Po Dong v. Wei Li ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1984-22
PO DONG,
Plaintiff-Respondent,
v.
WEI LI,
Defendant-Appellant.
_______________________
Argued January 30, 2024 – Decided February 23, 2024
Before Judges Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-0382-19.
Bettina E. Munson argued the cause for appellant
(Lomurro Munson LLC, attorneys; Bettina E. Munson
and Christina Vassiliou Harvey, of counsel and on the
briefs; Sean M. Wirth, on the briefs).
Richard A. Outhwaite argued the cause for respondent
(Weinberger Divorce and Family Law Group, LLC,
attorneys; Richard A. Outhwaite, on the brief).
PER CURIAM
Defendant Wei Li appeals from the February 17, 2023 Family Part order,
denying reconsideration of a December 16, 2022 order that denied a plenary
hearing regarding a modification of her imputed income established in the
parties' marital settlement agreement (MSA) and an increase in plaintiff Po
Dong's alimony obligation based on changed circumstances. As defendant had
established a prima facie showing of changed circumstances, we reverse and
remand for a plenary hearing.
I.
The parties were married in November 1999 and share a son, born in May
2007, who is autistic and has special needs. In December 2018, the parties
divorced and incorporated into their judgement of divorce their MSA which
addressed alimony, child support, and parenting time.
The parties' MSA recognized that given the nature of their son's disability,
he may never be emancipated. The parties agreed plaintiff would pay limited
duration alimony for nineteen years. At the time of the divorce, alimony was
established on plaintiff's annual gross income of $238,000 and defendant's part-
time income of $1,400 per year. The parties recognized defendant's "language
skills, education, and training" required advancement and agreed to calculate
alimony with a two-year "step-down arrangement" to provide time for defendant
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to gain employment. Defendant was imputed an annual income of $10,000 for
the first two years and $40,000 thereafter.
The MSA included a lifestyle provision which stated:
The parties have been advised by their attorneys of the
case of Crews v. Crews, 164 N.J. 11 (2000)[,] in every
respect including the parties' respective right, after the
divorce, to enjoy a lifestyle reasonably comparable to
that enjoyed during the marriage. It is specifically
agreed between [h]usband and [w]ife that after
considering the equitable distribution of assets and the
support provisions contained herein, as well as their
respective abilities and obligations to provide for their
own support, that neither party can maintain a lifestyle
reasonably comparable to that enjoyed during the
marriage, but nevertheless accept the alimony
provisions set forth herein.
The parties did not designate a parent of primary residence as they agreed
to a fifty-fifty shared parenting schedule. At the time of the divorce, their son
was enrolled in middle school but was released in March of 2019 based on
behavioral issues. Three months later, following a period of homeschooling,
their son began attending a specialized school from 9:00 a.m. to 2:30 p.m. The
specialized school closed in March 2020 due to the COVID-19 pandemic and
remained closed until September 2021.
Almost one year after the parties' divorce, plaintiff permanently relocated
to California with his new wife for a new employment position. In April 2020,
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defendant filed a motion to relocate the parties' child to California. While the
matter was pending before the court, the parties consented to a best interests
evaluation and attended mediation. The parties eventually resolved parenting
time and child support. By way of a consent order, defendant was designated as
the parent of primary residence with their son remaining in New Jersey. The
agreement reduced plaintiff's parenting time to four weeks in the summer and
approximately one week for both winter and spring break. Plaintiff's child
support obligation was increased to $2,400 a month.
In 2021, plaintiff's income increased to $480,144.20. His income in 2020
was higher based on a sign-on bonus and moving credit. Defendant had not
obtained employment near the imputed income.
In August 2022, defendant moved to: modify her alimony based on the
plaintiff's increased income and decreased parenting time; modify her imputed
income; permit any modification to be retroactive; require discovery;
temporarily increase alimony pending a plenary hearing; create a second
litigation fund with plaintiff contributing seventy percent; and for the existing
litigation fund to be replenished by plaintiff. Plaintiff opposed and cross-moved
for the following relief: to deny defendant's motion; for reimbursement of
mediation fees; to enforce the defendant's imputed income in the MSA; to order
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defendant accompany their child during travel to California and pay a portion of
their travel expenses; and for attorney's fees and cost.
The judge's December 16 order denied defendant's motion entirely and
granted in part plaintiff's motion, enforcing defendant's imputed income
pursuant to the MSA. In her written statement of reasons, the judge noted
defendant argued that "the change in parenting responsibilities ha[d] impacted
her ability to hold a better job" and that "there [wa]s no way . . . she c[ould] get
a job earning $40,000 per year because of her time commitments to [their son]."
