filed a motion seeking to terminate his alimony based upon allegations that plaintiff was cohabitating. In response to the motion, the court scheduled a plenary hearing for June 29, 2001. On that day, the parties appeared and settled their dispute by entering into a consent order that expressly provided it "resolve[d] all issues between them, including future issues attendant to a review of alimony provided for in the [FJOD] when defendant attains the age of 60." The order then modified various aspects of the parties' MSA. As to alimony, the order reduced the amount payable by defendant from $1400 to $1300 effective January 1, 2002, until January 1, 2003, when it was to be further reduced to $1200, and reduced again to $1000 when defendant reached age sixty. The final reduction was characterized by the parties as "permanent" and payable until either party's death or plaintiff's re-marriage. The order further stated:
It is expressly agreed between the parties that in consideration of the compromise each has made in entering into this consent order, that plaintiff shall not seek upward modification and defendant shall not seek downward modification or termination of alimony for any alleged future change in circumstances, including but not limited to future retirement, disability, reduction in
defendant's earned or unearned income, or the plaintiff's cohabitation with an unrelated party of the opposite sex.
[Emphasis added.]
Throughout the ensuing years, defendant fell into substantial arrears in the payment of his alimony obligation. This resulted in numerous orders enforcing his obligation. In April 2015, after the probation department secured a warrant for defendant, he filed the motion seeking to terminate alimony effective January 2012, when he began to receive social security retirement benefits.
In support of his motion, defendant relied upon the fact that he was sixty-eight years old, of full retirement age, had paid alimony for many years, and plaintiff having cohabitated on a long-term basis with an unrelated male. According to defendant, he was entitled to relief because under the recently amended alimony statute, N.J.S.A. 2A:34-23(j)(3), he established a "good faith retirement age" and the burden shifted to plaintiff to establish why alimony should not be terminated. While his supporting certification addressed the history of the parties' relationship, marriage and divorce, including plaintiff's long-term cohabitation, it did not discuss any change of circumstances since the entry of the 2001 consent order, other than the parties' current ages, their entitlement to collect social security income and allegations defendant made about plaintiff's income and lifestyle. The certification did not mention the 2001 consent order. Plaintiff's opposition, however, relied upon the order as a reason why the court should not grant defendant's motion.
The statute, effective September 10, 2014, states in pertinent part:
j. Alimony may be modified or terminated upon the prospective or actual retirement of the obligor.
. . . .
(3) When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor's reaching full retirement age as defined in this section shall be deemed a good faith retirement age.
[N. J.S.A. 2A:34-23(j)(3).]
Although a copy of the 2001 consent order was attached to defendant's certification.
Judge Kathleen A. Sheedy considered the parties' arguments and issued an order on May 1, 2015, denying defendant's motion. The order incorporated the judge's statement of reasons. As stated by the judge, she denied the motion in accordance with the terms of the 2001 consent order. Judge Sheedy relied upon New Jersey's public policy that favors settlement agreements, noting that they are enforced "to the extent that they are just and equitable." She rejected defendant's contention that the alimony statute barred plaintiff from continuing to receive alimony because the statute "addresses retirement in the context of agreements . . . that are silent on particular issues," and did not impact agreements entered into before its 2014 effective date. The judge found the agreement was reasonable and, therefore, she enforced its provisions by denying defendant's motion. This appeal followed.
"In our review of a Family Part judge's motion order, we defer to factual findings 'supported by adequate, substantial, credible evidence' in the record." Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)); see also Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). "However, when reviewing legal conclusions, our obligation is different; '[t]o the extent that the trial court's decision constitutes a legal determination, we review it de novo.'" Landers, supra, 444 N.J. Super. at 319 (quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)); see also Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013) (stating a statutory interpretation question is a legal issue subject to our plenary review).
We conclude from our review that Judge Sheedy's decision to deny defendant's motion was supported by the record and consistent with applicable legal principles. We find no merit to defendant's contentions and affirm substantially for the reasons expressed by the judge in her thoughtful written decision. We add only the following comments.
N.J.S.A. 2A:34-23(j)(3) provides that achieving "full retirement age" is sufficient to establish "a good faith retirement" where an existing alimony order or agreement is in place prior to September 10, 2014. Contrary to defendant's assertions, it does not create "the rebuttable presumption included in subsection (j)(1) [applicable to orders or agreements entered after the statute's effective date] which places the burden on the obligee to demonstrate continuation of the alimony award once an obligor attains full retirement age." Landers, supra, 444 N.J. Super. at 323. Section "(j)(3) follows the prior principles outlined in [Lepis v. Lepis, 83 N.J. 139 (1980)] and its progeny, by mandating [a court to] determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate." Id. at 324 (citation and internal quotation marks omitted).
As one trial court has explained:
For a pre-September 10, 2014, alimony order, (j)(3) provides that "the obligor's reaching full retirement age as defined in this section shall be deemed a good faith retirement age" with the burden of proof remaining with the payor to demonstrate why alimony should terminate." For a post-September 10, 2014, alimony order, however, (j)(1) provides that "there shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age," with the burden of proof shifting to the recipient to demonstrate why alimony should not terminate.--------
[Mueller v. Mueller, 446 N.J. Super. 582, 588 (Ch. Div. 2016).]
By maintaining the Lepis standard, the statute prevents the evisceration or termination of a previously agreed to provision in an MSA or consent order that specifically contemplated the event claimed to demonstrate a substantial change in circumstances warranting modification. Under Lepis, the presence of an agreement or order addressing the "circumstances alleged as 'changed' . . . ordinarily [prevents] . . . modification." Lepis, supra, 83 N.J. at 153.
Moreover, the Legislative history of the 2014 amendments reflects an express intention to maintain the effectiveness of pre-amendment orders and agreements. Although the 2014 amendment to the statute only states it becomes effective September 10, 2014, its application to provisions of pre-existing orders and agreements is guided by "the bill adopting the alimony amendments [which] adds [a] provision" that declares the new law non-retroactive with respect to certain prior alimony agreements and judicial orders. Spangenberg v. Kolakowski, 442 N.J. Super. 529, 538 (App. Div. 2015). The bill states:
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:
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 (emphasis added).]
"This additional statement signals the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments." Spangenberg, supra, 442 N.J. Super. at 538. The "intent was to prevent the amendments themselves from becoming an independent basis for a party to unilaterally attempt to un-do a contractual agreement on the standard for review, or to obtain a do-over on every alimony case previously decided before the amendments became law." Mills v. Mills, 447 N.J. Super. 78, 95 (Ch. Div. 2016).
Section (j)(3) applies, therefore, to alimony orders or agreements that do not address the impact of retirement, unlike the parties' consent order in this case. See Spangenberg, supra, 442 N.J. Super. at 539. Where, as here, the parties addressed in a consent order the very issue being advanced as a change in circumstances, defendant was required to establish a prima facie case of more than his achieving full retirement age. As the party seeking modification of the consent order, he was required to show that a substantial change in circumstances occurred since the order was entered that warranted its modification. See Lepis, supra, 83 N.J. at 157.
Defendant did not allege any substantial change in circumstances. Judge Sheedy correctly determined that the very changes being argued by defendant — his retirement and plaintiff's cohabitation — had been addressed by the parties in the consent order and that the amendment to the statute did not alter defendant's burden. None of his arguments supported a contrary outcome.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION