ALIMONY/PALIMONY

Clarke v. Clarke, 359 N.J. Super. 562 (App. Div. 2003)   Before Judges Pressler, Wallace, Jr., and Hoens.  Opinion by Judge Wallace, Jr.

Issue:  Whether plaintiff former wife was barred by equitable defenses from collecting the trial court’s judgment of a quarter century’s worth of alimony arrearages plus interest and attorneys fees from her deceased former husband’s estate where the former husband did not pay his court ordered alimony from the time of divorce until his death.

Holding:          Where defendant acted in bad faith by hiding his whereabouts from plaintiff to avoid paying alimony for almost a quarter of a century, plaintiff was not barred by the equitable defenses of laches, waiver, and estoppel from collecting $118,700 in alimony arrears plus interest. 

            The parties were divorced on June 9, 1976 after 29 years of marriage.  At the time of the divorce, the parties had three adult children.  Plaintiff-wife was awarded equitable distribution and alimony of $100 per week.  However, defendant failed to comply with the court ordered support payments.  Plaintiff filed several motions seeking enforcement, and in March 1978, arrears were set at $4,500 as of February 13, 1978.  On December 22, 1978, in recognition of defendant’s move to New York, the court terminated an account maintained by the Union County Probation Department. 

            A short time after, plaintiff sent the parties’ son to locate defendant in New York.  When the parties’ son found defendant, he departed the country to sail around the world.  From that point on, defendant’s whereabouts became unknown to the plaintiff except for a brief period in the mid to late 1980’s when defendant asked plaintiff to drop the outstanding warrant against him so that he could recover money in a suit against the person to whom he had sold his business.  Defendant promised to pay plaintiff the alimony arrears out of the lawsuit recovery, so plaintiff complied with his request.  However, defendant never paid plaintiff.  In fact, defendant died, testate, on January 30, 2000, without ever paying plaintiff his court ordered support payments.  Defendant left his entire estate to the parties’ daughter, Linda.

            On August 29, 2001, plaintiff filed a motion to fix the alimony arrears as of defendant’s death at $118,700 plus interest, counsel fees, and costs.  After hearing oral argument, on November 2, 2002, the trial court judge issued an order fixing alimony arrears in the amount of $118,700, awarding interest on the arrears to be computed, and awarding plaintiff’s attorney’s fees and costs totaling $6,654.33.  On November 30, 2002, in a subsequent order, the trial judge fixed interest at $104,316.43 and awarded additional attorney’s fees and costs to plaintiff totaling $855.  The total judgment in favor of plaintiff was $230,526.66. 

            In reaching its decision, the trial court noted that “plaintiff never made any representations, both implicit or explicit to defendant, that she waived her alimony rights.”  The court emphasized that plaintiff consistently attempted to enforce her rights until she was no longer able to determine defendant’s whereabouts.  The court further recognized that the defendant never sought to terminate or modify his alimony obligation through the courts based on changed circumstances. 

            On appeal, defendant Estate argued that plaintiff’s claim for alimony arrears was barred by the equitable defenses of laches, waiver, and equitable estoppel.  In upholding the trial court’s award of alimony arrears and interest, the appellate court ruled that laches, waiver and equitable estoppel did not bar plaintiff’s claim.

            First, defendant Estate claimed that plaintiff’s claim was barred by the doctrine of laches.  The appellate division defined laches as “the failure to assert a right within a reasonable time resulting in prejudice to the opposing side.”  Citing L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002) TC "L.V. v. R.S., 347 N.J. Super. 33 (App. Div. 2002)" \f C \l "2" .  The appellate division reasoned that while the delay in this case was unreasonably long, the trial court found “ample justification” for such delay, and such delay did not result in prejudice to the defendant. 

            Second, defendant Estate claimed that plaintiff waived her alimony claim by not filing a claim in New York, by withdrawing the warrant in the mid to late 1980’s, and by filing no other enforcement motions after defendant left the state in 1977.  The appellate division defined waiver as “the voluntary relinquishment of a known right.”  The appellate division held that there was no evidence that plaintiff voluntarily relinquished her right to alimony.  To the contrary, the appellate division noted that plaintiff made several attempts to locate defendant.

            Third, defendant Estate claimed that plaintiff’s claim was barred by the doctrine of equitable estoppel.  The appellate division defined equitable estoppel as:

…the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed… as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse…  Citing W.V. Pangborne & Co., v. New Jersey Dept. of Transp., 116 N.J. 543, 553 (1989) TC "W.V. Pangborne & Co., v. New Jersey Dept. of Transp., 116 N.J. 543 (1989)" \f C \l "2"  (quoting Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334 (1979) TC "Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334 (1979)" \f C \l "2" ). 

The appellate division held that “there was no evidence that defendant relied upon plaintiff’s inaction or that he changed his position for the worse.” 

            In addition, the appellate division upheld the trial court’s award of interest.  The appellate division noted that the award of interest is within the judge’s discretion under R. 5:7-5, which provides that “for past-due alimony…payments…, the court may … assess a late interest charge against the adverse party at the rate prescribed by Rule 4:42-11(a).”  Citing R. 5:7-5.  The appellate division held that based on defendant’s behavior over time, the trial court did not abuse its discretion in awarding interest to the plaintiff. 

            Finally, the appellate division reversed and remanded to the trial court as to the award of counsel fees.  The appellate division opined that while the award of counsel fees is within the trial judge’s discretion, the judge is required to address the factors set forth in R. 5:3-5(c) in making his determination.  Because the judge failed to make the required findings under the Rule, the appellate division reversed the portions of the November orders granting plaintiff counsel fees, and remanded for reconsideration on that issue. 

            The appellate division affirmed the trial court’s award of alimony arrears and interest to the plaintiff.

Recigno v. Recigno, A-2023-01T5, (App. Div. January 7, 2003)  Before Judges Braithwaite, Lintner, and Parker.  Per curiam opinion.  Unpublished opinion.  

Issue:              Whether the trial court erred in awarding plaintiff $133, 625, representing her share of assets acquired during the parties’ relationship, in a situation where plaintiff had filed a complaint for divorce on grounds of extreme cruelty and husband had filed an answer stating that the marriage never existed. 

Holding           The trial court was not mistaken in fashioning equitable remedies in plaintiff’s favor, despite her failure to demonstrate the existence of a marriage.  Plaintiff filed a pendente lite motion for relief that was denied, although defendant was ordered to maintain his current health and life insurance.  The parties met in 1971 and began living together shortly thereafter until 1974.  During this period, the parties “held themselves out as husband and wife.”  At trial, plaintiff’s sister testified that she thought that the parties were married and had seen a wedding ring and an engagement ring on the plaintiff’s hand.  Additionally, the defendant’s parents addressed mail to “Mr. and Mrs. P. Recigno.”  In 1974, the defendant purchased a home in his name only.  The parties resided at this address from 1974 until their separation in June of 2000.  Plaintiff and defendant made “substantial contributions” to the improvement of the residence and commingled their finances to pay bills relating to their home.  Plaintiff deposited all her income into a joint savings account and defendant deposited some of his income into the same account. 

            In 1981, the parties purchased a beauty salon.  Plaintiff invested $7,000 towards the acquisition of equipment and supplies.  Plaintiff worked “long hours” at the salon and received no salary.  The beauty salon was sold in 1987 and received $63,000 in net proceeds from the sale.  Plaintiff claimed that she “signed the proceeds over to the defendant because defendant promised to invest the proceeds for both of them.”  During the marriage the parties had acquired jointly held real estate.  Defendant acquired a vacant lot in his name alone.  Defendant acquired a pension, and plaintiff acquired a 401K plan and savings bonds.  The parties had filed a tax return in 1990 with a status of “Married, Filing Joint Return.”  From 1996 through 1999, defendant filed his tax return as “Married, Filing Separately”.  Defendant named plaintiff as his wife on his work-related insurance and the parties executed a mortgage in the name of defendant and plaintiff as his “wife.”  Plaintiff performed domestic services.  With regard to the acquisition of property during the marriage by the parties in their joint capacity or defendant alone, plaintiff testified that she “felt it was an investment for us as a couple, that in the years to come [they] would have a great retirement together.” 

            The trial judge concluded that the plaintiff had failed to demonstrate the existence of a common law marriage.  Despite this conclusion, the trial judge found that the plaintiff was entitled to equitable relief.  The trial judge defined the parties’ relationship as “truly a joint venture of a personal and business nature [, and that] [i]t was the mutual intent of the parties to be partners…”  When determining the parties’ joint assets, the judge included the total value of securities acquired by the defendant in his own name, as well as the total value of the real estate, including the marital residence which was purchased in defendant’s name alone.  Determining that these joint assets totaled $267,249, the judge awarded $133,625 to the plaintiff, representing “one half of the securities and real estate the parties jointly acquired during the marriage.”  Defendant retained his pension, totaling $98, 426, his credit union funds, and his truck.  Plaintiff retained her 401K plan with a balance of $34,000 and her savings bonds with a balance of $16,100.

            The appellate division found that the trial judge’s determinations were “supported by sufficient credible evidence in the record.”  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)   The appellate division affirmed the trial court’s decision “substantially for the reasons expressed” by the trial judge and declared that the trial judge had applied correctly the principles set forth in Crowe v. DeGioia  , 90 N.J. 126 (1982), aff’d, 102 N.J. 50 (1986)  and Kozlowski v. Kozlowski, 80 N.J. 378 (1979)

            The Appellate Division affirmed the decision of the trial judge.

Wellington v. Estate of Wellington, 359 N.J. Super. 484 (App. Div. 2003)  Before Judges Petrella, Lintner and Bilder.  Opinion by Petrella, J.A.D.

Issue:  Whether the trial judge erred in granting summary judgment in favor of defendant Estate in a situation where plaintiff sued the executors of the Estate of her former husband claiming that the property settlement agreement she entered into with her former husband mandated that the Estate continue paying her spousal support until her death. 

