Opinion
DOCKET NO. A-5715-13T3
06-28-2016
STEVEN PONZETTO, Plaintiff-Respondent, v. ROBIN BARBETTI, Defendant-Appellant.
Robert J. O'Donnell argued the cause for appellant. Ted M. Rosenberg argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter.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, Cumberland County, Docket No. FM-06-281-09. Robert J. O'Donnell argued the cause for appellant. Ted M. Rosenberg argued the cause for respondent. PER CURIAM
Defendant Robin Barbetti appeals from two post-judgment orders terminating her permanent alimony. Because the orders cannot be justified in these circumstances as either a discovery sanction or on the basis of proven changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980), we reverse.
The parties' nineteen-year marriage ended in a contentious divorce when both were in their late forties. There were no children born of the marriage. The only issues were equitable distribution and alimony, both of which were litigated over the course of a lengthy trial.
In a comprehensive written opinion issued in September 2011 following trial, Judge Mendez concluded that the parties' business, which plaintiff founded as a teenager and for which defendant kept the books, had highly valuable assets and had proved quite lucrative over the course of their marriage, at one point generating revenue of over $500,000 a year. Nevertheless, the business, which provides sound systems for concerts and other entertainment events, had suffered in the economic downturn. At the time of the divorce, the judge found it nowhere near supported what he characterized as the parties' "artificial lifestyle," marked by "their irresponsible spending and outlandish behavior, whether going on expensive vacations to South America and Europe, or purchasing fancy cars."
The judge awarded the parties' residence, which also housed their business and was without equity, to plaintiff and ordered him to assume the mortgages encumbering the property. Plaintiff also received the parties' two Ferraris, the Harley Davidson, the Pontiac Fiero and one of the Hummers. Defendant was awarded the other Hummer and approximately $124,000, less $15,000 in credits, representing her fifty percent share of the business. Plaintiff, however, was only required to provide $25,000 of the $109,000 to which defendant was entitled in a lump sum. The court allowed plaintiff to pay out the remaining $84,000, without interest, at a rate of $7 00 per month over ten years.
Describing defendant's alimony as "one of the most contentious issues presented to the Court," Judge Mendez devoted almost a third of his comprehensive opinion to that topic. After a thorough analysis of all of the statutory factors for the establishment of alimony, N.J.S.A. 2A:34-23, the judge determined that defendant was entitled to permanent alimony of $400 per week.
Central to Judge Mendez's calculation was that defendant, although she had obtained a two-year degree in interior design prior to the marriage, a degree in accounting in the 1990s and had maintained the books for the parties' business, had not held outside employment for nearly twenty years. The judge also found defendant had significant and recurring health problems. Taking into account defendant's background, her time out of the workforce, her recurring medical issues and the job market, the judge imputed income to her of $40,000, finding "she has the ability to earn that income as an accountant, bookkeeper, or utilizing her degree in interior design."
Although defendant herself estimated that she would need two years to take one or two CPA courses, complete an internship and sit for the CPA exam, the judge found that overly optimistic. Instead, it was "the Court's view that given [defendant's] medical condition and minimal experience working outside of the parties' business, [she] would likely need more than a two year period to . . . reach a level of self-sufficiency." The judge, however, noted his expectation that defendant would "make a good faith effort to obtain employment."
The judge refused to use the marital standard of living established by the parties in the "two or three years prior to separation" for calculating defendant's alimony, calling it "artificial and excessive." Instead, the judge, as he termed it, "kindly" utilized the marital lifestyle for the parties during the first thirteen years of their marriage, which he pegged at $14,500 per month. The judge noted in support of his finding that plaintiff's own 2009 case information statement (CIS) listed monthly expenses of $14,000.
The judge rejected defendant's request that the court impute income of $196,000 annually to plaintiff on the basis of the business revenues, finding that figure failed to "factor[] the substantial liabilities owed by the parties" that plaintiff would be assuming post-divorce. After scrutinizing plaintiff's tax returns, the judge was satisfied he earned $110,000 a year from the business. Judge Mendez concluded that plaintiff's business generated substantial revenues "sufficient to pay for all his expenses" and the $400 per week in permanent alimony the court awarded to defendant.
The judge also ordered plaintiff to maintain the $1,000,000 life insurance policy then in effect until he had succeeded in refinancing the mortgages on the real property. Thereafter, he would be allowed to reduce the policy to $500,000 pending further order of the court or agreement of the parties.
