ELIZABETH MIRMAN VS. BRIAN F. MIRMAN (FM-07-2348-03, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4326-16T1
ELIZABETH MIRMAN,
Plaintiff-Respondent/
Cross-Appellant,
v.
BRIAN F. MIRMAN,
Defendant-Appellant/
Cross-Respondent.
_____________________________
Argued November 28, 2018 – Decided February 21, 2019
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-2348-03.
Jeffrey P. Weinstein argued the cause for
appellant/cross-respondent (Weinstein Lindemann &
Weinstein, attorneys; Jeffery P. Weinstein, of counsel
and on the briefs; Grace Eisenberg and Kelscey A.
Boyle, on the briefs).
Allison S. Dunn argued the cause for respondent/cross-
appellant (Gomperts Penza McDermott & Von Ellen,
LLC, attorneys; Gerri N. Gomperts, of counsel and on
the briefs; Allison S. Dunn, on the briefs).
PER CURIAM
In this post-judgment matrimonial matter, defendant Brian F. Mirman
appeals from a Family Part order denying his motion to require that plaintiff
Elizabeth Mirman pay child support, for modification or termination of his
alimony obligation to plaintiff, for an award of attorney's fees and for a plenary
hearing. Plaintiff cross-appeals, challenging the court's denial of her motion to
compel defendant to contribute to a life insurance policy securing defendant's
alimony obligation and for attorneys' fees. We affirm in part, vacate in part and
remand for further proceedings.
I.
Plaintiff and defendant married in 1989 and share three children, J.M.,
born in 1991, and twins, S.M. and M.M., born in 1998. The parties divorced in
2004. Their final judgment of divorce incorporated a negotiated property
settlement agreement (PSA), which includes provisions relevant to the disputes
between the parties that are the subject of the appeal. The PSA provides for
joint legal custody of the children with plaintiff designated as the parent of
primary residence. The PSA further provides for defendant's payment of $4600
A-4326-16T1
2
per month in alimony and allows for the termination of alimony in the event of
the death of either party or plaintiff's remarriage.
Defendant agreed to pay $6000 in monthly child support, with $2000
allocated to each unemancipated child. The PSA states that any additional
payments made by defendant to plaintiff for the support of the children in excess
of the agreed upon child support do not reduce or increase the monthly payment
obligations. The PSA further provides that "[p]ermanent residence of a child
with [defendant] shall be deemed a change of circumstances and [defendant]
shall be entitled to file a motion to terminate his [child] support obligation if the
parties do not agree."
Paragraph 4.4 of the PSA sets forth the parties' agreement on the children's
educational expenses. It generally requires that, after applying monies available
from Roth IRA college accounts, financial aid and student loans, the parties will
share the expenses based on their proportionate incomes. The PSA does not
provide for any contribution by the parties to their children's post-graduate
educational expenses.
The PSA further required that defendant maintain a $1 million life
insurance policy, naming plaintiff as a beneficiary, to insure plaintiff's receipt
A-4326-16T1
3
of alimony. The PSA provides that "[defendant's] policy terminates at age
[sixty-five], at which time the parties shall revisit this provision."
J.M was emancipated in 2013. By early 2017, she had graduated from
college and dental school, and was continuing her education in a dental
specialty. S.M. and M.M. were nineteen and no longer resided with plaintiff,
having moved out of her home and into defendant's home in September 2016.
When they began residing with defendant in September 2016, he ceased making
the $4000 monthly child support payment for the two children to plaintiff.
In February 2017, defendant filed a motion seeking modification or
termination of his alimony obligation, an award of child support from plaintiff
and attorneys' fees.1 Plaintiff filed a cross motion requesting an order requiring
that defendant contribute to the cost of a life insurance policy she purchased on
defendant's life after the policy required under the PSA terminated in 2016 when
defendant turned sixty-five. Plaintiff also moved for an award of attorneys'
fees.2
1
Defendant sought other relief in his motion. The court's disposition of
defendant's other requests is not challenged on appeal.
2
Plaintiff's cross-motion sought other relief that is not at issue on appeal.
A-4326-16T1
4
Following oral argument, the court denied defendant's motion for
termination or modification of his alimony obligation, finding defendant's
current income is comparable to the income he earned at the time the parties
were divorced and he otherwise failed to demonstrate a change in circumstances
warranting the requested termination or modification. The court also denied
defendant's request for an award of child support, concluding that although S.M.
and M.M were residing with defendant, defendant's income from his dental
practice substantially exceeded plaintiff's income, which was generally limited
to the alimony she received from defendant, social security benefits and
investment income.
The court further denied plaintiff's motion to compel defendant to
contribute to the cost of the life insurance policy she obtained on defendant's
life following his sixty-fifth birthday. The court concluded the PSA required
defendant to maintain a life insurance policy only until he was sixty-five and
that the parties agreed to revisit the issue at that time. The court also found
plaintiff did not demonstrate the insurance policy she purchased was comparable
to the policy defendant had maintained pursuant to the PSA and denied without
prejudice plaintiff's motion to require that defendant contribute to the policy
payments. In addition, the court denied both parties' motions for attorney's fees.
A-4326-16T1
5
The court entered an order reflecting its rulings on the parties' respective
motions. This appeal followed.
II.
We "accord particular deference to the Family Part because of its 'special
jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super.
457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
We reverse only if there is "'a denial of justice' because the family court's
'conclusions are . . . "clearly mistaken" or "wide of the mark."'" Parish v. Parish,
412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)). "However, when reviewing legal
conclusions, our obligation is different; '[t]o the extent that the trial court's
decision constitutes a legal determination, we review it de novo.'" Landers v.
Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (alteration in original)
(quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
The Family Part has authority under N.J.S.A. 2A:34–23 to modify alimony
and child support awards. Spangenberg v. Kolakowski, 442 N.J.Super. 529, 535
(App. Div. 2015). The statute provides that alimony and child support orders "may
be revised and altered by the court from time to time as circumstances may require."
N.J.S.A. 2A:34–23. "Our courts have interpreted this statute to require a party who
A-4326-16T1
6
seeks modification to prove 'changed circumstances[.]'" Spangenberg, 442 N.J.
Super. at 536 (alteration in original) (quoting Lepis v. Lepis, 83 N.J. 139, 157
(1980)).
A motion for modification of alimony or child support "rests upon its own
particular footing and the appellate court must give due recognition to the wide
discretion[,] which our law rightly affords to the trial judges who deal with these
matters." Ibid. (alteration in original) (quoting Martindell v. Martindell, 21 N.J. 341,
355 (1956)). "While an 'abuse of discretion . . . defies precise definition,' we will
not reverse the decision absent a finding the judge's decision 'rested on an
impermissible basis[,]' considered 'irrelevant or inappropriate factors[,]'" ibid.
(alterations in original) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571-
72 (2002)), or "failed to consider controlling legal principles or made findings
inconsistent with or unsupported by competent evidence," ibid. (quoting Storey v.
Storey, 373 N.J. Super. 464, 479 (App. Div. 2004)).
"[T]he changed-circumstances determination must be made by comparing the
parties' financial circumstances at the time the motion for relief is made with the
circumstances which formed the basis for the last order fixing support obligations."
Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). In order to establish
changed circumstances, a "party seeking modification has the burden of showing
A-4326-16T1
7
such 'changed circumstances' as would warrant relief from the support or
maintenance provisions involved." Lepis, 83 N.J. at 157 (quoting Martindell, 21
N.J. at 353).
Defendant contends the court erred by denying his motion for an order
directing that plaintiff pay child support for their two unemancipated children who
began residing with him in September 2016. The court denied the request, finding
defendant failed to demonstrate changed circumstances because his income in 2016
is essentially the same as it was in 2004 when the parties agreed to the PSA, and
defendant's income is substantially higher than plaintiff's.
The court erred by focusing solely on the incomes of the parties and by
not considering a significant changed circumstance warranting consideration of
an award of child support to defendant. When the PSA was entered in 2004,
plaintiff was designated the parent of primary residence for the parties' three
children. Defendant was required to pay child support not only because his
income was greater than plaintiff's, but also because the children did not reside
with him. In defendant's motion, however, he asserted that in September 2016
the parties' two unemancipated children moved from plaintiff's home and have
thereafter resided with him.
A-4326-16T1
8
Child support is a joint obligation of both parents for as long as a child
remains unemancipated. Llewelyn v. Shewchuk, 440 N.J. Super. 207, 214-15
(App. Div. 2015); Lynn v. Lynn, 165 N.J. Super. 328, 343 (App. Div. 1979).
"[A] parent is obligated to contribute to the basic support needs of an
unemancipated child to the extent of the parent's financial ability[.]" Colca v.
Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (second alteration in original)
(citation and internal quotation marks omitted). Plaintiff has an obligation to
contribute to the basic support needs of her unemancipated children. Thus, their
relocation to defendant's residence constitutes a change in circumstances
requiring a reassessment of the child support obligations of the parties. See
Winterberg v. Lupo, 300 N.J. Super. 125, 133 (App. Div. 1997) (finding change
in residential custody supported a finding of changed circumstances warranting
reconsideration of a child support obligation). The court erred by concluding
otherwise. We therefore reverse the court's order denying defendant's motion
for an order directing that plaintiff pay child support and remand for further
proceedings to determine plaintiff's child support obligation, if any, based on all
of the relevant circumstances presented.
We are not persuaded by defendant's claim the court abused its discretion
by finding defendant failed to demonstrate changed circumstances sufficient to
A-4326-16T1
9
warrant modification or termination of his alimony obligation. See Larbig v.
Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) ("Whether an alimony
obligation should be modified based upon a claim of changed circumstances
rests within a Family Part judge's sound discretion."). The record supports the
court's determination that defendant has not suffered any reduction in his income
warranting a modification or termination of his alimony obligation. Defendant's
submissions reflect his gross income and net income have increased since he
entered into the PSA.3 Moreover, defendant made no showing that plaintiff's
income has increased substantially since the divorce. Plaintiff's income consists
of the alimony she receives from defendant, supplemented by social security
benefits.4 Although defendant argues that due to his age and health issues he
3
Defendant did not provide any evidence showing his income in 2004, when
the final judgment of divorce was entered. Instead, the record includes a 2003
case information statement showing his gross and net income in 2002. The
amount of defendant's adjusted gross income for 2015 is set forth in his 2015
federal tax return and his case information statement. Defendant had not filed
his tax returns for 2016 when his motion was considered by the court. In his
February 16, 2017 case information statement, he stated that he was "[w]aiting
for information concerning [his] 2016 income and [would] supplement" the case
information statement "accordingly." The record does not include any
competent evidence concerning defendant's 2016 income.
4
The judge's order required that plaintiff provide defendant with information
concerning investment income not reflected on the tax return she annexed to her
case information statement. There is nothing in the court's order or this opinion
A-4326-16T1
10
will be unable to continue to work at a level sufficient to maintain the same
income, he continues to work and earn at the same level as when the judgment
of divorce was entered. To warrant modification or termination of his alimony
obligation, defendant is required to show a change in circumstances, not that the
relevant circumstances may change in the future. See Lepis, 83 N.J. at 151
("Courts have consistently rejected requests for modification based on
circumstances . . . which are expected but have not yet occurred.").
Similarly, defendant argues he has incurred increased expenses because
his two unemancipated children reside with him and are attending college, but
ignores he has been relieved of his $4000 per month child support obligation, is
entitled to seek child support from plaintiff and the PSA incorporates the parties'
agreement concerning the payment of the children's college expenses. In sum,
we discern no abuse of discretion in the court's determination that defendant
failed to establish "'changed circumstances' . . . warrant[ing] relief from" his
alimony obligation, id. at 157 (quoting Martindell, 21 N.J. at 353), and affirm
precluding defendant from moving for modification or termination of his
alimony obligation based on the plaintiff's disclosure of additional income not
included in the case information statement she provided in opposition to his
February 2017 motion.