Holding:          The trial court did not err in granting summary judgment in favor of the defendants because the lump sum payment from the Estate was a satisfaction for plaintiff’s claim for continued right to support after decedent’s death. 

            Plaintiff married decedent husband in 1966 and was divorced in 1970.  One child was born of the marriage.  Specifically, the parties’ Agreement was entered under New York law and set forth that decedent husband’s obligation to pay spousal support on a annual basis would terminate upon plaintiff wife’s remarriage.  The Agreement also stated that the husband was obligated to maintain a will bequeathing and devising to the plaintiff “if she survives him and was not remarried” the sum of  (1) $100,000 if the husband died prior to the their child turning 18 years of age, or (2) $50,000 in the event that the husband died subsequent to the child’s eighteenth birthday. 

            Decedent husband died testate in 2000 and, pursuant to the terms of the Agreement, his will gave plaintiff $50,000 since the parties’ child was over age 18.  Plaintiff brought suit against the Estate asserting that the Estate was obligated to continue her spousal support payments in accordance with the Agreement.  The trial judge granted summary judgment in favor of defendant Estate. 

            On appeal, the appellate division began its rationale by instructing that “under New York law the obligation to pay alimony terminates upon the death of the payor, unless the parties agree otherwise.”  However, the court relied on the case of Cohen v. Cronin, 39 N.Y.2d 42 (1976) for the proposition that:

We start with the well-accepted proposition that a husband’s obligation to support his wife terminates with the husband's death.  However, the husband might, by agreement, impose upon his estate a duty to make alimony or support payments after his death.  In order to bind the estate, a separation agreement must either specifically provide for the continuation of payments or evince, from the terms of the agreement as a whole, a clear intention that support payments continue, notwithstanding the husband’s death.  While explicit agreement by the parties is obviously much to be preferred, where such explicit agreement is lacking, the court must read the document as a whole in its total context and examine each of its provisions in order to ascertain the overriding intention of the parties.  Since the burden of proof is by the claimant, the wife must establish, to the satisfaction of the court, that the parties actually intended to extend the obligation to make support payments beyond the husband’s lifetime.

Id. at 45-46.

            In Cohen, the court concluded that the provision in the parties’ agreement that stated that support payments to the wife continued “until she remarry or expire” without any other qualifying or limiting language was sufficient to obligate the decedent husband’s estate to make the support payments until the wife’s death.  The Cohen agreement did state that the wife was unemployed and that the spousal support would serve as her only source of income to pay the ongoing costs of the marital home she received under the agreement.  Under the Cohen agreement, the wife waived her right to share in her husband’s estate, and the court emphasized this fact, explaining that “it was only reasonable that, in consideration for the release of her other marital rights, she acquired the security of having support payments made during her lifetime.  Id. 

            Rejecting plaintiff’s position by distinguishing Cohen from the case at bar, the appellate division noted that “[t]he agreement in Cohen provided that support would continue during the wife’s lifetime or until her remarriage, whereas the agreement here stated only that support would terminate upon plaintiff’s remarriage.”  The court rejected plaintiff’s argument that the fact that the Property Settlement Agreement did not mention the death of the decedent as a terminating event infers that the support payments were to continue after decedent’s death, finding that her “argument overlooks the reality that under New York law, the obligation terminates upon the death of the payor, unless otherwise provided.”

            Further distinguishing Cohen from the case at bar, the appellate division noted that the Cohen agreement emphasized that the spousal support would be the wife’s only means of support, while the agreement in the case at bar specifically stated that both parties were free to engage in any type of employment.  Moreover,  the Cohen agreement did not contain any provisions concerning any death benefit for the wife, in contrast to the agreement in the case at bar.

            The appellate division then turned to the case of In Re Riconda, 90 N.Y.2d 733 (1997) , wherein the separation agreement at issue allowed for the payment of support payments until the wife’s death or remarriage, but did not mention what would happen if the husband were to predecease the wife.  “Therefore, in order to discern the parties’ intent, the court had to look at the whole document and particularized circumstances at the time the agreement was made.”  Id. at 738-39.  “Because the record was incomplete in that regard, summary judgment could not be made.”  Id. at 740-41. 

            Relying on Riconda, the appellate division noted that “the court in Riconda stated that a provision for a lump-sum payment in a will in discharge of claims against the estate, or a provision making a former spouse the irrevocable beneficiary of life insurance are evidence of intent that support was not to continue past the death of the payor spouse.  Id. at 739.  The Court also referenced In re Benitz, 191 A.D.2d 793 (N.Y. App. Div.) , wherein the provision in a separation agreement making the supported spouse an irrevocable beneficiary of payor’s life insurance policy was evidence that neither party intended for the support payments to continue past the death of the payor spouse.  In contrast, the appellate division noted that in Cohen, the “lack of a life insurance or will provision was taken as evidence that the parties intended support to continue post-death.” 