The entry of the judgment did not, unfortunately, end the litigation. We limit our discussion of the parties continued hostilities to those post-judgment motions directly relevant to this appeal.
Following defendant's successful motion to find plaintiff in violation of litigant's rights for failure to pay credit card balances and to bring his arrearages in her equitable distribution and alimony current, plaintiff moved to have the court reconsider the award of alimony. He also claimed the court should eliminate future alimony on the basis of her alleged cohabitation.
A different judge heard plaintiff's motion and denied any reconsideration of the alimony Judge Mendez awarded in the divorce, noting plaintiff had not taken an appeal. The second judge found, however, that plaintiff had established a prima facie case of cohabitation by defendant. The second judge thus permitted discovery and scheduled a plenary hearing for April 2013, at which defendant would bear the burden of proving that her apparent cohabitation had not resulted in changed circumstances.
The parties appeared at the hearing representing themselves. Defendant testified to her relationship with the man she was seeing and answered all of the court's questions. She also claimed plaintiff's counsel had already thoroughly explored this same relationship during their divorce trial.
Although plaintiff said he was ready to proceed at the start of the hearing, he complained in his case that defendant had only provided him the first page of her bank statements and only a year-end summary of her credit cards, impeding his cross-examination.
Defendant maintained she provided plaintiff with the critical aspect of her bank statements, the pages showing that the only deposits into her account were his alimony and equitable distribution payments, thus refuting his claims that she was being supported by someone else. She also contended her year-end credit card statements allowed him to see the extent of her expenditures, which did not suggest any other sources of income. Defendant complained about having to provide plaintiff with any further detailed information, because she claimed he had improperly accessed and disseminated her personal health information.
Plaintiff did not deny he had accessed her health information. Instead, he claimed he had his current wife find out about defendant's health from their health insurer "because the Defendant never submitted any sworn medical testimony" in the divorce trial in which he was ordered to maintain the cost of defendant's health insurance. As plaintiff explained, "[s]o I felt that we had the need to find out what her medical conditions were. If I'm forced to pay for it, I have every right to find out what I'm paying for."
Defendant countered that plaintiff was well aware she was facing her fourth cancer-related surgery at the time of the parties' divorce.
The second judge found defendant had testified credibly that she had not comingled her finances with the man she was seeing and had carried her burden of establishing that cohabitation had not wrought a change in circumstances. Specifically, although finding that defendant and her boyfriend shared a dating relationship, the judge stated he did
not find that there is an intimate relationship with the couple undertaking duties and privileges that are commonly associated with marriage. The Court does not find that their finances are intertwined, that they share joint bank accounts, or that they share any household expenses.The second judge accordingly denied plaintiff's motion to modify his alimony.
In light of plaintiff's assertion that he had not received complete discovery, however, the denial of his motion was without prejudice, and the judge ordered defendant to provide plaintiff with her complete bank records and credit card statements from the entry of the divorce through March 2013 by June 30, 2013. The second judge also permitted the deposition of defendant's boyfriend. The judge ordered that should plaintiff as a result of the production of those limited documents
discover[] information that he believes to be probative as to the sole issue of whether Defendant is receiving any of the above [benefit of intertwined finances, joint bank accounts or shared household expenses] in her relationship with [her boyfriend], Plaintiff may file an application to have his alimony obligation reconsidered.
The following January 2014, plaintiff moved, through an attorney, for an order: enforcing litigant's rights; holding defendant in contempt for her willful failure to abide by the second judge's post-hearing discovery order; suspending her alimony; requiring her to produce outstanding discovery; requiring her to produce copies of her tax returns for 2010 through 2012; requiring her to set forth her year-to-date income from all sources through September 30, 2013; requiring her to "produce a statement of expenses that she has incurred for the year 2013 consistent with Schedule A, Schedule B, and Schedule C expenses on a [CIS] and provide proof of payment of these expenses for cancelled checks, receipts, vouchers or credit cards"; and for counsel fees and costs.
The motion was heard by a third judge in January 2014. Although denying plaintiff's motion to hold defendant in contempt because he found "[t]he parties are diametrically opposed in terms of their positions regarding compliance with the [second judge's post-hearing] order," and acknowledging that in order to hold defendant in contempt, "the Court would need to hold a plenary hearing . . . to see if what was ordered in the last plenary hearing was completed," the judge nevertheless granted plaintiff's request for enforcement of litigant's rights. Further, in order "to alleviate the parties' dispute," the judge ordered defendant to "provide and possibly 're-provide' all this information to Plaintiff," and suspended her alimony until she did so.
