NOT FOR PUBLICATION WITHOUT THE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-3326-15T1
JON ANDREW DRESSNER,
Plaintiff-Appellant,
v.
LISA MARIE DRESSNER,
Defendant-Respondent.
___________________________
Argued August 15, 2017 – Decided August 28, 2017
Before Judges Manahan and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-1886-09.
Natalie L. Thompson argued the cause for
appellant (Gruber, Colabella, Liuzza &
Thompson, attorneys; Mark Gruber and Ms.
Thompson, on the brief.)
Patrick T. Collins argued the cause for
respondent (Graham Curtin, PA, attorneys; Mr.
Collins, on the brief.)
PER CURIAM
Plaintiff Jon Dressner appeals from certain provisions of two
post-divorce-judgment orders that addressed his requests to
terminate or modify his alimony and child support obligations.
Specifically, plaintiff objects to the effective dates of the
termination and modification of his obligations, the designation
of defendant, Lisa Dressner, as the parent of primary residential
custody, the modification of his child support obligation, and the
denial of his request for attorney and expert fees. Having
reviewed these contentions and the written opinions of the Family
Part judge, we affirm.
I.
The parties were married in 1994 and divorced in 2009. They
have four children, who are currently ages nineteen, eighteen,
fifteen and fifteen. At the time of their divorce, the parties
entered into a property settlement agreement (PSA). Under the
PSA, the parties, among other things, agreed (1) to essentially
share equal parenting time with their children; (2) plaintiff
would pay defendant alimony for ten years in the amount of $3333
per month; and plaintiff would pay defendant child support of $277
per month. Those support provisions were premised on plaintiff
earning $198,184 per year and defendant earning $64,780 per year.
In August 2012, plaintiff lost his job as a vice president
of marketing. After making efforts to obtain comparable
employment, plaintiff took a position with a family-owned business
where, by 2015, he was being paid $85,000 per year. Plaintiff
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also earned approximately $8500 per year from a consulting business
he had established.
On December 13, 2013, plaintiff sent defendant a letter
notifying her that he was seeking to suspend his support
obligations. Thereafter, on January 12, 2014, plaintiff filed a
motion to suspend his alimony payments and to terminate his child
support obligation. Plaintiff also sought other relief. Defendant
opposed that motion and cross-moved for an award of attorney's
fees.
In an order entered on February 14, 2014, the Family Part
found that plaintiff had made a prima facie showing of a change
in circumstances, allowed discovery, and set the matter down for
a plenary hearing. The February 14, 2014 order also provided that
"[a]ny modification of child support shall be retroactive to the
date of filing of this application."
The court conducted a three-day plenary hearing in late 2014
and early 2015. Both parties testified and plaintiff called an
employment expert and his aunt, who at the time ran the family
business for which he was working. Following the hearing, the
parties submitted additional briefs.
On July 16, 2015, Judge Christopher Rafano issued an order
and supporting written opinion. Among other things, Judge Rafano
(1) granted plaintiff's application to terminate his alimony
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obligation and made that termination effective July 16, 2015; and
(2) denied both parties' requests for attorney's fees. The judge
found that plaintiff had lost his job in August 2012, had made
diligent efforts to find comparable work, and ultimately had taken
employment with a family business. The judge also found that
plaintiff was currently earning approximately $93,500 per year and
defendant was earning approximately $131,000 per year. Thus,
Judge Rafano terminated plaintiff's alimony obligation, but after
considering the "equities" made that termination effective July
16, 2015 - - the date of the order. The judge also denied both
parties' requests for attorneys' fees reasoning that both parties
"acted in good faith."
In the July 16, 2015 order, Judge Rafano denied without
prejudice plaintiff's request to terminate his child support
obligation. The judge then directed the parties to submit
additional information and proofs, which the parties did.
On February 29, 2016, Judge Rafano issued an order addressing
plaintiff's request to terminate his child support obligation.
The judge also issued child support guidelines and again supported
that order with a written statement of reasons.
The judge modified, but did not terminate plaintiff's child
support. Specifically, the judge reduced plaintiff's child
support from $277 per month to $19 per week (that is, $82.33 per
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month), effective July 16, 2015. In his supporting statement of
reasons, the judge found that defendant should be designated as
the parent of primary residential custody because the children
attended school in the district where defendant resided. The
judge also decided not to make adjustments to the child support
for controlled expenses, as allowed in Wunsch-Deffler v. Deffler,
406 N.J. Super. 505 (Ch. Div. 2009). In that regard, Judge Rafano
reasoned that it was better to consider only the facts that were
"undisputed[.]" Finally, Judge Rafano explained that he
considered the facts and equities of this case and decided to make
the reduction in child support effective as of July 16, 2015.
II.
Plaintiff now appeals from certain provisions in the orders
issued on July 16, 2015 and February 29, 2016. Specifically,
plaintiff makes five arguments contending that the Family Part
erred in (1) designating defendant as the parent of primary
residential custody; (2) not adjusting child support for
controlled expenses; (3) failing to terminate child support as of
the date plaintiff filed his motion (that is, January 12, 2014);
(4) not terminating his alimony obligation retroactively; and (5)
not awarding him attorney and expert fees. We reject these
arguments and affirm substantially for the reasons explained by
Judge Rafano in the written opinions he issued on July 16, 2015
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and February 29, 2016. We add a few comments focusing on our
standard of review.