A-4326-16T1
11
the court's order denying defendant's motion for termination or modification of
the alimony required under the PSA.
Plaintiff argues the court erred by denying her motion for an order
directing that defendant contribute to the cost of the life insurance policy that
plaintiff obtained to secure defendant's alimony obligation when the life
insurance policy defendant was required to maintain lapsed in 2016. As noted,
the PSA required defendant to maintain a life insurance policy securing the
payment of alimony until he was sixty-five and, at that time, the parties would
"revisit the issue." In part, the court denied the motion based on a general
finding that contract principles barred his consideration of plaintiff's request.
Matrimonial agreements are contractual in nature. Pacifico v. Pacifico,
190 N.J. 258, 265 (2007); Flanigan v. Munson, 175 N.J. 597, 606 (2003). A
question regarding the interpretation or construction of a contract is a legal
determination and our review is plenary, with no special deference to the trial
judge's interpretation of the law and the legal consequences that flow from the
established facts. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). "We do
not supply terms to contracts that are plain and unambiguous, nor do we make a
better contract for either of the parties than the one which the parties themselves
A-4326-16T1
12
have created." Maglies v. Estate of Guy, 193 N.J. 108, 143 (2007); Graziano v.
Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).
In denying plaintiff's motion, the court erred by failing to give effect to
the parties' express agreement that they would "revisit" the issue of defendant's
maintenance of a life insurance when defendant turned sixty-five. There are no
contract principles that precluded the court's consideration of plaintiff's reque st.
To the contrary, we interpret the PSA's language to allow plaintiff to raise the
issue of defendant's continued maintenance or contribution to a life insurance
policy following his sixty-fifth birthday and, like any other issue in a
matrimonial dispute, seek recourse in the courts to obtain whatever relief the
law allows.
N.J.S.A. 2A:34-25 states that "[a]limony shall terminate upon the death of
the payer spouse," but provides that "[n]othing in this act shall be construed to
prohibit a court from ordering either spouse to maintain life insurance for the
protection of the former spouse . . . in the event of the payer spouse's . . . death."
Thus, courts may require a paying spouse to obtain a life insurance policy to
protect a supporting spouse's receipt of alimony. See Jacobitti v. Jacobitti, 135
N.J. 571, 578 (1994) (finding N.J.S.A. 2A:34-35 "explicitly allow[s] a court to
order the supporting spouse to maintain life insurance for the benefit of the
A-4326-16T1
13
dependent spouse to protect the dependent spouse if the dependent spouse
outlives the supporting spouse").
We vacate the court's order denying plaintiff's request for defendant's
maintenance or contribution of a life insurance policy protecting plaintiff's
receipt of alimony, and remand for the court to determine the issue. In doing
so, we do not suggest or offer an opinion on the issue. We have decided only
that the court erred by failing to address and decide the issue. On remand, the
court shall consider and determine the issue based on the evidence presented and
determine whether the requested relief is appropriate under the standards set
forth in N.J.S.A. 2A:34-23, which provides for orders for alimony or
maintenance of the parties "after [a] judgment of divorce."
Plaintiff and defendant each argue the court erred by denying their
respective requests for attorneys' fees. We review a court's determination of a
request for counsel fees in a matrimonial case for an abuse of discretion. J.E.V.
v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012). We have carefully
considered the court's detailed findings supporting its decision denying the
parties' requests for attorneys' fees and discern no abuse of discretion in the
court's denial of the parties' motions. See R. 4:42-8; R. 4:42-9(a)(1); see also
Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006).
A-4326-16T1
14
We affirm the court's order denying defendant's motion for modification
or termination of his alimony obligation and the parties' motions for attorneys'
fees, reverse the court's order denying defendant's motion for an order directing
that plaintiff pay child support and plaintiff's motion for defendant's contribution
to the life insurance policy, and remand for further proceedings on defendant's
motion for child support and plaintiff's request for contribution toward t he life
insurance policy. We do not retain jurisdiction.
A-4326-16T1
15