Specifically, in the order of January 17, 2014, he ordered that "[p]laintiff['s] alimony [obligation] shall continue to be paid, but not disbursed until said information is provided to him." In addition to ordering defendant to resupply the bank statements and credit card statements the second judge had ordered, the third judge also required defendant to produce: 1) complete federal and State tax returns with attachments for the years 2010 through 2012; 2) complete record or statements or check stub proof of all year-to-date income for 2013; and 3) a complete CIS, because he deemed such requests "reasonable." Although the second judge had not ordered production of defendant's tax returns, the third judge nevertheless suspended defendant's receipt of her alimony until she provided plaintiff the returns. The income information and CIS were to be provided "immediately." The court did, however, deny plaintiff's request that defendant provide proof of payment of all the expenses listed on her CIS, as he found that request "does border on 'harassment.'"
Approximately two months later, plaintiff filed another motion seeking to hold defendant in contempt and terminate her alimony. Although acknowledging that defendant had provided him with all of the bank statements and credit card information ordered by the second judge, as well as her tax returns, he asserted defendant had not provided her complete income for 2013 and had not provided her CIS as she had been ordered in January 2014.
The motion was supported by a lengthy certification from plaintiff. In it, he offered no proof of cohabitation, the "sole issue" for which the court had allowed limited discovery following the plenary hearing. Instead, plaintiff attached an analysis performed by a CPA from the "voluminous" documents defendant had turned over to him showing that she was living on approximately $32,000 a year. Because that figure would represent the after-tax income of someone earning $40,000, the sum Judge Mendez had imputed to defendant, plaintiff argued defendant had no need for alimony. He claimed "[t]here is no reason when my former wife has the capacity to earn $40,000 and does not spend that much that I should be required to pay $20,800 per year or $400 per week for alimony."
Still appearing pro se, defendant countered with a certification that she had produced everything to plaintiff but a CIS. She claimed that while she had turned over all of her financial records, she had delayed preparing her CIS while she sought counsel — whom she could not ultimately afford to retain given the suspension of her alimony. As to her 2013 income, defendant claimed she had nothing to produce, as her only income had been her alimony and equitable distribution payments. In light of the proofs as to her income and expenditures already provided, defendant asked the court to waive production of her CIS. She also noted plaintiff had failed to advise the Probation Department to reinstate her alimony payments after receiving all of her credit card statements, bank records and tax returns and asked the court to do so in light of her compliance with its order. She further noted plaintiff, after receiving the information he demanded, failed to depose her boyfriend, which plaintiff was to do within thirty days of receiving the documents.
Plaintiff filed a reply certification acknowledging he had not contacted Probation to reinstate defendant's alimony after receiving the bank and credit card statements and the tax returns, because it was his "belief that the Court's intent was to require her to produce complete bank statements, complete credit card statements and complete federal and state tax returns together with her year-to-date income and a CIS" to him before he deposed defendant's boyfriend. Although previously certifying that the only things outstanding were defendant's 2013 income and her CIS, and having himself attached a copy of defendant's 2012 tax return, plaintiff now claimed he "ha[d] not received copies of the tax returns certified to be true and accurate."
The January 17, 2014 order states clearly that "[u]pon receipt of the items listed as 1 to 3 above, [(1) bank statements, (2) credit card statements and (3) 2010-2012 federal and state tax returns], the deposition of [defendant's boyfriend] shall be completed within thirty days." We cannot help noting that had plaintiff complied with the court's order or had the court required him to do so before granting him relief for defendant's non-compliance, it is possible most of what has followed could have been avoided.
He further certified he had not arranged for the boyfriend's deposition because "[w]ithout . . . year-to-date income for 2013 and her CIS for 2013 and to be able to certify the accuracy of her tax returns, it is impossible to take an effective deposition on a co-habitation issue." Finally, plaintiff insisted defendant's CIS was necessary as "[she was] never going to allow the truth to come out about her income and expenses," and reminded the court that defendant had an accounting degree and did not need a lawyer to assist her in completing a CIS.
On the return date, defendant appeared again without counsel but with a completed CIS. She raised the same issues she raised since plaintiff first filed his cohabitation motion, that is, that plaintiff had explored her relationship with her boyfriend during the divorce trial, and that the documents she provided made clear she was not cohabiting and subsisted on only her alimony and equitable distribution payout.
