DEANA CYNAR VS. LOUIS CEREFICE (FM-10-0159-15, HUNTERDON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4137-16T1
DEANA CYNAR,
Plaintiff-Respondent/
Cross-Appellant,
v.
LOUIS CEREFICE,
Defendant-Appellant/
Cross-Respondent.
______________________________
Submitted June 4, 2018 – Decided August 7, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon
County, Docket No. FM-10-0159-15.
Carter, Van Rensselaer and Caldwell, attorneys
for appellant/cross-respondent (William J.
Caldwell, on the briefs).
Einhorn, Harris, Ascher, Barbarito & Frost,
attorneys for respondent/cross-appellant
(Kristi L. Terranova, of counsel and on the
brief; Jessie M. Mills and Matheu D. Nunn, on
the brief).
PER CURIAM
Defendant Louis Cerefice appeals from two orders of the Family
Part dated February 22 and April 28, 2017, and plaintiff Deana
Cynar cross-appeals from the April 28, 2017 order. For the reasons
that follow, we affirm the trial court's decision.
We discern the following facts from the record on appeal.
The parties were married in 2005 and divorced on April 17, 2015,
after entering into a marital settlement agreement (MSA)
incorporated into a Dual Final Judgment of Divorce. Under the
MSA, defendant was obligated to pay plaintiff limited duration
alimony of $30,000 per year, payable in $1250 bi-monthly
installments, for five years. The alimony was based on plaintiff
earning approximately $88,000 per year and defendant earning
approximately $200,000 per year.
In May 2016, defendant learned his employment would be
terminated effective May 31, 2016. The employer agreed to pay
severance of $185,525 through November 2016. He also received a
payment of $28,255.67 for unpaid bonuses and was eligible for
another lump sum payment for unused vacation days.
On October 25, 2016, defendant moved to suspend his alimony
obligation because he was unemployed. On December 1, 2016,
plaintiff cross-moved asking the court to deny defendant's motion
in its entirety, enforce the MSA, and for attorney's fees. She
also advised the court that she recently lost her job.
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While his motion was pending, defendant made no alimony
payment for December 2016. For January and February 2017,
defendant, on his own initiative, paid a reduced alimony of $833
per month.
However, by December 9, 2016, defendant had obtained new
employment with a salary of $108,000 and bonus potential. He did
not notify the court or submit an updated certification. Rather,
plaintiff's counsel informed the court by letter dated February
7, 2017. The letter also advised the court that plaintiff found
new employment with a $75,000 salary.
The trial court denied defendant's motion to suspend his
alimony obligation and awarded plaintiff $1000 in partial
attorney's fees on February 22, 2017. The court explained
defendant did not show changed circumstances warranting a
suspension of his alimony obligation, noting his severance only
recently ran out in November 2016. The court further noted
defendant obtained a new job between filing his motion and oral
arguments, but he did not inform the court.
On March 6, 2017, defendant moved for reconsideration or
alternatively, to stay the February 22 order. Plaintiff cross-
moved for, among other things, attorney's fees. Defendant filed
a reply certification, wherein he advised the court he accepted
another new job with a base salary of $172,000.
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On April 28, 2017, the court denied defendant's motion and
awarded plaintiff an additional $2500 in attorney's fees. The
judge determined defendant did not satisfy his burden for
reconsideration pursuant to Rule 4:49-2. The court also further
explained its reasoning for denying defendant's initial motion to
suspend his alimony obligation, stating the motion was premature
because although defendant's job ended in May 2016, he received
severance equal to his full salary through November 2016. The
court found defendant's employment circumstances were only
temporary and did not warrant modification. Defendant failed to
present significant evidence of his job search efforts and did not
provide the court with information regarding his newly obtained
job. The court granted plaintiff's request for additional
attorney's fees because defendant's motion was premature and
defendant violated litigant's rights by engaging in self-help and
failing to pay the appropriate alimony.
This appeal followed. Our scope of review of Family Part
orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998).
Due to "the special jurisdiction and expertise of the family
court," we defer to factual determinations made by the trial court
as long as they are "supported by adequate, substantial, and
credible evidence in the record." Milne v. Goldenberg, 428 N.J.
Super. 184, 197 (App. Div. 2012) (citing Cesare, 154 N.J. at 413).
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We will not disturb the fact-findings of the trial judge unless
"they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interest of justice." Abouzahr v. Matera-Abouzahr, 361 N.J.
