DEANA CYNAR VS. LOUIS CEREFICE (FM-10-0159-15, HUNTERDON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4137-16T1

DEANA CYNAR,

Plaintiff-Respondent/
Cross-Appellant,

v.

LOUIS CEREFICE,

Defendant-Appellant/
Cross-Respondent.
______________________________

Submitted June 4, 2018 – Decided August 7, 2018

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon
County, Docket No. FM-10-0159-15.

Carter, Van Rensselaer and Caldwell, attorneys
for appellant/cross-respondent (William J.
Caldwell, on the briefs).

Einhorn, Harris, Ascher, Barbarito & Frost,
attorneys for respondent/cross-appellant
(Kristi L. Terranova, of counsel and on the
brief; Jessie M. Mills and Matheu D. Nunn, on
the brief).

PER CURIAM
 Defendant Louis Cerefice appeals from two orders of the Family

Part dated February 22 and April 28, 2017, and plaintiff Deana

Cynar cross-appeals from the April 28, 2017 order. For the reasons

that follow, we affirm the trial court's decision.

We discern the following facts from the record on appeal.

The parties were married in 2005 and divorced on April 17, 2015,

after entering into a marital settlement agreement (MSA)

incorporated into a Dual Final Judgment of Divorce. Under the

MSA, defendant was obligated to pay plaintiff limited duration

alimony of $30,000 per year, payable in $1250 bi-monthly

installments, for five years. The alimony was based on plaintiff

earning approximately $88,000 per year and defendant earning

approximately $200,000 per year.

In May 2016, defendant learned his employment would be

terminated effective May 31, 2016. The employer agreed to pay

severance of $185,525 through November 2016. He also received a

payment of $28,255.67 for unpaid bonuses and was eligible for

another lump sum payment for unused vacation days.

On October 25, 2016, defendant moved to suspend his alimony

obligation because he was unemployed. On December 1, 2016,

plaintiff cross-moved asking the court to deny defendant's motion

in its entirety, enforce the MSA, and for attorney's fees. She

also advised the court that she recently lost her job.

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 While his motion was pending, defendant made no alimony

payment for December 2016. For January and February 2017,

defendant, on his own initiative, paid a reduced alimony of $833

per month.

However, by December 9, 2016, defendant had obtained new

employment with a salary of $108,000 and bonus potential. He did

not notify the court or submit an updated certification. Rather,

plaintiff's counsel informed the court by letter dated February

7, 2017. The letter also advised the court that plaintiff found

new employment with a $75,000 salary.

The trial court denied defendant's motion to suspend his

alimony obligation and awarded plaintiff $1000 in partial

attorney's fees on February 22, 2017. The court explained

defendant did not show changed circumstances warranting a

suspension of his alimony obligation, noting his severance only

recently ran out in November 2016. The court further noted

defendant obtained a new job between filing his motion and oral

arguments, but he did not inform the court.

On March 6, 2017, defendant moved for reconsideration or

alternatively, to stay the February 22 order. Plaintiff cross-

moved for, among other things, attorney's fees. Defendant filed

a reply certification, wherein he advised the court he accepted

another new job with a base salary of $172,000.

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 On April 28, 2017, the court denied defendant's motion and

awarded plaintiff an additional $2500 in attorney's fees. The

judge determined defendant did not satisfy his burden for

reconsideration pursuant to Rule 4:49-2. The court also further

explained its reasoning for denying defendant's initial motion to

suspend his alimony obligation, stating the motion was premature

because although defendant's job ended in May 2016, he received

severance equal to his full salary through November 2016. The

court found defendant's employment circumstances were only

temporary and did not warrant modification. Defendant failed to

present significant evidence of his job search efforts and did not

provide the court with information regarding his newly obtained

job. The court granted plaintiff's request for additional

attorney's fees because defendant's motion was premature and

defendant violated litigant's rights by engaging in self-help and

failing to pay the appropriate alimony.

This appeal followed. Our scope of review of Family Part

orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998).

Due to "the special jurisdiction and expertise of the family

court," we defer to factual determinations made by the trial court

as long as they are "supported by adequate, substantial, and

credible evidence in the record." Milne v. Goldenberg, 428 N.J.

Super. 184, 197 (App. Div. 2012) (citing Cesare, 154 N.J. at 413).

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We will not disturb the fact-findings of the trial judge unless

"they are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend

the interest of justice." Abouzahr v. Matera-Abouzahr, 361 N.J.