            In the case at bar, the specific language in the parties’ Agreement with regard to the will states that the decedent husband’s lump sum payment to the wife upon his death served “[a]s a full settlement of the Wife’s property rights in the estate of Husband, and consistent with Revenue Ruling 60-160…” Plaintiff argued that the term “property rights” did not constitute a substitution for support or maintenance.  Rejecting this argument, the appellate division found that “[t]he only property right plaintiff could have in the estate is based on the husband’s continuing obligation to support her,” and that this view is bolstered by the fact that the lump sum is payable to her under the Agreement only if she survived her former husband.  The appellate division reasoned that “if [plaintiff] had property due to her as part of equitable distribution, it would have been due to her regardless of the husband’s death and payable to her heirs.”  The appellate division also looked to the fact that the lump sum payments were tied to the 18^th birthday of the child, “which indicates that the bequest was intended to satisfy any continuing child support obligations the estate may have, and concomitantly, the estate’s obligations to plaintiff.”

            Agreeing with defendant Estate’s argument that the provision’s reference to Revenue Ruling 60-160 indicates that the lump sum payment by the Estate was a substitute for support and maintenance payments, the appellate division noted that “[t]here would be no reason to mention the revenue ruling in the agreement except to reference the last part of the ruling, which says a ‘deduction is allowable only to the extent that the transfer does not exceed the reasonable value of the support rights of the wife”. 

            In conclusion, the appellate division affirmed the holding of the trial court, finding that “[s]imply stated, the intent of the separation agreement is unambiguous and evident within its four corners.  It provided for plaintiff to receive $50,000…upon her former husband’s death in satisfaction of any claim for continued right to support.  Thus, summary judgment was properly granted.” 

Rose v. Csapo, 359 N.J. Super. 53 (Ch. Div. 2002) Opinion by Millard, J.S.C.

Issue:              Whether a dependent spouse’s cohabitation with her paramour during the pending divorce litigation terminates the supporting spouse’s obligation to pay spousal support.

Holding:          A court’s finding of cohabitation of a dependent spouse with a paramour pendente lite terminates the supporting spouse’s obligation to pay pendente lite spousal support.  The parties were married in 1985.  There were four children born of the marriage.  In January 2000, plaintiff wife told her husband she wanted a divorce.  The parties occupied separate bedrooms until an incident occurred resulting in the issuance of a domestic violence restraining order against the husband.  In January 2001, the restraining order was dismissed and an FD order was entered for support, visitation and civil restraints.  The plaintiff voluntarily left the marital home and moved herself and the four children into her parents’ home.  The parties agreed that the defendant husband would pay the wife $700 per week in unallocated support.  An order for the same was entered ‘without prejudice’ and further required that both parties exchange Case Information Statements once the plaintiff had obtained alternate housing.

            For purposes of the FD order, the court set husband’s income at $81, 630.  Plaintiff had a nursing degree, but had not worked during the majority of the marriage.  The court found that “[i]t is apparent that the parties mutually agreed that she would stay at home during the children’s infancy.”  Several subsequent orders were entered, including an order granting wife custody of the children and a $5,000 counsel fee award. 

            On March 26, 2001, wife jointly purchased a home with her paramour for the sum of $210,000, and moved herself and the parties’ children into the new home.  The complaint for divorce was filed in November 2001.  Husband sought a reduction in his unallocated support order in January 2002 due to his assertion that his obligation to provide spousal support ceased once his wife began cohabiting with her paramour, and requested that his child support obligation be set in accordance with the child support guidelines. 

            In reply to husband’s application, the wife stated that she did jointly purchase the home with her paramour and that her paramour contributes $800 per month to the monthly budget.  She further stated that her paramour could not afford to contribute beyond the $800 per month because of his other financial obligations, including those to his children from a prior marriage.  Wife did not provide detailed information regarding the paramour’s finances, but claimed that she and her paramour did not contribute to one another’s expenses. 

            After examining the facts of the case, the court instructed that “[t]he general purpose of pendente lite support is to maintain the parties in the same or similar situation they were in prior to the inception of the litigation; ‘to preserve the status quo through the device of awarding temporary financial support pending a full investigation of the case.’”  Mallamo v. Mallamo, 280 N.J. Super 8, 12 (App. Div. 1995)  Turning to a brief history of cases dealing with cohabitation of the supported spouse in the context of post-judgment, the court explained that Lepis v. Lepis 83 N.J. 139, 151 (1980) was the seminal case on the issue, holding that cohabitation by a supported spouse constituted a change in circumstances possibly warranting a modification of support.  The court then explained that Lepis was “refined” by Gayet v. Gayet, 92 N.J. 149 (1983) , which held that “the test to apply to a cohabitation case post judgment is the economic needs analysis as set forth in Garlinger v. Garlinger, 137 N.J. 56, 347 A.2d 799 (App. Div. 1975)  Summarizing the proposition found in all of the cases, the court stated that “[i]n these cases, it is ‘the extent of actual economic dependency, not one’s conduct as a cohabitant’ which determines the duration and amount of support.”  Gayet, 92 N.J. at 154.