After hearing argument, the third judge "suspended" her alimony indefinitely in the order of May 2, 2014. Although expressly finding that defendant had produced her bank records, credit card statements and tax returns, the court did not direct reinstatement of her alimony as contemplated in the January 17 order. Instead, the May 2 order recited, erroneously, that the January 17 order required defendant to produce those documents as well as her 2013 income and a completed CIS before her alimony would be disbursed to her.
To the extent there was confusion over the order, it is likely attributable to the order being sixteen pages long and including the positions of both parties, their arguments on the motion and the court's rationale, in addition to the actual terms of the order itself. The actual terms of the January 17 order are spread across pages nine to sixteen, with the same relief addressed more than once. An order limited to the court's directives, whether the findings and conclusions were written or oral, the date on which they were rendered and whether the motion was opposed, along with an appended statement of reasons, all as contemplated by Rule 1:6-2(f), could avoid such problems.
Finding that defendant "had an opportunity to provide information as specifically ordered by the Court" but "did not attempt to provide the information sought until the day of the hearing," the judge determined that alimony would be "suspended" effective as of January 17, 2014. The judge explained his reasons as follows:
Under Lepis v. Lepis, 83 N.J. 139 (1980), the party seeking a modification of alimony has the burden to show a "substantial change in circumstance." Plaintiff Steven has not shown a substantial change in circumstance here. The Court does not have a CIS from Defendant Robin. The Court finds that Defendant Robin had been given ample opportunity to provide her income information and her attempts to provide the income information during the hearing, and without notice to the other party, is completely inadequate in regard to the Court Rules. The Court, hereby suspends alimony, effective immediately. It is clear that on the limited information provided by Defendant Robin, there is no need for alimony at this time. To show this need, Defendant Robin would be required to provide all of the information sought by Plaintiff Steven's counsel in order to convince this court or some other court [of] a need for alimony. Defendant Robin was given the opportunity to provide the information so that Plaintiff Steven could appropriately depose [Defendant's boyfriend]. This information was not provided. Therefore alimony is suspended now and into the future until further order of the Court. . . . The monies currently being held to the benefit of Defendant Robin should be returned to Plaintiff Steven at this time.The judge granted plaintiff's request to terminate his life insurance policy to ensure alimony and awarded plaintiff attorneys fees of $1000 on the motion.
During argument on the motion, the judge repeatedly told defendant that she "was severely handicapping [herself] when you're . . . here without counsel." In response, she protested that she could not afford counsel. The court ended the colloquy saying, "let's just end this at this point. Because — because it — it has to be ended, and you're going to have to be put in a position where you're going to have to hire counsel."
After ruling, however, the judge specifically advised defendant that she might be able to restore her alimony by providing the information required on a motion for reconsideration. "It's not saying that some attorney may not make an application on your behalf in the future, ma'am. And you are totally handicapping yourself by not having an attorney here."
Defendant thereafter hired counsel who filed a motion for reconsideration, supported by a fully completed CIS and a certified true copy of her 2013 tax return showing her alimony as her only income. After having inveighed defendant to retain counsel and file a motion for reconsideration, the judge denied defendant's motion in an order dated June 27, 2014, except to reinstate plaintiff's life insurance obligation in the reduced sum of $90,000 in consideration of outstanding equitable distribution.
Analyzing the factors of N.J.S.A. 2A:34-23, in order to "provide a more detailed explanation as to why the Court terminated [defendant's] alimony, life insurance, and required that she pay counsel fees," the third judge concluded that defendant "was not able to provide proof of a need for spousal support due to her failure to provide a CIS, after having been requested by this Court multiple times to do so." Although acknowledging the parties were married nearly twenty years before being divorced and that duration of the marriage is an important factor, the judge found its weight "diminished" when considered against "the refusal of Defendant Robin, who possesses an accounting degree, to provide basic documentation pursuant to court rules."
The judge found defendant was choosing not to work, even though she had the capacity to earn income, which he found "inures towards the argument of Plaintiff Steven that she is receiving assistance from her current 'significant other,'" although noting "the court cannot find the same on the documentation filed." The judge dismissed defendant's history of what Judge Mendez termed "recurring health problems," noting that while plaintiff claims to have recurring health problems, "[t]here is no documentation provided that show[s] any conclusive evidence" of such.