The judge stated:
The [c]ourt has reviewed the certifications of the
parties, the numerous exhibits, and the partie[s' c]ase
[i]nformation [s]tatements [(CIS)]and does not find that
defendant has met her burden regarding modifying the
alimony. She asks the court to consider husband's
newly increased income since he relocated to California
with his new wife and family and argues that the court
should impute no income to her, increase the alimony
to cover her expenses, and take away the tax shifting
which provided plaintiff with the ability to deduct the
alimony from his gross income.
On appeal, defendant raises a single argument, arguing the judge erred in
denying her request for a plenary hearing based upon her demonstration of a
prima facie change in circumstances. We agree.
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II.
"We accord deference to Family Part judges due to their 'special
jurisdiction and expertise in family [law] matters.'" Gormley v. Gormley, 462
N.J. Super. 433, 442 (App. Div. 2019) (alteration in original) (quoting Cesare v.
Cesare, 154 N.J. 394, 413 (1998)). Our scope of review of Family Part orders
is limited. Cesare, 154 N.J. at 411. A judge's findings "are binding on appeal
so long as their determinations are 'supported by adequate, substantial, credible
evidence.'" Gormley, 462 N.J. Super. at 442 (quoting Cesare, 154 N.J. at 411-
12). Generally, a Family Part judge's findings regarding the modification of
alimony "should not be vacated unless the court clearly abused its discretion,
failed to consider all of the controlling legal principles, made mistaken findings,
or reached a conclusion that could not reasonably have been reached on
sufficient credible evidence present in the record." J.E.V. v. K.V., 426 N.J.
Super. 475, 485 (App. Div. 2012). However, while "a family court's factual
findings are entitled to considerable deference, we do not pay special deference
to its interpretation of the law." Thieme v. Aucoin-Thieme, 227 N.J. 269, 283
(2016) (quoting D.W. v. R.W., 212 N.J. 232, 245 (2012)).
We also review orders denying reconsideration for abuse of discretion.
Granata v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016). A court
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abuses its discretion "when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissibl e
basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
"Alimony is an 'economic right that arises out of the marital relationship
and provides the dependent spouse with "a level of support and standard of
living generally commensurate with the quality of economic life that existed
during the marriage."'" Quinn v. Quinn, 225 N.J. 34, 48 (2016) (quoting Mani
v. Mani, 183 N.J. 70, 80 (2005)). "Parties to a divorce . . . may enter into
voluntary agreements governing the amount, terms and duration of alimony , and
such agreements are subject to judicial supervision and enforcement." Ibid.Matrimonial agreements are "'entitled to considerable weight with respect to
their validity and enforceability' in equity, provided they are fair and just,"
because they are "essentially consensual and voluntary in character." Dolce v.
Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen,
85 N.J. 638, 642 (1981)).
An alimony order establishes only the present support obligation and is
"always subject to review and modification on a showing of 'changed
circumstances.'" Cardali v. Cardali, 255 N.J. 85, 93 (2023) (quoting Lepis v.
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Lepis, 83 N.J. 139, 146 (1980)); Crews, 164 N.J. at 28. Pursuant to
N.J.S.A. 2A:34-23, an alimony order "may be revised and altered by the court
from time to time as circumstances may require." Amzler v. Amzler, 463 N.J.
Super. 187, 197 (App. Div. 2020). When a party moves for a reduction in
alimony, the judge undertakes a two-step inquiry. Crews, 164 N.J at 28. The
judge must first determine whether the moving party has made a prima facie
showing of changed circumstances. R.K. v. F.K., 437 N.J. Super. 58, 62 (App.
Div. 2014). A "prima facie showing is distinct from the final proofs that are the
basis for an adjudication on the merits; it is simply a threshold showing."
Cardali, 255 N.J. at 108. "Changed circumstances such as child maturation,
increases in need, employment, or child emancipation may result in
a modification of support." Miller v. Miller, 160 N.J. 408, 420 (1999).
Importantly, the moving party must demonstrate a change in circumstances from
those existing when the prior support award was fixed. Beck v. Beck, 239 N.J.
Super. 183, 190 (App. Div. 1990); see also Donnelly v. Donnelly, 405 N.J.
Super. 117, 127-29 (App. Div. 2009).
The second step requires that "the party seeking modification of an
alimony award 'must demonstrate that changed circumstances have substantially
impaired the [movant's] ability to support himself or herself.'" Crews, 164 N.J.
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at 28 (quoting Lepis, 83 N.J. at 157). "[T]he ability to support oneself must be
understood to mean the ability to maintain a standard of living reasonably
comparable to the standard enjoyed during the marriage." Ibid. It is clear that
"the marital standard of living is the measure for assessing initial awards of
alimony, as well as for reviewing any motion to modify such awards." Id. at 35.
After a party seeking an alimony modification has made a prima facie
showing, "a court may order discovery and hold a hearing to determine the
supporting spouse's ability to pay." Miller, 160 N.J. at 420. "Although equity
demands that spouses be afforded an opportunity to seek modification, the
opportunity need not include a hearing when the material facts are not in genuine
dispute." Lepis, 83 N.J. at 159. However, when a party has "clearly
demonstrate[d] the existence of a genuine issue as to a material fact," a hearing
is necessary. Ibid.III.
After a review of the record in view of the governing legal principles, we
are constrained to reverse. Plaintiff's move to California indisputably resulted
in defendant's significantly increased parenting time, which, in addition to her
added responsibility to homeschool their son for over eighteen months during
the pandemic, demonstrated a prima facie showing of changed circumstances.
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Specifically, defendant's parenting time with the parties' special needs son
increased by over thirty-five percent, and she certified that her increased
parenting responsibilities inhibited her employment capacity. The judge also
overlooked that after defendant's move, plaintiff gained greater parental
responsibility as the only parent in the state where the child resided. Notably,
the majority of plaintiff's modified parenting time occurred over four weeks in
August. Our Supreme Court elucidated that a parent's reasonable belief "that
she could take only employment positions that provided her with scheduling
flexibility so as to be responsive to her children's special needs should be fairly
considered." Crews, 164 N.J. at 36. The exchange of discovery and a plenary
hearing were warranted.
Sufficient credible evidence in the record demonstrates defendant
established a prima facie showing of a change in her parenting obligations
which, she claims, caused significant time limitations affecting her
employability. See Cardali, 255 N.J. at 109 ("[P]rima facie evidence is defined
as 'evidence that, if unrebutted, would sustain a judgment in the proponent's
favor.'" (quoting Baures v. Lewis, 167 N.J. 91, 118 (2001), overruled on other
grounds by Bisbing v. Bisbing, 230 N.J. 309 (2017))). The extent of the effect
on defendant's employability caused by the increased parenting time and greater
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responsibilities is materially disputed. Interconnectedly, plaintiff's increased
income in relation to the parties' marital standard of living is also materially in
dispute. Full discovery was warranted on these issues.
We also part ways with the judge's reconsideration findings that plaintiff's
substantial reduction in parenting time due to his relocation to California was
not a material change and that defendant "had [two] years to improve her
condition, during which most of that time [plaintiff] was still in New Jersey and
she had not made any effort to do so." Although the December 2018 MSA
provided defendant a two-year step-down before her imputed income rose to
$40,000, the judge failed to fully consider that during that period, the parties'
son was homeschooled for approximately three months after his removal from
school due to his increased behavioral issues.
Pursuant to N.J.S.A. 2A:34-23(c), "[a]n award of alimony . . . may be
modified based either upon changed circumstances, or upon the nonoccurrence
of circumstances that the court found would occur at the time of the award,"
with the court's required reconsideration of the statutory alimony factors. As
defendant established sufficient factual predicates surrounding changed
circumstances, the judge was required to consider the alimony factors. We
conclude the judge did not accord appropriate consideration to the factors
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established in N.J.S.A. 2A:34-23(b) as she did not sufficiently address "(7) [t]he
parental responsibilities for the children" or "(8) [t]he time and expense
necessary to acquire sufficient education or training to enable the party seeking
maintenance to find appropriate employment." These factors are to be addressed
at a plenary hearing.
Further, as defendant correctly argues, the alimony factors do not include
consideration of child support. The judge's partial reasoning that "child support
increased by approximately $2,000 . . . a month plus an increase in
extracurricular contributions," "the child support was already increased," and
"the child ha[d] already benefitted from his father's 'increased fortunes'" was
erroneous. Case law is clear that child support belongs to the child, and not the
custodial parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995). Child support
amounts should not have been considered in determining whether defendant had
met her burden of showing a change in circumstances.
Lastly, we disagree with the judge's finding that the standard of
defendant's lifestyle was not reduced in observing that "[i]t [wa]s sufficient to
simply review the CIS, see that the numbers [we]re comparable to what both
parties were spending when married, see that [defendant] even ha[d] spending
ability to send her mother $4[,]800 per year to support her in China." As our
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Supreme Court elucidated in Crews, "the CIS information generally reflects a
more current financial picture of the parties. It does not necessarily provide
information reflective of the standard of living enjoyed during the marriage. "
164 N.J. at 27. Here, the parties' MSA provided "that neither party can maintain
a lifestyle reasonably comparable to that enjoyed during the marriage."
Therefore, the judge's alimony and lifestyle reasoning, which was based on a
review of defendant's CIS at the time of the divorce compared to her current
CIS, to deny a plenary hearing was misplaced.
To the extent that we have not addressed the parties' remaining arguments,
it is because our disposition makes it unnecessary, or they lack sufficient merit
to be discussed in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for a plenary hearing consistent with this opinion.
We do not retain jurisdiction.
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