            The court then noted that anti–cohabitation clauses in property settlement agreements had been upheld by the Supreme Court in Konzelman v. Konzelman, 158 N.J. 185 (1999)   Specifically, in Konzelman, Justice Handler noted that “[w]here the parties have agreed that cohabitation will constitute a material changed circumstance…the court need not delve into the economic needs of the dependent former spouse.”  The court further instructed that the subsequent case of Conlon v. Conlon, 335 N.J. Super. 638 (Ch. Div. 2000)   interpreted Konzelman as directing that “the automatic termination of alimony would not occur post judgment without the economic needs test unless there was an anti-cohabitation clause in the property settlement agreement.”

            Turning to the pendente lite situation at bar, the court explained that “in the pendente lite setting, the supporting spouse is not in a position to insist on a cohabitation clause, a practice that has become not uncommon in divorce settlements.”  Again emphasizing that the goal in the pendente lite setting is to maintain the status quo, the court explained that in the majority of pendente lite cases, the parties continue to share the marital residence, and that maintenance of the status quo in this scenario involves “payment of marital bills and expenses necessary to maintain the dependent spouse at the standard of living enjoyed during the course of the marriage.”  Lepis, 83 N.J. at 150. 

            However, the court emphasized that once the dependent spouse leaves the marital home and moves in with a paramour, the “circumstances so sufficiently disrupt or alter the status quo of the former relationship, that maintaining the status quo can no longer be the goal sought to be achieved by the court in the pendente lite setting.”  However, before the goal of maintaining the status quo can be set aside, there must be a finding of cohabitation, which can be defined as set forth in Konzelman:

Cohabitation is not defined or measured by solely or even essentially by ‘sex’…[but] 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 circle.”

Konzelman, 158 N.J. at 202.

            Summarizing the above definition, the Rose court declared that cohabitation “is a determination that the parties have such an intertwined relationship that support of the spouse inevitably constitutes support of the paramour.”  Although opining that mandating spousal support in such a scenario appears “contrary to public policy,” the court noted that “[i]f the court finds the dependent spouse’s relationship is something less th[an] full cohabitation, then the economic needs analysis should be employed.  Likewise, a future change in the dependent spouse’s relationship would constitute a change of circumstances warranting a modification.” 

            The court examined the rule that “[w]here a prima facie showing of cohabitation is made out by the supporting spouse, there is a rebuttable presumption which shifts the burden of proof to the alleged cohabiting spouse, to show that there is no actual economic benefit being received,” and declared that this rule was applicable to the case at bar.  The court stated that the burden shifting rule was “particularly appropriate here, as well, where the cohabiting party and the paramour hold all the resources, as well as the financial and social/sexual information necessary for the court to make a finding regarding cohabitation and whether pendente lite spousal support should be eliminated.”

            Applying the above definition set forth in Konzelman to the facts of the case, the court concluded that the plaintiff was cohabiting with her paramour, noting that the plaintiff and her paramour purchased a home together, shared meals, and held themselves out to the public as a “couple.”  The court stated that “[i]nherent in such a finding is a determination that [plaintiff] is receiving economic benefit from the new relationship.”  Noting that a “dollar to dollar equivalent to that which her spouse previously provided is not the controlling issue[,]” the court opined that the plaintiff had “begun a new life, without waiting for the court to dissolve the marriage[,]” and that “she can not expect that her husband will financially support her in such an undertaking.”

            The court granted defendant’s application to reduce the unallocated support award of $700 per week and denied plaintiff’s request for pendente lite spousal support.  The court set the defendant’s child support in accordance with the guidelines at $470 per week.

 Weishaus v. Weishaus, 360 N.J. Super. 281 (App. Div. 2003) Before Judges Wefing, Wecker, and Fuentes.  Opinion byFuentes, J.A.D.

Issue:  Whether the trial court erred in excluding gifts received from defendant husband’s mother when establishing marital lifestyle and in refusing to accept the parties’ mutual agreement to defer a determination of marital lifestyle until a possible future application of modification of support.

Holding:          The trial court erred in excluding the gifts received from defendant husband’s mother when determining marital lifestyle.  However, the court did not err in refusing to permit the parties to defer a determination of marital lifestyle until a future date, since a detailed finding as to marital lifestyle must be established at the time of trial and can not be deferred to a later date. 

            The parties were married on January 13, 1985.  Three children were born of the marriage, ages 10, 15, and 16.  The parties were separated in March of 2000 and filed for divorce in the summer of 2000.  The two younger children continued to reside with plaintiff mother, while the older child went to reside with defendant father.  Plaintiff’s case information statement (CIS) set forth that the cost of her marital lifestyle was $36,345 per month, or $436,140 per year.  A pendente lite order was entered on December 4, 2000, which awarded plaintiff child support for the two children living with her in the amount of $339 per week, and alimony of $500 per week.  The order further directed defendant to “pay and ‘immediately bring current’ all household expenses, including credit card balances, utilities and maintenance expenses.” 