The judge noted that the parties' $14,500 per month lifestyle was "artificial and excessive," and deemed several items of defendant's $2496 monthly budget to be unnecessary, such as $250 for fuel and oil for the 2006 Hummer she received in equitable distribution, $200 in counsel fees (notwithstanding the $3000 retainer she paid to her lawyer for the motion), $150 for entertainment and vacations and $50 in gifts. The judge concluded that
The judge appears to have adopted the position plaintiff took in the trial court on this point, which is clearly in error and at odds with Judge Mendez's decision. A review of that decision makes plain that Judge Mendez acceded to plaintiff's request not to use "the parties' irresponsible spending from 2006 through 2008 in determining marital lifestyle" and instead determined to "kindly" utilize the marital lifestyle from 1990 through 2006, which Judge Mendez determined to be $14,500 per month.
[e]ven assuming that all of the arguably inflated expenses of Defendant Robin are true, she still does not show a current need for spousal support over and above that amount of income the court has imputed to her. She can maintain the appropriate standard of living determined on the income she should be earning.This appeal followed.
A review of this record makes obvious that the order terminating defendant's alimony cannot stand. This was a cohabitation motion that went seriously awry following a plenary hearing in which the second judge made explicit that he did not find cohabitation.
Although the second judge was satisfied based on the proofs that defendant did not share bank accounts or household expenses and had not otherwise intertwined her finances with her boyfriend's, plaintiff complained he had only received the record of defendant's bank deposits and withdrawals and a year-end summary of her credit card activity. Although that information did not point to any evidence of cohabitation and plaintiff had no other, he argued that the complete records might reveal the evidence he lacked. The second judge accordingly accommodated those concerns by making his denial of the motion without prejudice to plaintiff's review of those specific documents and allowing the deposition of defendant's boyfriend.
The third judge overlooked the limited relief plaintiff had been afforded following the plenary hearing on his motion. Moreover, the judge acknowledged the dispute over whether the documents ordered by the second judge following the plenary hearing had or had not been produced, and yet found defendant in violation of litigant's rights and suspended her alimony until she "provide[d] and possibly 're-provide[d]' all this information to Plaintiff."
It is, of course, axiomatic that one cannot be found in violation of litigant's rights absent a finding that one has violated a court order. See Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App. Div. 2012). As the third judge expressly noted his inability to make such a finding on the conflicting certifications of the parties on the January 2014 motion, the judge's use of the coercive relief of suspending defendant's alimony under Rule 1:10-3 pending her compliance, was an abuse of discretion. See In re Adoption of N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 18 (2015) (noting "punitive or coercive relief under the Rule cannot be used against one who is not a willful violator of a judgment"). The judge should also not have withheld defendant's alimony pending her production of documents she had never previously been ordered to produce, as was the case with the tax returns.
Even after defendant produced her bank statements, credit card records and tax returns, the court refused to reinstate her alimony because she had not also produced her CIS and proof of her 2013 income. There is no question but that the January 17 order directs defendant to produce her CIS and 2013 income, but their production was not tied to the interdiction of her alimony by the terms of the order. Like the tax returns, those documents had never been the subject of a prior order, and the court was without authority to impose any coercive sanction, much less withholding alimony, pending their production.
Although our trial courts are accorded broad discretion in fashioning discovery sanctions, the parties have not brought to our attention any case in which our court or the Supreme Court has upheld the withholding of alimony pending compliance with discovery whether under Rule 1:10-3 or Rule 4:23-2(b). Because we find the orders infirm for other reasons, we have no need to consider the issue further.
As to the document at the heart of this appeal, defendant's CIS, and less critically her 2013 income information, there does not appear to have been a basis for the second judge to have ordered their production after the plenary hearing, and he did not do so. The third judge ordered those documents produced "immediately" because he found the request "reasonable." The case law is clear, however, that the moving party has to establish a prima facie case of changed circumstances before discovery of the opposing spouse's finances will be ordered. Lepis, supra, 83 N.J. at 157; Donnelly v. Donnelly, 405 N.J. Super. 117, 131 (App. Div. 2009); Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). Although plaintiff had once established such a prima facie case, it was dispelled at the plenary hearing, and the second judge thereafter allowed plaintiff only complete copies of documents he had already been provided in anticipation of the plenary hearing.
The third judge was not free to act as if the plenary hearing had never happened. See Donnelly, supra, 405 N.J. Super. at 127. Defendant had already defeated the cohabitation motion once at a plenary hearing; she should not have been forced to litigate it again without evidence of the proof required by the second judge in his order of April 11, 2013, or a demonstration of changed circumstances. Id. at 127-28.
Even were we to conclude that the third judge had properly ordered defendant to produce her CIS in January 2014, which we do not, we would not uphold the termination of her permanent alimony for her failure to produce it before the return date of the motion in May 2014. Considered solely as a discovery sanction, the order is unjust, compelling our intervention. See Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000).
