TAXMAN V. TAXMAN A-4117-09T4 June 14, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4117-09T4

BRIAN TAXMAN,

Plaintiff-Appellant,

v.

PEGGY TAXMAN,

Defendant-Respondent.

Submitted May 23, 2011 - Decided June 14, 2011

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-16647-76.

Stephen E. Klausner, attorney for appellant.

Tanenbaum Law, LLC, attorneys for respondent (Steven M. Tanenbaum, of counsel and on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Brian Taxman appeals an order of the Family Part dated April 1, 2010. The order denied plaintiff's motion to decrease or eliminate the alimony payable each week to his former wife, defendant Peggy Taxman. The order also granted defendant's cross-motion to recover from plaintiff $750 in allegedly-owed arrears.

For the reasons that follow, we affirm the trial court's decision to leave plaintiff's weekly alimony obligation undisturbed. However, we remand the court's ruling as to the supposed arrears for the additional development of proofs.

We briefly summarize the pertinent facts and the parties' contentions. The parties were divorced in September 1977, each of them having been represented by counsel. As part of the divorce judgment, the parties incorporated and agreed to be bound by a separation agreement that they had previously executed. Under that agreement, plaintiff undertook an obligation to pay defendant $250 per week in permanent alimony until she either dies or remarries. The parties further agreed that the alimony obligation would continue even if defendant, who was not working at the time of the divorce, obtained employment in the future. On the other hand, defendant waived the right to seek any increase in the alimony amount, even if plaintiff's future income substantially rose.

Following the divorce, defendant relocated to Missouri with the children.¹ After the children eventually moved out of her residence, defendant became self-employed and opened a beauty salon. She is now approaching the age of eligibility for Social Security.

Starting about five years prior to the motions at issue in this appeal, defendant has been renting a portion of her house to a tenant. The tenant has provided her with rent of approximately $4200 each year. Defendant contends that she uses that rental income to subsidize her health insurance costs.

In the meantime, plaintiff left his job with Eastman Kodak in 1978. Since that time he has operated his own business in New Jersey. The business has expanded over the years, although it has not been as profitable during the recent economic recession. The financial information provided by plaintiff to the trial court reflects that his gross income in 2007 was $52,000, substantially above the gross annual income of $16,500 that he was earning in 1977 when the parties were divorced.

In January 2010, plaintiff filed a motion in the Family Part seeking to eliminate or reduce his continuing alimony obligation, based upon a contention of a material change in the parties' respective financial circumstances. Plaintiff asserted that because of two heart attacks and other health problems, his income had declined. He also claimed that his former wife was cohabitating with another individual, and that such cohabitation eliminates his alimony obligation as a matter of law. Additionally, plaintiff noted that defendant was earning significant income from her business, that she no longer had to support the children, and that she was eligible to collect Social Security benefits.

In her responding papers provided to the trial court, defendant indicated that the alleged cohabiter was merely the tenant residing in her basement. She provided certifications to attest that she had no personal relationship whatsoever with the tenant. Defendant further explained that she was not yet collecting Social Security because there would be substantial penalties for early withdrawal of such benefits. She asserted that she was still entitled to the fixed $250 in alimony each week under the explicit terms of the divorce judgment, and that her future earnings were specifically contemplated as something that would not affect her ongoing right to those alimony payments.

In her cross-motion, defendant contended that plaintiff owed her $750 in arrears for unpaid alimony. She did not provide the court with a basis for this calculation, simply noting that the she had obtained the arrears figure from the Probation Department.

Considering the proofs submitted and the parties' arguments, the Family Part judge concluded that plaintiff had not established a prima facie case of a change in circumstances, as required under Lepis v. Lepis, 83 N.J. 139 (1980), to justify relief from the $250 weekly alimony obligation. Because such a prima facie showing was lacking, the judge did not conduct an evidentiary hearing on the alimony issue. The judge also found plaintiff's claims of cohabitation inadequately substantiated, and he declined to conduct an evidentiary hearing on that issue as well. Consequently, plaintiff's motion was denied.

The judge did, however, grant defendant's cross-motion and order that plaintiff pay her $750 in arrears. To implement that decision, the judge increased plaintiff's alimony payment an additional twenty-five dollars per week until the arrears were paid off.

Plaintiff now appeals the trial court's rulings denying his motion and granting his former wife's cross-motion. He argues that the court mistakenly exercised its discretion in not abating his alimony obligation in light of his financial and medical problems. He also contends that the court's disposition of the cohabitation issue was erroneous, and that a plenary hearing was warranted. Lastly, plaintiff argues that the cross-motion was granted in error, and that there is no competent proof that he was in arrears.

In assessing plaintiff's contentions, we note that the scope of our review of such rulings in matrimonial cases is limited. Generally speaking, we accord considerable deference to the decisions of Family Part judges, and do not disturb such decisions where there is substantial credible evidence in the record to support them. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In particular, the decision as to whether or not to modify alimony is ordinarily committed to the sound discretion of the trial court.Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993).

Applying these deferential review standards here, we affirm the denial of plaintiff's motion for alimony modification, essentially for the reasons stated within the judge's order dated April 1, 2010. We add only a few comments.

As a procedural matter, plaintiff's motion was deficient because, although he supplied some financial information with his moving papers, such as corporate tax returns for his business, he did not serve a completed Family Case Information Statement as required under Rule 5:5-4(a), nor his personal tax returns or an itemization of his actual income, assets, and expenses. Furthermore, on the merits, we agree with the trial judge that plaintiff has not set forth a prima facie basis for relief under Lepis, supra, 83 N.J. at 157. That conclusion is particularly sound, in light of the divorce judgment's explicit declaration that defendant's future earnings would not trigger an alimony reduction, and the fact that the weekly alimony has remained fixed at $250 since 1977 without any cost of living adjustment. Although we appreciate that plaintiff's company has evidently suffered a recent downturn and that he has had health problems, modest fluctuations in income, particularly over a short period of time, do not automatically require alimony to be recalibrated. See Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006).

We also agree with the trial judge that plaintiff failed to make a prima facie showing that defendant is in an economically-intertwined relationship of cohabitation with her tenant. At best, plaintiff only presented a situation of common residency, which was effectively placed into context by defendant's responding certifications. See Konzleman v. Konzelman,158 N.J. 185, 202 (1999).

Defendant's cross-motion respecting the alleged arrears, however, is not supported by substantial credible evidence in the present record. Defendant's certification in support of her motion contained no facts upon personal knowledge, as required under Rule 1:6-6, but instead made a second-hand assertion that "[a]ccording to Probation" the sum of $750 in arrears was owed to her. Plaintiff disputes that amount. There are no payment ledgers or other back-up documents supplied to substantiate the $750 figure. Given the paucity of evidence in the record on the subject, the issue must be remanded for further consideration and the development of appropriate proofs. If, in fact, it turns out that the $750 amount was incorrect, corresponding credits should be given to plaintiff for any extra amounts that he has paid since the April 1, 2010 order was issued.

Affirmed in part and remanded in part, consistent with this opinion. Jurisdiction is not retained.

1 At the time of the divorce judgment, the children were unemancipated, but they have long since been emancipated.