Our scope of review of a Family Part decision is limited.
"Whether an alimony obligation should be modified based upon a
claim of changed circumstances rests within a Family Part judge's
sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App.
Div. 2006). Similarly, we review an application to modify a child
support obligation for abuse of discretion. See Pascale v.
Pascale, 140 N.J. 583, 594 (1995) (explaining, "trial courts have
discretion in determining child support"). Generally, we will not
disturb the Family Part's decision on support obligations "unless
it is 'manifestly unreasonable, arbitrary, or clearly contrary to
reason or to other evidence, or the result of whim or caprice.'"
Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)
(quoting Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div.
2001)).
In reviewing an order entered after a fact-finding hearing,
we defer to the factual findings "supported by adequate,
substantial, credible evidence." Spangenberg v. Kolakowski, 442
N.J. Super. 529, 535 (App. Div. 2015) (quoting Gnall v. Gnall, 222
N.J. 414, 428 (2015)). Thus, reversal is proper only when the
trial court's factual findings are "so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably
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credible evidence as to offend the interests of justice[.]" Ibid.
(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
N.J. 474, 484 (1974)). We review de novo a trial court's
determination on questions of law. Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013).
Regarding the effective date of the modification of
plaintiff's child support obligation, we note that
[n]o payment or installment of an order for
child support, or those portions of an order
which are allocated for child support
established prior to or subsequent to the
effective date of P.L. 1993, c. 45 ([N.J.S.A.]
2A:17-56.23(a)],[1] shall be retroactively
modified by the court except with respect to
the period during which there is pending
application for modification, but only from
the date the notice of motion was mailed
either directly or through the appropriate
agent.
[N.J.S.A. 2A:17-56.23a.]
The plain language of this statute prohibits retroactive
modification of a child support obligation to a date prior to the
mailing of the notice of motion for such a modification. "There
is no analogous statutory provision that prohibits retroactive
reduction of alimony payments." Walles v. Walles, 295 N.J. Super.
498, 514 (App. Div. 1996). With the exception of N.J.S.A. 2A:17-
56.23a, "the retroactivity decision is left to the sound discretion
1
This amendment took effect on February 18, 1993.
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of the trial judge." Ibid. (citing Brennan v. Brennan, 187 N.J.
Super. 352, 357 (App. Div. 1982)).
Here, the notice of motion was filed on January 12, 2014, and
the child support obligation was modified effective July 16, 2015,
by an order entered on February 29, 2016. Thus, the Chancery
Court's order did not violate the provisions of N.J.S.A. 2A:17-
56.23a and we discern no abuse of discretion in the decision to
establish July 16, 2015, as the effective date of the modification
of plaintiff's child support obligation.
Regarding plaintiff's request for counsel fees and costs, we
review a trial judge's decision on an application for fees under
an abuse of discretion standard. United Hearts v. Zahabian, 407
N.J. Super. 379, 390 (App. Div.) (citing Masone v. Levine, 382
N.J. Super. 181, 193 (App. Div. 2005)), certif. denied, 200 N.J.
367 (2009). Rule 5:3-5(c) provides that
[s]ubject to the provisions of [Rule] 4:42-
9(b), (c), and (d), the court in its
discretion may make an allowance, both
pendente lite and on final determination, to
be paid by any party to the action, including,
if deemed to be just, any party successful in
the action, on any claim for divorce,
dissolution of civil union, termination of
domestic partnership, nullity, support,
alimony, custody, parenting time, equitable
distribution, separate maintenance,
enforcement of agreements between spouses,
domestic partners, or civil union partners and
claims relating to family type matters
. . . . In determining the amount of the fee
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award, the court should consider, in addition
to the information required to be submitted
pursuant to [Rule] 4:42-9, the following
factors: (1) the financial circumstances of
the parties; (2) the ability of the parties
to pay their own fees or to contribute to the
fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior
to trial; (4) the extent of the fees incurred
by both parties; (5) any fees previously
awarded; (6) the amount of fees previously
paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were
incurred to enforce existing orders or to
compel discovery; and (9) any other factor
bearing on the fairness of an award.
Plaintiff argues that defendant acted in bad faith by pursuing
a plenary hearing "without a good faith basis." Plaintiff also
argues that defendant did not dispute that there had been changed
circumstances since the parties executed the PSA. Further,
plaintiff argues that the gross disparity in the parties' incomes
should have resulted in a settlement without the necessity of a
plenary hearing.
Judge Rafano, however, found that both parties had acted in
good faith in pursuing their positions. He stated that
[p]laintiff brought forth a claim for
reduction or termination of alimony on the
reasonable premise that he is making a salary
which is well below the amount he was making
at his previous job. Likewise, the [d]efendant
reasonably argued that she should retain the
benefit of the bargain struck in the parties'
judgment of divorce and questioned whether the
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[p]laintiff had fully explored all options
before accepting his current job.
The court's conclusion that both parties had acted in good faith
was supported by substantial credible evidence in the record.
Having reached this conclusion, the court did not abuse its
discretion in declining to award counsel fees or costs to either
party.
In short, Judge Rafano considered and expressly addressed
each of the arguments that plaintiff now presents on appeal. The
facts found by Judge Rafano are supported by substantial credible
evidence in the record. Moreover, we discern no abuse of
discretion or error in Judge Rafano's application of the law to
the facts he found and the equities he considered.
Affirmed.
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