Opinion
DOCKET NO. A-0066-12T1
06-30-2014
JOSE RODRIGUES, Plaintiff-Appellant, v. ROSA RODRIGUES, Defendant-Respondent.
Fernando Iamurri, P.C., attorneys for appellant (Mr. Iamurri, on the briefs). Janet L. Pennisi, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-0346-10.
Fernando Iamurri, P.C., attorneys for appellant (Mr. Iamurri, on the briefs).
Janet L. Pennisi, attorney for respondent. PER CURIAM
In this post-judgment matrimonial matter, plaintiff Jose Rodrigues sought to modify his alimony obligation on the basis of his reduced income and defendant Rosa Rodrigues' cohabitation. The trial court denied the motion because plaintiff failed to establish the requisite change of circumstances. We agree and affirm.
We discern the following facts from the record of the motion hearing. The parties divorced on October 19, 2010, after a twenty-year marriage. The property settlement agreement (PSA), incorporated into their judgment of divorce, required Jose to pay Rosa permanent alimony of $16,500 per year. At the time of divorce, Jose earned $83,657 annually; when he filed this modification motion, he earned approximately $82,456 annually. Rosa earned approximately $8022 over a thirty-three week period in the year of the divorce. Jose alleges that Rosa is now voluntarily under-employed, but has potential rental income from a property in Portugal she inherited from her father.
At issue is paragraph one of the PSA in which Jose agreed to pay defendant Rosa permanent alimony of $16,500 per year, and reserved to Jose the right "in the event of [Rosa's] cohabitation with another person to make an application to reduce or terminate alimony[.]" Paragraph two allows the parties to apply for modification to the alimony provisions pursuant to Lepis v. Lepis "if there is a change in circumstances as may be determined by a [c]ourt with jurisdiction herein."
Lepis v. Lepis, 83 N.J. 139, 157 (1980).
On May 24, 2012, Jose filed a motion for modification of alimony due to an alleged decrease in income. He supported the motion with a certification attesting that he was an unemployed construction worker receiving unemployment benefits totaling $560 per week. He asserted that with an annual income of $2 9,12 0, he was unable to pay $1375 per month in alimony. Jose submitted a case information statement (CIS) dated May 2012. Rosa opposed the motion and filed a cross-motion seeking to enforce the February 3, 2012 order denying Jose's earlier motion to reduce alimony and requiring him to bring the alimony arrears current.
At oral argument on July 20, 2012, counsel argued Jose had lost his job as a construction worker in late 2011 due to the downturn in the construction industry, and could not afford to pay alimony. He also argued Rosa's cohabitation with her sister permits Jose to make an application to reduce or terminate alimony.
Defense counsel reminded the court that the parties had separated during the marriage and Rosa went to live with her sister. The sisters continued to share a home since that time. Jose was aware that Rosa lived with her sister when they negotiated the PSA, and therefore should be estopped from claiming "cohabitation" as a basis for terminating alimony. Counsel further argued that in 2011, the year following entry of the divorce judgment, Jose earned over $82,000, and since the February 2012 order, he had purchased a home. Counsel contended the modest monthly expenses listed in Jose's CIS suggested an ability to pay his alimony obligation.
In an oral opinion that same day, the Family Part judge denied Jose's motion without conducting an evidentiary hearing, finding Jose had failed to demonstrate a prima facie change of circumstances to warrant modification of the PSA alimony provisions. Lepis, supra, 83 N.J. at 157. The judge rejected Jose's claim that Rosa was impermissibly "cohabiting" with her sister. The judge, who also presided over the divorce proceedings, noted that counsel and the parties were all aware of this issue when Jose argued the same claim during the divorce settlement discussions. The judge found that Rosa living with her sister did not constitute "cohabitation" as intended by the PSA, and was not a basis for modifying the alimony provision.
The judge then found Jose's financial circumstances did not demonstrate a change in circumstances or an inability to comply with his alimony obligation. The judge especially noted (1) Jose's 2011 and 2012 CIS reported earnings of $82,456; (2) his annual living expenses of $69,360; (3) his 2012 purchase of a $216,000 home; and (4) his $10,000 in savings in two bank accounts. Because Jose had failed to meet the minimum threshold of changed circumstances, the judge did not order a plenary hearing. Instead, the judge entered an order denying Jose's motion to modify alimony.
In a subsequent order, dated July 15, 2012, the judge denied that portion of Rosa's cross-motion seeking counsel fees. That order has not been appealed.
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In this appeal, Jose contends the judge failed to find he established a prima facie case of changed circumstances and reached conclusions without first having afforded him the benefit of a hearing. He also contends the judge "failed to make proper findings of [law]" to justify the denial of the motion.
Our review of a trial judge's findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Id. at 413. Accordingly, we will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" New Jersey Division of Youth & Family Services. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Indeed, considering the special expertise of Family Part judges, reviewing courts accord enhanced deference to such findings. Ibid. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
We have reviewed the record of proceedings and are satisfied that, on the merits, there is no basis for reversal of the Family Part's order. On the issue of cohabitation, it is undisputed that Rosa was living with her sister at the time the parties executed the PSA. Moreover, Jose began making alimony payments with the full knowledge that Rosa was living with her sister. Contrary to Jose's expressed position, this is strong evidence to support the judge's conclusion that Rosa living with her sister was not intended to mean cohabitation within the meaning of the agreement. Accordingly, the court properly rejected this contention.
Alimony obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Lepis, supra, 83 N.J. at 146 (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)). However, any change must be permanent to support an alimony modification. Innes v. Innes, 117 N.J. 496, 504 (1990). Temporary unemployment or reduction in income cannot support a request for modification. Lepis, supra, 83 N.J. at 151. Whether a change is of sufficient duration to be deemed permanent is left to the sound discretion of the Family Part judge. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).
We are satisfied that the judge properly exercised her discretion in determining that Jose's financial circumstances were not sufficient to establish the required permanent changed circumstances to warrant a modification of alimony. The judge carefully examined Jose's CIS, and found his monthly expenses were less than his annual income, and reasonably inferred Jose had available financial resources to pay alimony. We discern no error in that determination. In denying Jose's motion, the court's findings were supported by ample evidence in the record, and the court applied the correct legal principles. We accordingly have no occasion to interfere with the results achieved.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION