PAMELA PAGAN VS. DAVID PAGAN (FM-12-2110-05, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2471-18T3
PAMELA PAGAN,
Plaintiff-Respondent,
v.
DAVID PAGAN,
Defendant-Appellant.
____________________________
Submitted September 18, 2019 – Decided October 2, 2019
Before Judges Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-2110-05.
George G. Gussis, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant David Pagan appeals from a January 25, 2019 order denying
his motion for reconsideration of an October 12, 2018 order which denied his
motion to terminate alimony and life insurance obligations to plaintiff Pamela
Pagan on grounds of cohabitation, retirement, and an economic change in
circumstances. We affirm.
We take the following facts from the record. The parties married in 1985
and divorced in 2006. Defendant was employed as a New Brunswick police
officer between 1993 and 2018, when he retired. The judgment of divorce
incorporated a property settlement agreement (PSA), in which defendant agreed
to pay plaintiff $220 per week in permanent alimony until one of the parties
died, or plaintiff remarried or cohabited. Specifically, the PSA defined
cohabitation as follows: "Plaintiff's cohabitation with a member of the opp osite
sex, not related by blood or marriage, for a period of sixty . . . days or more
regardless of any financial contribution by that person." Alimony was based
upon an imputed income to plaintiff of $20,000 and defendant's 2004 earnings
of $71,404. Defendant also agreed to "obtain additional term life insurance in
the amount of $150,000.00 naming [p]laintiff the beneficiary . . . for so long as
he has an alimony and/or pension obligation."
In September 2018, plaintiff filed a post-judgment motion to enforce the
alimony and life insurance provisions. Defendant filed a cross-motion seeking
termination of both obligations. His certification explained he obtained a
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"[s]pecial [r]etirement" from the police department on March 1, 2018, and his
"sole income" was his pension. He admitted he did not secure the life insurance
policy because his employment coverage was $195,000. He further explained,
"I also thought that I would no longer have that obligation once I went on
pension status. My group life insurance is now only $62,600.15[;] . . . I am not
in a physical and financial position to obtain any insurance."
Defendant's appendix on appeal attaches medical evidence comprised of
letters from his doctors indicating defendant was receiving treatment for
"chronic mid and low back pain." The records describe defendant had moderate
to severe degenerative disc disease, herniated and bulging discs, and stenosis in
the mid and lower back areas. However, the certification defendant filed with
his cross-motion does not reference these documents.
Defendant explained he remarried, had two children, purchased a
Hillsborough residence in 2018, with a mortgage balance of $437,820.08, and
his income had been $112,479, but was now "vastly reduced." He argued the
motion filing fee waiver application plaintiff filed with the court showed
earnings of $25,200 per year, greater than the $20,000 imputed to her in the
PSA. He asserted his decreased earnings, financial circumstances, and
plaintiff's increased earnings were grounds to terminate alimony.
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Defendant also argued alimony should terminate because plaintiff was
cohabiting with another man and engaged to marry him. He provided Facebook
posts he believed depicted the engagement and explained "I am certainly not in
a position to hire a detective in North Carolina to confirm this[.]"
The motion judge granted plaintiff's enforcement motion. The judge
concluded defendant had not met the conditions in the PSA for the termination
of alimony and denied defendant's cross-motion to terminate alimony on the
basis of cohabitation without prejudice.
Defendant filed a motion for reconsideration. Although the record on
appeal lacks defendant's certification, we glean the following from the letter
brief his attorney filed with the motion judge. Defendant argued the judge had
not made adequate findings in the October order. He argued his cross-motion
was unopposed and he established a prima facie case of cohabitation and a
financial change in circumstances.
The motion judge denied reconsideration, and in his written findings in
the January 2019 order, stated:
Defendant's certifications and appended proofs
addressing [p]laintiff's alleged cohabitation are
inconclusive. Defendant certifies that he has learned
[p]laintiff is engaged in North Carolina. Defendant
appends Facebook photos which purport to demonstrate
same. Defendant's assertion that his claims of
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cohabitation are unopposed does not absolve him of his
burden to make a prima facie showing of co-habitation.
Defendant's appended exhibits were considered and
were found to be lacking as probative, competent
evidence. . . .
Defendant's original application for termination
of alimony was predicated on his early retirement.
Defendant sought to modify his alimony obligations
under a change of circumstance analysis under Lepis v.
Lepis, 83 N.J. 139 (1980). Defendant's original
application failed to address the factors contained in
N.J.S.A. 2A:34-23(j), to so determine if his early
retirement was made in good faith. Defendant did not
address the factors weighing whether the change in
circumstance was self-created, and therefore, was
originally [denied]. Defendant's reconsideration
request provides no new evidence, nor does it address
the statutory factors as required. Rather, [d]efendant's
application merely registers a dissatisfaction with this
[c]ourt's denial.
I.
On appeal, defendant raises arguments relating to the October 2018 order,
namely, the denial of his cross-motion for relief from the alimony and life
insurance obligations, the judge's findings there were no change in
circumstances, and the overall quality of the judge's findings. We do not
consider the arguments related to the October 2018 order, because the notice of
appeal identifies only the January 2019 order. "While . . . [Rule 2:5-1(f)(1)]
does not in terms so provide, it is clear that it is only the judgments or orders or
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parts thereof designated in the notice of appeal which are subject to the appeal
process and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1
on R. 2:5-1(f)(1) (2019) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super.
463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). Also, "if the notice
designates only the order entered on a motion for reconsideration, it is only that
proceeding and not the order that generated the reconsideration motion that may
be reviewed." Ibid. (citing W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397
N.J. Super. 455, 458-59 (App. Div. 2008)).
II.
"[T]he decision to grant or deny a motion for reconsideration rests within
the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (citation omitted).
"Reconsideration should be used only where '1) the [c]ourt has expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate the significance
of probative, competent evidence.'" Ibid. (alteration in original) (quoting
Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310
(App. Div. 2008)). "Thus, a trial court's reconsideration decision will be left
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undisturbed unless it represents a clear abuse of discretion." Ibid. (citing Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).
Defendant argues the motion judge abused his discretion when he denied
the motion for reconsideration. He asserts the judge failed to make specific
findings regarding the termination of alimony, even though he filed "all the
information required under [N.J.S.A. 2A:34-23(j)(3)]" to enable the judge to
make the finding of a good-faith retirement. He contends the judge erred
because the motion for reconsideration was unopposed.
We are satisfied the motion judge's denial of reconsideration was not an
abuse of discretion. As the judge noted, the parties contracted for specific
language regarding the termination of alimony, namely, termination in the event
of a cohabitation for a period of sixty days or plaintiff's remarriage. Defendant's
presentation of Facebook photos purporting to show plaintiff's engagement party
proved neither the sixty-day period of cohabitation nor plaintiff's remarriage as
required by the PSA.
We further reject defendant's argument the judge erred when he denied
reconsideration of his motion to terminate alimony on the basis of his retirement.
Unlike other amended provisions of N.J.S.A.
2A:34-23, subsection (j) distinguishes alimony orders
executed prior to the amendment's effective date and
those executed afterwards. See N.J.S.A. 2A:34-
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23(j)(1), (3). Therefore, this unambiguous legislative
directive governs a court's examination of alimony
modification requests arising when an obligor retires,
depending on the original date alimony is awarded.
Subsection (j)(3) applies "[w]hen a retirement
application is filed in cases in which there is an existing
final alimony order or enforceable written agreement
established prior to the effective date of this act. . . . "
N.J.S.A. 2A:34-23(j)(3).
[Landers v. Landers, 444 N.J. Super. 315, 323 (App.
Div. 2016) (emphasis in original).]
N.J.S.A. 2A:34-23(j)(3) states:
When a retirement application is filed in cases in
which there is an existing final alimony order or
enforceable written agreement established prior to the
effective date of this act, the obligor's reaching full
retirement age as defined in this section shall be
deemed a good faith retirement age. Upon application
by the obligor to modify or terminate alimony, both the
obligor’s application to the court for modification or
termination of alimony and the obligee's response to the
application shall be accompanied by current Case
Information Statements [(CISs)] or other relevant
documents as required by the Rules of Court, as well as
the [CISs] or other documents from the date of entry of
the original alimony award and from the date of any
subsequent modification. In making its determination,
the court shall consider the ability of the obligee to have
saved adequately for retirement as well as the following
factors in order to determine whether the obligor, by a
preponderance of the evidence, has demonstrated that
modification or termination of alimony is appropriate:
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(a) The age and health of the parties at the
time of the application;
(b) The obligor's field of employment and
the generally accepted age of retirement for
those in that field;
(c) The age when the obligor becomes
eligible for retirement at the obligor's place
of employment, including mandatory
retirement dates or the dates upon which
continued employment would no longer
increase retirement benefits;
(d) The obligor's motives in retiring,
including any pressures to retire applied by
the obligor's employer or incentive plans
offered by the obligor’s employer;
(e) The reasonable expectations of the
parties regarding retirement during the
marriage or civil union and at the time of
the divorce or dissolution;
(f) The ability of the obligor to maintain
support payments following retirement,
including whether the obligor will continue
to be employed part-time or work reduced
hours;
(g) The obligee's level of financial
independence and the financial impact of
the obligor’s retirement upon the obligee;
and
(h) Any other relevant factors affecting the
parties' respective financial positions.
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The record on appeal lacks any CIS or other objective evidence to discern
defendant's age, as required by N.J.S.A. 2A:34-23(j)(3)(a), and the financial
circumstances, pursuant to N.J.S.A. 2A:34-23(j)(3)(f), (g), or (h), to enable us
to determine if the judge erred. See R. 2:6-1(a)(1)(I) (stating appellant's
appendix must include those portions of the record that "are essential to the
proper consideration of the issues"). The failure to produce this information in
this one-sided appeal, as it was on the motion for reconsideration, demonstrates
the judge did not err when he concluded defendant failed to meet his burden to
establish a good-faith retirement.
The same logic applies to defendant's argument the judge should have
terminated his alimony based on a financial change in circumstances. Without
the parties' CISs from the time of the divorce and at the time of the motion for
reconsideration, which defendant's brief on appeal argues were provided to the
motion judge, we cannot determine if the motion judge erred when he concluded
a $5200 increase in plaintiff's annual income did not constitute a change in
circumstances. Without the ability to understand the marital lifestyle and the
parties' needs, the modest increase in income alone does not demonstrate the
judge erred when he determined no Lepis change in circumstances.
Affirmed.
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