Super. 135, 151 (App. Div. 2003) (quoting Rova Farms Resort, Inc.

v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "[D]eference

is especially appropriate 'when the evidence is largely

testimonial and involves questions of credibility.'" MacKinnon

v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, 154 N.J.

at 412). Absent compelling circumstances, we may not substitute

our judgment for that of the trial court, which has become familiar

with the case. Schwartz v. Schwartz, 68 N.J. Super. 223, 232

(App. Div. 1961).

I.

Defendant argues now that on the initial return date of his

motion, his annual income had substantially decreased to mere

unemployment benefits, which impaired his ability to support

himself. He contends he was unemployed for over six months since

he was terminated in May 2016 and did not obtain a new job until

December 2016. Defendant contends the motion judge erred by

declining to hold a plenary hearing because there was prima face

proof of changed circumstances. We disagree.

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 Under the MSA, defendant agreed to pay plaintiff limited

duration alimony in the sum of $30,000 per year, payable in $1250

bi-monthly installments, for five years. It further provided the

alimony obligation "shall be subject to modification or suspension

. . . as permitted by New Jersey statutory or case law."

Accordingly, the onus was on defendant to demonstrate changed

circumstances in order to suspend his alimony obligation. J.B.

v. W.B., 215 N.J. 305, 327 (2013) (citing Lepis v. Lepis, 83 N.J.

139, 146-48 (1980)) ("When a party to a comprehensive negotiated

[MSA] seeks to modify any support obligation, that party must meet

the threshold standard of changed circumstances."). Changed

circumstances that justify an increase or decrease of support

include an increase in the cost of living, an increase or decrease

in the income of the supporting or supported spouse, cohabitation

of the dependent spouse, illness or disability arising after the

entry of the judgment, and changes in federal tax law. Lepis, 83

N.J. at 151. Temporary circumstances are an insufficient basis

for modification. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing

Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)).

The decision to modify or suspend an alimony obligation "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) (citations omitted). "There is, of course,

6 A-4137-16T1
no brightline rule by which to measure when a changed circumstance

has endured long enough to warrant a modification of a support

obligation." Id. at 23. Rather, "such matters turn on the

discretionary determinations of Family Part judges, based upon

their experience as applied to all the relevant circumstances

presented, which we do not disturb absent an abuse of discretion."

Ibid. The threshold issue in determining whether to hold a plenary

hearing is if "the movant has made a prima facie showing that a

plenary hearing is necessary." Hand v. Hand, 391 N.J. Super. 102,

106 (App. Div. 2007).

The trial court's determination defendant failed to

illustrate a prima facie case of changed circumstances warranting

a plenary hearing is supported by competent evidence in the record.

The record reveals defendant continued to receive substantially

the same income as contemplated in the MSA. As such, he has not

shown an inability to pay and the judge's sound decision to deny

him a plenary hearing was not an abuse of discretion.

II.

We further reject defendant's assertion that the motion judge

abused her discretion in awarding plaintiff partial attorney's

fees. The record demonstrates his bad faith. However, we also

reject plaintiff's cross-appeal, arguing the motion judge should

have awarded her full attorney's fees because defendant's motion

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for reconsideration was baseless, defective, and filed in bad

faith. Plaintiff argues defendant earns significantly more money

than her, and while he had a period of unemployment, he continued

to receive severance equal to his previous salary. She contends

that he improperly engaged in self-help in modifying alimony,

twice failed to inform the court of new employment, purposely

omitted relevant information from his applications to the court,

filed a motion for changed circumstances while still receiving his

base salary in the form of severance, and filed a motion for

reconsideration without any basis.

"An award of counsel fees is only disturbed upon a clear

abuse of discretion." J.E.V. v. K.V., 426 N.J. Super. 475, 492

(App. Div. 2012) (quoting City of Englewood v. Exxon Mobile Corp.,

406 N.J. Super. 110, 123 (App. Div. 2009)). We "will disturb a

trial court's determination on counsel fees only on the 'rarest

occasions, and then only because of a clear abuse of discretion.'"

Ibid. (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Rule

4:42-9(a)(1) states "[n]o fee for legal services shall be allowed

. . . except [i]n a family action . . . pursuant to Rule 5:3-

5(c)."

Here, plaintiff requested an award of $5881.25 in counsel

fees and costs for defendant's motion for reconsideration. The

motion judge awarded plaintiff $1000 in partial attorney's fees

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for defendant's initial motion and an additional $2500 for the

motion for reconsideration. Plaintiff has not demonstrated the

motion judge abused her discretion in awarding partial attorney's

fees.

Affirmed.

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