            In February of 2001, plaintiff brought a motion to enforce the pendente lite order, which was heard before a different judge.  Denying plaintiff’s motion, the judge “reduced defendant’s weekly child support obligation to $290 per week, increased the alimony payment to $550 per week and reduced defendant’s overall support obligation to exclude payments for all mortgage, home equity loans and taxes, transportation expenses in excess of $100 per month, unreimbursed healthcare expenses and counseling expenses for the oldest child.”  The judge based his decision on his refusal to “take $117,000 a year” from the defendant since defendant was only netting $84,000 per year.  The judge also asserted that he could not “order the husband’s mother to continue to make gifts and support this family.” 

            In June of 2001, the parties executed a property settlement agreement, which provided that plaintiff receive term alimony for three years, allocated as $28,400 in the first year, $23,400 in the second year, and $15,000 in the third year.  The agreement further stated that the case of Lepis v. Lepis, 83 N.J. 139  was to be applicable to the agreement.  The agreement further provided that defendant was to pay child support for the two younger children on a “declining scale.” 

The agreement further provided: “The parties waive their right to the cost of living adjustments and automatic two year review.  The parties do not waive any other rights under the law, including any rights either may have as a result of a change in circumstances.” 

During the uncontested hearing held on July 2, 2001, plaintiff asserted that, “under the circumstances and under the financial support” provided in the agreement,  she would not be able to “resume or live a standard which is consistent or commensurate with the standard enjoyed” by her and defendant during the marriage.  When asked to explain her testimony, plaintiff responded: 

During our marriage we were supported by [defendant’s] mother who is very wealthy in large part.  And I am no longer sharing in that subsidy—that additional income that my husband gets.  So that—that’s partially why.  And the other piece is that we did have joint assets which I needed to use in order to maintain—to live during this two year period of time.  And also the substantial drop in the stock market made us lose some of that money as well.  So for those two reasons I will not be able to live as I lived before and during my marriage. 

Plaintiff further testified that her marital standard of living was accurately reflected in her case information statement.

Based on the evidence provided, the trial judge concluded:

So I don’t see any reduction in lifestyle when I exclude money that came into the household from [defendant’s] mother which I cannot charge him with having a responsibility to continue so that if [plaintiff] ever comes back and tries to claim that she can’t maintain her lifestyle, she cannot utilize the money that came into the household from his mother as a basis for seeking modification.  And with respect to the other items, it seems that they lived on assets.  Again, that’s another item that I cannot require him or I cannot charge to him—for which I can charge him a responsibility.  He certainly cannot continue to support his former wife out of assets.  So I find there is not actual shortfall in lifestyle and that finding should be included in the Judgment of Divorce.  

Plaintiff appealed the judgment.  Through the Civil Appeals Settlement Program (CASP), a conference was held wherein the parties agreed to settle the case.  “With respect to the question of marital lifestyle, the parties agreed to vacate the Family Part’s findings and further agreed as follows:

Both parties acknowledge that they have not agreed upon what was the parties’ standard of living during their marriage, but they have agreed not to litigate that issue at this time.  The parties also acknowledge and agree that should either party make an application that requires the Court to ascertain the accustomed standard of living during their marriage, the Court will then be required to determine that issue.  The parties further acknowledge that if the plaintiff or the defendant hereafter seeks to modify the alimony provisions of the parties’ Property Settlement Agreement [dated June 29, 2001], which agreement is incorporated in the Judgment, the Court may then be required to determine inter alia, if either party is entitled to relief pursuant to Crews v. Crews, 164 N.J. 11 (2000)

On remand to the trial court, the trial court refused to approved the parties’ settlement.  “The judge specifically objected to that part of the settlement which deferred determining the marital lifestyle until either party makes an application for modification of support.” 

Reviewing the trial court’s rejection, the appellate division opined that its analysis would be guided by “our Supreme Court’s clear direction in Crews v. Crews, 164 N.J. 11 (2000)[:],” wherein the Court directed: “The setting of the marital standard of living is equally important in an uncontested divorce.  Accordingly, lest there be an insufficient record for the settlement, the court should require the parties to place on the record the basis for the alimony award including, in pertinent part, establishment of the marital standard of living, before the court accepts the divorce agreement.”  Quoting Crews, 164 N.J. at 26-27.

The Weishaus court further focused on that portion of the Crews opinion that states:  “Finally, we note that in either a contested or uncontested divorce setting, the earnings of the supporting spouse at the time of entry of the divorce do not limit the standard of living enjoyed by the parties during the marriage.  Indeed, in establishing the marital standard of living, a supporting spouse’s current earnings are not determinative.”  Quoting Crews, 164 N.J. at 26-27.