Contrary to the court's statement in the June 27, 2014 order, the court had not asked or ordered defendant to produce her CIS on multiple occasions. The only time defendant had ever been asked or ordered to produce it post judgment was in connection with the January 2014 motion and order. The trial court has an "arsenal of remedies" at its disposal to address procedural irregularities such as delayed production of a CIS. See Casinelli v. Manglapus, 181 N.J. 354, 365 (2004). Given that defendant ultimately produced her CIS, albeit on the return date, and the lack of any demonstrated prejudice to plaintiff, the termination of defendant's permanent alimony, if it ever could be an appropriate discovery sanction, a proposition of which we are not convinced, was certainly not appropriate here in the first instance. See Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514-15 (1995).
We note not having the CIS did not prevent plaintiff's accountant from providing a detailed analysis of defendant's financial income and expenditures. --------
There being no financial proof of cohabitation in the bank statements and credit card records the second judge ordered produced following the plenary hearing, the dispute should have come to an end. Unfortunately, after reviewing those records, and without filing a new motion, plaintiff pressed a new theory. Because the records defendant produced demonstrated she was living solely on her alimony and equitable distribution payout, a sum plaintiff claimed roughly equivalent to the $40,000 income imputed to her after taxes, plaintiff argued the record demonstrated defendant had no need for alimony.
The third judge adopted this novel theory in its order of May 2, 2014. Although acknowledging that a party seeking a modification of alimony has the burden of proving changed circumstances under Lepis, and making an express finding that plaintiff had not made the required showing, the judge nevertheless terminated defendant's permanent alimony on the alternate basis that she had not demonstrated her need for such. The judge amplified the reasons for his decision in the June 27 order on reconsideration, employing the factors in N.J.S.A. 2A:34-23. He did not, however, make any reference to Crews v. Crews, 164 N.J. 11 (2000), the controlling authority here.
As the Supreme Court explained in Crews, "the standard of living experienced during the marriage . . . serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when 'changed circumstances' are asserted." Id. at 16. Judge Mendez found the parties' standard of living in the years they were not engaged in "irresponsible spending" was $14,500 per month. As defendant's monthly expenses of $2496 are approximately $12,000 a month less than the standard of the marriage, the third judge's conclusion that that defendant "can maintain the appropriate standard of living determined on the [imputed] income she should be earning" is without support in the record.
The critical point here, of course, is that after plaintiff was unsuccessful in proving cohabitation, he never established a showing of changed circumstances entitling him to financial discovery, much less the termination of his alimony obligation. Although it is certainly true under Lepis, that a payor spouse, who can demonstrate a significant change for the better in the circumstances of the dependent spouse, is as much entitled to a reduction in alimony as one who has experienced a significant change for the worse in his own circumstances, Stamberg, supra, 302 N.J. Super. at 42, that is not what occurred here. Defendant's circumstances have not manifestly changed at all since the divorce, she has not become employed and appears to live within the means she otherwise has available to her, i.e., her alimony and equitable distribution payout.
Defendant's decision to live more frugally is not a changed circumstance entitling plaintiff to relief. See Glass v. Glass, 366 N.J. Super. 357, 377-78 (App. Div.), certif. denied, 180 N.J. 354 (2004). As for defendant not "demonstrating" her need for support, it was not her burden on the motion. Defendant was never put on any notice by plaintiff or the court that she was required to do more than show she was not cohabiting with her boyfriend. Plaintiff's determination to abandon his claims of cohabitation and proceed on another theory after receiving responsive papers was not the fair notice contemplated by our motion rules. See R. 1:6-2.
The law has long been clear that alimony is "an economic right that arises out of the marital relationship and provides the dependent spouse with 'a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.'" Mani v. Mani, 183 N.J. 70, 80 (2005) (quoting Stiffler v. Stiffler, 304 N.J. Super. 96, 99 (Ch. Div. 1997)). It is not to be used as an instrument of punishment. Ibid.
The orders of May 2 and June 27, 2014 are reversed in their entirety, including the fee award, and the matter is remanded for reinstatement of alimony retroactive to January 17, 2014 and plaintiff's obligation to maintain a life insurance policy in the sum of $500,000 to secure alimony and equitable distribution. The court is to convene a case management conference at its earliest convenience to fashion an order to address the prompt payment of arrears. We do not retain jurisdiction.
Reversed and remanded for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION