KARL LAVIN VS. MARY KAY LAVINÂ (FM-13-0824-07, MONMOUTH COUNTY AND STATEWIDE)(CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4996-14T4
A-2347-15T4
KARL LAVIN,
Plaintiff-Appellant,
v.
MARY KAY LAVIN,
Defendant-Respondent.
____________________________
Argued October 25, 2017 – Decided December 1, 2017
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-0824-07.
Mark S. Guralnick argued the cause for
appellant (Mr. Guralnick, attorney; Stephen M.
Pascarella, on the briefs).
Sylvia S. Costantino argued the cause for
respondent.
PER CURIAM
In this matrimonial matter, plaintiff Karl Lavin appeals two
orders, contending that the Family Part judge erred in denying his
request to terminate his alimony obligation and in assessing
counsel fees against him.1 After a review of the record and
applicable principles of law, we affirm.
The parties were divorced in 2007. The Property Settlement
Agreement required plaintiff to pay defendant Mary Kay Lavin
alimony of $1250 per month.
In September 2013, plaintiff filed the first of several
motions to terminate his alimony obligation. In denying the motion
in January 2014, the family judge noted that the application was
deficient in its failure to include supporting financial
documentation. Plaintiff appealed and requested the trial judge
stay her order. The judge denied the motion to stay and granted
counsel fees to defendant. Plaintiff later withdrew his appeal.
Plaintiff filed a second motion to terminate alimony in
December 2014. Judge Kathleen A. Sheedy2 denied the motion and
granted defendant's cross-motion for counsel fees in an order and
written decision on February 20, 2015. The judge noted the
1
We have consolidated the appeals for the purposes of this
opinion.
2
Judge Sheedy was not the judge who decided the September 2013
motion.
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procedural deficiencies in the application, which lacked numerous
required documents, such as the prior case information statements
(CIS), current tax returns, W2s, or any paystubs. Judge Sheedy
observed that without these financial documents, she could not
compare plaintiff's "current financial status with his financial
position at the time of the divorce." Although plaintiff also
asserted a worsening medical condition in support of his
application, the judge noted that he had also failed to provide
any medical documentation to support that claim. She, therefore,
concluded that plaintiff had failed "to present a prima facie
showing of changed circumstances that would warrant a modification
of his alimony."
Defendant's cross-motion seeking counsel fees was granted.
Judge Sheedy stated:
[Plaintiff] has brought deficient
applications before and has been warned that
future deficient requests will be denied.
[Defendant] has had to respond to
[plaintiff's] similar motions in the past and
is again faced with opposing the exact same
application that was denied in January 2014.
This [c]ourt finds that [plaintiff] has
brought this application in bad faith for
failing to provide documents that he was told
he must file.
She awarded counsel fees in the amount of $1750.
Plaintiff moved for reconsideration of the counsel fee award.
In response, defendant requested that the court enforce the two
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prior awards of counsel fees and grant fees on the reconsideration
application. In a written decision and order issued on May 8,
2015, Judge Sheedy denied the motion for reconsideration, finding
that no new information had been provided to demonstrate that the
matter had been improperly decided. She determined that the
application lacked merit and had not been brought in good faith.
She, therefore, awarded an additional $750 in counsel fees to
defendant. The total outstanding counsel fees from the previous
motions was $4375.
Judge Sheedy denied plaintiff's subsequent motion for a stay
and imposed a sanction of $100 per day for each day that plaintiff
failed to comply with the previous orders requiring him to pay
counsel fees. Plaintiff appealed from the May 8, 2015 order.
In September 2015, while the appeal was pending, plaintiff
filed a third motion for termination of alimony. Judge Sheedy
denied the motion on December 11, 2015. In her written decision,
she noted the recurrent deficiencies in the application, and
plaintiff's continuing failure to include tax returns, W2s and
paystubs. Despite these shortcomings, the judge undertook a
substantive review of the motion and found that plaintiff had
failed to provide adequate proof to support a termination or
modification of his alimony obligation. The CIS revealed plaintiff
had far superior financial assets than defendant. There was no
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support for plaintiff's assertion that he was "being pressured"
to retire nor was there any documentation of his alleged worsening
medical condition.
Judge Sheedy granted defendant's motion to enforce the prior
orders and awarded counsel fees of $2000. She stated: "[Plaintiff]
was advised many times . . . that he had not provided sufficient
financial and medical documentation, and therefore knew that
filing the same information would most likely yield the same
results. [Plaintiff] however, files an identical application
without providing the necessary documentation required by the
[c]ourt." Plaintiff filed an appeal from the December 2015 order.
In these appeals, plaintiff argues that the Family Part judge
abused her discretion in finding he failed to make a prima facie
showing of changed circumstances sufficient to require termination
or modification of alimony, and in awarding defendant counsel
fees. We disagree.
We are mindful that our scope of review of Family Part orders
is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family
Part judges have broad discretion when considering an application
to modify or terminate alimony. Larbig v. Larbig, 384 N.J. Super.
17, 21 (App. Div. 2006) (citing Martindell v. Martindell, 21 N.J.
341, 355 (1956)). We owe substantial deference to these types of
decisions. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App.
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Div. 2009). Thus, an alimony determination will not be overturned
on appeal absent an abuse of discretion. See Rolnick v. Rolnick,
262 N.J. Super. 343, 360 (App. Div. 1993) (holding that in order
to vacate a trial court's findings as to modification of alimony,
"an appellate court must conclude that the trial court clearly
abused its discretion").
Similarly, "fee determinations by trial courts will be
disturbed only on the rarest occasions, and then only because of
a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292,
317 (1995).
After reviewing the record, we conclude that Judge Sheedy's
factual findings are fully supported by the record and, in light
of those facts, her legal conclusions are unassailable. We
therefore affirm, substantially for the reasons expressed in her
several well-reasoned opinions. We add the following brief
comments.
All of plaintiff's applications lacked support for his
request to terminate or even modify his alimony obligation.
Although apprised by the court of the deficiencies, plaintiff
nevertheless filed several identical defective applications.
There was no demonstration of any changed circumstances warranting
a modification or termination of the alimony obligation.
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The fees awarded to defendant are a miniscule fraction of
what she has paid her counsel to defend plaintiff's deficient
applications. Judge Sheedy did not abuse her discretion in the
enforcement of prior orders or awarding additional fees to
defendant in the May and December 2015 orders.
Affirmed.
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