Turning to the case at bar, the Weishaus appellate division noted that “in determining the marital lifestyle, the trial court improperly excluded the contributions made by defendant’s mother as well as the funds generated by the liquidation and leveraging of marital assets.”  Additionally, the appellate division instructed that “[a] judicial determination of marital lifestyle must be based on evidence detailing the parties’ actual standard of living, whether supported exclusively by the parties’ earnings or supplemented by the liquidation of family assets, borrowing or even gifts.  It is not for the court to extrapolate a sensible lifestyle based only on actual earnings. People are free to live above their means.”  Citing Hughes v. Hughes, 311 N.J. Super. 15,34 (App. Div. 1998)

The appellate division further opined that:

even in uncontested cases, ‘the court should require the parties to place on the record the basis for the alimony award including, in pertinent part, establishment of the marital standard of living, before the court accepts the divorce agreement.’ Crews, supra, 164 N.J. at 26, 751 A2d 524. Thus, in determining the ‘marital standard of living,’ the trial court must rely on specific evidence detailing the parties’ manner of living during the marriage as well as the financial sources underwriting it.  The record will form the baseline from which to determine any future application for modification of support.  Id. at 16, 751 A2d 524.  Even when the parties stipulate as to the marital lifestyle, the stipulation must be definite and certain in its terms and the consent of the parties to be bound by it must be clearly established.  Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 325, 689 A2d 757 (App. Div.), certif. Denied, 152 N.J. 10, 702 A2d 349 (1997)

The appellate division further instructed that pursuant to Crews, “if the parties have been unable to stipulate as to the marital lifestyle, despite their agreement as to the amount of support, the trial court is required to determine the parties’ marital lifestyle.  This determination must be made at the time the final judgment of divorce is issued and cannot be deferred to any future modification hearing.”  Citing Crews, 164 N.J. at 26.  The appellate division opined that “[o]ne method for placing the parties’ descriptions in the record would be by means of detailed certifications from each party, with an opportunity for cross-examination on the certifications.”  The appellate division further opined, “Alternatively, the judge may allow the parties’ positions to be entered entirely through live testimony.”  The appellate division set forth, “In either case, the judge must make detailed findings of fact as to the essential elements of the parties’ actual lifestyle, without reliance upon such vague and subjective terms as ‘middle-class,’ ‘working-class,’ or ‘upper class.’” 

The appellate division instructed that once the court has determined marital lifestyle, it must establish the amount of support required.  The appellate division noted, “It is at this point in the analysis that the supporting spouse’s current earnings become relevant, but not alone determinative in arriving at an appropriate support figure.”  Citing Crews, 164 N.J. at 27.  The appellate division directed that in all uncontested cases where the court must determine support:

the trial court must expressly consider on the record (1) the supporting spouse’s current income; (2) capital assets available to supporting spouse for leveraging and/or liquidation; (3) the supporting spouse’s capacity to earn the amount of support awarded by diligent attention to his or her business; (4) the ability of the supported spouse to contribute to his or her own support.

With regard to uncontested cases where the parties have agreed on support, the appellate division explained that “the record must reflect both the parties’ agreement as to the amount of support and whether or not the support is sufficient to maintain the marital lifestyles.  This record will form the baseline from which the court will determine any future motion for modification of support.” 

The appellate division reversed the trial court’s findings as to marital lifestyle and remanded with instructions that the trial court establish marital lifestyle in accordance with its opinion. 

CHILD CUSTODY/VISITATION

A.B. and S.B.W. v. S.E.W., 175 N.J. 588 (2003)  Opinion by Justice Verniero.  

Issue:              Whether a prior trial court order denying an application for visitation by a domestic partner should be reopened and reconsidered based on the new standard for visitation by a psychological parent articulated in V.C. v. M.J.B., 163 N.J. 200 (2000)

Holding:          The appellate division did not err by declining to reverse the trial court’s refusal to reopen plaintiff partner’s case.  The Court held that it would affirm the trial court whether it evaluated plaintiff’s application “through the prism of Rule 4:50 or as a more typical request to revise an existing visitation schedule.”  In addition, the Court held that V.C. could not be applied retroactively to this or any similar case in which the time for appeal has expired. 

            The parties were domestic partners from November 1988 to November 1996.  During this time, both partners became pregnant through artificial insemination by the same donor.  Defendant had a child (K.W.) in 1993, and plaintiff gave birth to S.B.W. in 1994.  Both partners were named as K.W.’s parents and both actively participated in raising her.  K.W. was also given plaintiff’s surname as her middle name and she called both parties “Mama.” 

However, in November 1996, the parties ended their cohabitation.  In September 1998, the trial court determined that while plaintiff stood in loco parentis to K.W., she “had not proved by a preponderance of the evidence that visitation would be in K.W.’s best interest.”  In reaching its decision, the trial court relied heavily on testimony from the parties’ friends that they observed “plaintiff’s purported anger and resentment toward defendant” and that this behavior affected the child.  The trial court denied visitation, and plaintiff did not appeal.

In April 2000, the New Jersey Supreme Court decided V.C. which holds, “once a third party has been determined to be a psychological parent to a child… he or she stands in parity with the legal parent…[and] visitation will be the presumptive rule.”  V.C., 163 N.J. at 227-28.  In August 2000 plaintiff moved to reopen the 1998 order, claiming that based on the new standard set forth in V.C., the prior judgment should be set aside.  Plaintiff relied on R. 4:50-1(f), which allows a court to reopen a final order for “any other reason justifying relief form the operation of the judgment or order.”  R. 4:50-1(f).

The Supreme Court noted that “developments in case law generally do not qualify as ‘extraordinary circumstances’ as to justify relief from a final judgment.” Citing Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 434 (1975)  In affirming the trial court’s decision not to reopen the case, the Supreme Court reasoned as follows:

On a Rule 4:50 motion, the need to achieve equity and justice always is balanced against the state’s legitimate interest in the finality of judgments.  Where the future of a child is at stake, there is an additional weight in the balance: the notion that stability and permanency for the child are paramount.  Applying those tenants, we are satisfied that the trial court did not err when it declined to reopen the prior order.      

Ultimately, the Court determined that permitting plaintiff to re-enter the child’s life would risk harm to the child, as six and a half years had passed since the parties’ relationship ended.  Additionally, the Court was not persuaded by the argument that S.B.W., plaintiff’s son, should be afforded contact with his half-sibling.  After S.B.W.’s birth, he was diagnosed with autism, and therefore if contact were to take place, visitation would have to be supervised by plaintiff.  The Court agreed with the trial court’s initial determination that such contact with the plaintiff would be detrimental to K.W. 

The plaintiff also argued that the trial court’s 1998 visitation order is subject to continuing jurisdiction.  The Court held while technically that is true, “the jurisdiction of the court, however, cannot be invoked merely because a party wishes to argue new or developing case law.”  Modification would require changed factual, not legal circumstances.   

Finally, plaintiff argued that V.C. should be applied retroactively to her case.  Both the trial court and the appellate division denied plaintiff’s request, and the Supreme Court affirmed.

Abouzahr, M.D. v. Matera-Abouzahr, M.D., 361 N.J. Super. 135 (App. Div. 2003)  Before Judges Stern, Collester and Alley.  Opinion by Judge Collester.

Issue:              Whether a former spouse may alter the terms of a property settlement agreement to prevent visitation in a country which is not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction.

Holding:          The appellate division affirmed the trial court’s finding of no changed circumstances to warrant modification of the parties’ agreed-upon parenting time.  However, the appellate division remanded for entry of an order directing defendant to provide at least four weeks notice to plaintiff of his intent to exercise parenting time in Lebanon, or any other Middle Eastern country, to permit her time to apply to the Family Part for its evaluation of the security and safety of the child during the proposed visitation. 

            The parties, both doctors, were married in April 1986, in St. Louis, Missouri.  In 1984, plaintiff ex-husband, a citizen of Lebanon, moved to the U.S. to complete his medical schooling.  Soon after, plaintiff met defendant ex-wife, a U.S. citizen.  They married in both Muslim and Catholic ceremonies and became dual citizens of Lebanon and the U.S.  In March 1992, their only child was born in the U.S. and also has dual citizenship. 

            In May 1998, when the child was six years old, defendant told plaintiff that she wanted a divorce.  The parties sought separate legal counsel and engaged in mediation , during which plaintiff said he wanted to return to Lebanon.  He agreed to defendant’s having residential custody, and he sought one summer month of parenting time with the child in Lebanon.  Defendant told the mediator that she “did not believe [plaintiff] would retain [the child] in Lebanon beyond the agreed time.”  Despite the fact that three attorneys advised defendant of potential problems with parenting time in Lebanon, she ultimately signed a Property Settlement Agreement granting joint legal custody, with defendant as parent of primary residence, and New Jersey as the child’s home state.  Plaintiff was given one month each summer with the parties’ daughter in Lebanon or any other place the husband chose. 

            Two days after the divorce, plaintiff moved to Lebanon, where communication quickly ceased between the parties.  While plaintiff spoke to his daughter on the telephone weekly, he refused to give defendant his address or phone number, saying it was “none of her business.” 

Prior to plaintiff’s first scheduled visitation in August 2000, defendant filed an Order to Show Cause to restrain plaintiff from removing the child from New Jersey.  The trial judge set a plenary hearing and granted plaintiff parenting time in the U.S.  Both the trial court and the appellate division denied defendant’s application for a stay.

At the plenary hearing the trial court found that, despite defendant’s testimony, there was substantial credible evidence that she knew that Lebanon was not a signatory of the Hague Convention and that under Islamic or Lebanese law, plaintiff has the right to prolong or prevent the return of her daughter.  Ultimately the court concluded:

there’s no question in my mind that the evidence demonstrates that [defendant] was well aware of the general proposition that it is difficult to retrieve children from other jurisdictions; that Lebanon favors men over women, in general, with regard to any dispute, and specifically, with regard to disputes over children.

            The trial court held there was no change in circumstances warranting modification of the Property Settlement Agreement.  The court also discussed the child’s best interests and noted that it found credible plaintiff’s testimony “that he had no intention of abd