Super. 135, 151 (App. Div. 2003) (quoting Rova Farms Resort, Inc.
v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "[D]eference
is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility.'" MacKinnon
v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, 154 N.J.
at 412). Absent compelling circumstances, we may not substitute
our judgment for that of the trial court, which has become familiar
with the case. Schwartz v. Schwartz, 68 N.J. Super. 223, 232
(App. Div. 1961).
I.
Defendant argues now that on the initial return date of his
motion, his annual income had substantially decreased to mere
unemployment benefits, which impaired his ability to support
himself. He contends he was unemployed for over six months since
he was terminated in May 2016 and did not obtain a new job until
December 2016. Defendant contends the motion judge erred by
declining to hold a plenary hearing because there was prima face
proof of changed circumstances. We disagree.
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Under the MSA, defendant agreed to pay plaintiff limited
duration alimony in the sum of $30,000 per year, payable in $1250
bi-monthly installments, for five years. It further provided the
alimony obligation "shall be subject to modification or suspension
. . . as permitted by New Jersey statutory or case law."
Accordingly, the onus was on defendant to demonstrate changed
circumstances in order to suspend his alimony obligation. J.B.
v. W.B., 215 N.J. 305, 327 (2013) (citing Lepis v. Lepis, 83 N.J.
139, 146-48 (1980)) ("When a party to a comprehensive negotiated
[MSA] seeks to modify any support obligation, that party must meet
the threshold standard of changed circumstances."). Changed
circumstances that justify an increase or decrease of support
include an increase in the cost of living, an increase or decrease
in the income of the supporting or supported spouse, cohabitation
of the dependent spouse, illness or disability arising after the
entry of the judgment, and changes in federal tax law. Lepis, 83
N.J. at 151. Temporary circumstances are an insufficient basis
for modification. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing
Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)).
The decision to modify or suspend an alimony obligation "based
upon a claim of changed circumstances rests within a Family Part
judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17,
21 (App. Div. 2006) (citations omitted). "There is, of course,
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no brightline rule by which to measure when a changed circumstance
has endured long enough to warrant a modification of a support
obligation." Id. at 23. Rather, "such matters turn on the
discretionary determinations of Family Part judges, based upon
their experience as applied to all the relevant circumstances
presented, which we do not disturb absent an abuse of discretion."
Ibid. The threshold issue in determining whether to hold a plenary
hearing is if "the movant has made a prima facie showing that a
plenary hearing is necessary." Hand v. Hand, 391 N.J. Super. 102,
106 (App. Div. 2007).
The trial court's determination defendant failed to
illustrate a prima facie case of changed circumstances warranting
a plenary hearing is supported by competent evidence in the record.
The record reveals defendant continued to receive substantially
the same income as contemplated in the MSA. As such, he has not
shown an inability to pay and the judge's sound decision to deny
him a plenary hearing was not an abuse of discretion.
II.
We further reject defendant's assertion that the motion judge
abused her discretion in awarding plaintiff partial attorney's
fees. The record demonstrates his bad faith. However, we also
reject plaintiff's cross-appeal, arguing the motion judge should
have awarded her full attorney's fees because defendant's motion
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for reconsideration was baseless, defective, and filed in bad
faith. Plaintiff argues defendant earns significantly more money
than her, and while he had a period of unemployment, he continued
to receive severance equal to his previous salary. She contends
that he improperly engaged in self-help in modifying alimony,
twice failed to inform the court of new employment, purposely
omitted relevant information from his applications to the court,
filed a motion for changed circumstances while still receiving his
base salary in the form of severance, and filed a motion for
reconsideration without any basis.
"An award of counsel fees is only disturbed upon a clear
abuse of discretion." J.E.V. v. K.V., 426 N.J. Super. 475, 492
(App. Div. 2012) (quoting City of Englewood v. Exxon Mobile Corp.,
406 N.J. Super. 110, 123 (App. Div. 2009)). We "will disturb a
trial court's determination on counsel fees only on the 'rarest
occasions, and then only because of a clear abuse of discretion.'"
Ibid. (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Rule
4:42-9(a)(1) states "[n]o fee for legal services shall be allowed
. . . except [i]n a family action . . . pursuant to Rule 5:3-
5(c)."
Here, plaintiff requested an award of $5881.25 in counsel
fees and costs for defendant's motion for reconsideration. The
motion judge awarded plaintiff $1000 in partial attorney's fees
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for defendant's initial motion and an additional $2500 for the
motion for reconsideration. Plaintiff has not demonstrated the
motion judge abused her discretion in awarding partial attorney's
fees.
Affirmed.
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