W.S. VS. S.S. (FM-20-0830-07, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3780-19
W.S.,
Plaintiff-Respondent,
v.
S.S.,
Defendant-Appellant.
_______________________
Submitted March 22, 2021 – Decided November 12, 2021
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County.
Docket No. FM-20-0830-07.
Patti Family Law, attorneys for appellant (John A.
Patti, on the briefs).
Kathleen B. Estabrooks, PC, attorneys for respondent
(Kathleen B. Estabrooks, on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Defendant S.S.1 appeals from the May 12, 2020 order of the Family Part
denying his motion to terminate his alimony obligation to plaintiff W.S. We
affirm.
I.
The parties were married in 2002. At the time, both worked. When W.S.
was pregnant with the couple's second child she was diagnosed with a
noncancerous brain tumor that prevented her from working. In 2006, the Social
Security Administration declared W.S. disabled.
W.S. filed for a divorce shortly after her diagnosis. The couple's property
settlement agreement (PSA), which was incorporated into their judgment of
divorce, provides that S.S. shall pay $2,000 a month in alimony to W.S. The
amount of alimony is based, in part, on W.S.'s inability to work due to her
disability. According to the PSA,
[t]he term of alimony shall be a term of [ten] years.
[S.S.] shall be entitled to rebut the presumption of
disability upon the [ten]-year anniversary of alimony
payments. In the event [W.S.] continues to be on
disability, this shall be presumed that alimony shall
continue beyond the [ten-]year term. However, this is
agreed to be a rebuttable presumption with the burden
upon [S.S.]
1
We identify the parties by their initials in order to preserve the confidentiality
of W.S.'s medical condition. R. 1:38-3(d)(3).
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2
In July 2017, S.S. moved for an order: (1) permitting him to engage in
discovery relating to whether W.S. remained disabled; (2) directing W.S. to
cooperate with his medical expert; and (3) terminating alimony as of the
conclusion of the ten-year term in the event he proves W.S. is no longer disabled.
In the alternative, S.S. moved for an order: (1) permitting him to engage in
discovery relating to W.S.'s employability; (2) requiring W.S. to cooperate with
a vocational expert; and (3) modifying alimony in the event he proves that W.S.
is able to earn income despite her disability. Defendant also sought an order:
(1) permitting discovery relating to W.S.'s alleged cohabitation; (2) directing
W.S. to file an updated case information statement (CIS); and (3) modifying
alimony based on changed circumstances relating to his income.
W.S. opposed the motion, certified that she remained disabled and unable
to work, and denied cohabitation with any adult. She cross-moved for an order
requiring S.S. pay his share of the children's medical expenses.
On September 22, 2017, the trial court issued an order denying without
prejudice S.S.'s motion to terminate alimony. The court ordered that both parties
may engage in discovery relating to W.S.'s disability and alleged cohabitation.
S.S. thereafter moved for an order: (1) finding W.S. in violation of
litigant's rights based on her deficient responses to discovery requests; (2)
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compelling W.S. to provide complete answers to outstanding discovery and a
current CIS; and (3) suspending alimony until resolution of his motion.
On September 28, 2018, the trial court issued an order finding W.S. to be
in violation of litigant's rights for failure to provide complete responses to
discovery concerning her income and expenses. The court found that it had
intended to permit discovery beyond the issue of W.S.'s continued disability and
cohabitation and that "ongoing alimony was the essential matter before the
[c]ourt" when it entered the order permitting discovery. The court explained
that "[i]t goes without saying that the financial status of each party would be the
focus of that discovery, as it is critical to any determination of alimony
extending beyond ten years." The court awarded S.S. $1200 in attorney's fees.
The court denied without prejudice S.S.'s motion to terminate or modify
alimony, but suspended alimony retroactive to May 13, 2018, the tenth
anniversary of the PSA. 2 In its decision, the court stated that "[i]f [W.S.] fully
and completely responds to [S.S.'s] discovery requests . . . she may move to
attempt to reinstate the alimony."
2
On October 3, 2018, the court filed an order correcting a scrivener's error in
the September 28, 2018 order noting May 18, 2013, instead of May 13, 2018.
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W.S. subsequently moved for reconsideration of the September 28, 2018
and October 3, 2018 orders. S.S. cross-moved for an order permanently
terminating alimony retroactive to May 13, 2018 and holding W.S. in violation
of litigant's rights for not providing complete responses to discovery.
On November 30, 2018, the court entered an order denying W.S.'s motion
for reconsideration. The court ordered W.S. to provide complete responses to
all outstanding discovery on or before January 31, 2019. In addition, the court
ordered W.S. to pay S.S. $11,210 for alimony that was collected after May 13,
2018 and denied S.S.'s cross-motion to permanently terminate alimony
retroactive to May 13, 2018.
On February 11, 2019, W.S. moved for post-judgment relief. She
requested that the November 30, 2018 order be vacated and that all suspended
alimony payments be made current. She argued, among other things, that the
suspension of alimony as a sanction for failing to answer discovery was
inappropriate. S.S. cross-moved for a permanent termination of alimony, a
finding that W.S. was in violation of litigant's rights, and a judgment requiring
the repayment by W.S. of $11,210 in alimony paid after May 13, 2018.
On September 26, 2019, the trial court entered an order: (1) reserving
decision on W.S.'s motion to reinstate alimony; (2) reserving decision on S.S.'s
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motion to terminate alimony permanently; (3) reserving decision with respect to
entry of a judgment requiring repayment by W.S. of $11,210; (4) denying W.S.'s
motion to vacate various provisions of the court's prior orders; (5) denying S.S.'s
motion to hold W.S. in violation of litigant's rights; and (6) directing W.S. to
provide complete responses to various outstanding discovery requests and an
updated CIS.
W.S. thereafter produced discovery responses and an updated CIS. She
requested reinstatement of alimony retroactive to May 13, 2018. S.S. objected,
arguing that W.S. had not cured her deficient discovery responses, that her CIS
was incomplete, and that alimony should not be reinstated without a hearing.
On May 12, 2020, the trial court issued an order: (1) granting W.S.'s
motion to reinstate alimony retroactive to May 13, 2018; (2) denying S.S.'s
cross-motion to terminate alimony retroactive to May 13, 2018; (3) denying
S.S.'s motion to compel W.S. to reimburse him $11,210 for alimony paid after
May 13, 2018; and (4) vacating, as moot, the prior award of attorney's fees.
In a written statement of reasons accompanying the order, the trial court
found that: (1) W.S. provided complete responses to all outstanding discovery
requests; (2) S.S. failed to make a prima facie showing of changed
circumstances, i.e., that W.S. is not disabled and unable to work, warranting a
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change in alimony; (3) because W.S. fully responded to all outstanding
discovery, the suspension of alimony retroactive to May 13, 2018, and the award
of attorney's fees, were no longer warranted; and (4) S.S. is bound by the terms
of the PSA, which require him to pay alimony after the conclusion of the initial
ten-year period absent a showing by him that W.S. is no longer disabled.
This appeal follows. S.S. argues the May 12, 2020 order should be
reversed because the trial court: (1) did not hold an evidentiary hearing with
respect to W.S.'s disability; (2) did not issue sufficient findings of fact and
conclusions of law; (3) failed to permit S.S. to take depositions; (4) improperly
limited discovery in other ways; (5) improperly vacated the suspension of
alimony retroactive to May 13, 2018, because that suspension was intended to
be a punishment for W.S.'s refusal to provide discovery; (6) improperly vacated
the award of attorney's fees; and (7) failed to follow the "law of the case"
established in prior orders.
II.
Our review of a Family Part order is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). "[W]e do not overturn those determinations unless the court
abused its discretion, failed to consider controlling legal principles or made
findings inconsistent with or unsupported by competent evidence." Storey v.
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Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). We must accord substantial
deference to the findings of the Family Part due to that court's "special
jurisdiction and expertise in family matters . . . ." Cesare, 154 N.J. at 413.
We defer to the judge's factual determinations, so long as they are
supported by substantial credible evidence in the record. Rova Farms Resort,
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). This court's
"[a]ppellate review does not consist of weighing evidence anew and making
independent factual findings; rather, [this court's] function is to determine
whether there is adequate evidence to support the" trial court's fact findings. See
Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div.
1999) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We review de novo
the court's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Twp.
of Manalapan, 140 N.J. 366, 378 (1995).
S.S.'s motion to terminate or modify his alimony obligation is based on
the PSA, the terms of which reflect the parties' settlement of W.S.'s complaint
for divorce. Settlement of matrimonial disputes is encouraged and highly valued
in our court system. Quinn v. Quinn, 225 N.J. 34, 44 (2016) (citing Konzelman
v. Konzelman, 158 N.J. 185, 193 (1999)). Settlement agreements are governed
by basic contract principles and, as such, courts should discern and implement
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the parties' intent. J.B. v. W.B., 215 N.J. 305, 326 (2013); Pacifico v. Pacifico,
190 N.J. 258, 265-66 (2007). "The court's role is to consider what is written in
the context of the circumstances at the time of drafting and to apply a rational
meaning in keeping with the 'expressed general purpose.'" Id. at 266 (citation
omitted).
The PSA's plain text provides that after a ten-year term of alimony, if W.S.
remains disabled there will be a rebuttable presumption that alimony will
continue. S.S. has the burden to rebut the presumption. This agreement is
similar in structure to the legal framework in which a party may seek termination
or modification of an alimony obligation based on changed circumstances.
Generally, the court is "authorized to modify alimony and support orders
'as the circumstances of the parties and the nature of the case' require." Halliwell
v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (quoting N.J.S.A.
2A:34-23). A party seeking a modification of his alimony and child support
obligations must demonstrate changed circumstances "as would warrant relief."
Lepis v. Lepis, 83 N.J. 139, 157 (1980). "A hearing is not required or warranted
in every contested proceeding for the modification of a judgment or order
relating to alimony." Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div.
1998); see also Lepis, 83 N.J. at 159 (holding that "a party must clearly
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demonstrate the existence of a genuine issue as to a material fact before a hearing
is necessary."). We review the trial court's modification decision for an abuse
of discretion. Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015).
The trial court did not err when it concluded that the PSA requires S.S. to
make a preliminary showing that there is a genuine dispute with respect to W.S.'s
ongoing disability before holding a hearing. Our review of the record reveals
no evidence offered by S.S. that W.S. no longer suffers from her disability. To
the contrary, W.S. continues to receive disability benefits because of the
deleterious effects the brain tumor has on her ability to work. S.S. offers only
his unsupported statement that surgery and treatment have rendered the tumor
unharmful to W.S., an assertion previously rejected by the court with respect to
prior applications by S.S. to terminate alimony and which is contrary to the
opinion reached by a medical expert retained by S.S. in 2012.
We also find no evidence in the record supporting S.S.'s claim that the
trial court precluded him from holding depositions. The trial court's September
22, 2017 order permits the parties to conduct depositions. There is no evidence
in the record that S.S. served a notice of deposition on W.S. or any other party
at any time during the two-and-a-half years between the September 22, 2017
order and entry of the May 12, 2020 order.
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Nor are we persuaded by S.S.'s argument that it was error for the trial
court to restore alimony retroactive to May 13, 2018, and vacate the award of
attorney's fees once W.S. completely responded to outstanding discovery. It is
evident from the record that the trial court suspended alimony and awarded
attorney's fees to coerce W.S. into responding fully to outstanding discovery.
While we do not have occasion to opine with respect to the validity of
suspending alimony and awarding attorney's fees for that purpose, we see no
abuse of the trial court's discretion in reinstating alimony retroactively and
vacating the attorney's fee award on the record before us.
To the extent we have not specifically addressed any of S.S.'s remaining
arguments, including his contentions with respect to the sufficiency of the trial
court's findings of fact and lack of adherence to the "law of the case," we
conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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