NOT FOR PUBLICATION WITHOUT THE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-4672-17T4
COLEEN FIORE,
Plaintiff-Respondent,
v.
PETER FIORE,
Defendant-Appellant.
______________________________
Submitted May 27, 2020 – Decided July 6, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-2115-09.
DiRienzo & DiRienzo, PA, attorneys for appellant
(Joseph DiRienzo, on the brief).
Drisgula & Thatcher, LLC, attorneys for respondent
(Candice L. Drisgula and Alisa H. Thatcher, on the
brief).
PER CURIAM
Defendant Peter Fiore appeals from a January 2, 2018 Family Part order
that denied his motion to terminate or reduce his alimony obligation; eliminate
or reduce child support; reimburse him for losses sustained due to child
dependency tax deductions taken by plaintiff for a portion of his son's college
expenses; and for the Mercury Mountaineer lease and buyout payments. He also
appeals from a May 8, 2018 order denying reconsideration and granting the
parties' motions to fix his alimony arrears in accordance with the January 2,
2018 order.
After our careful review of the record, we affirm except to remand to the
Family Part judge for reconsideration of the child support termination date.
I.
The following factual history is derived from the motion record. After
almost twenty-one years of marriage, plaintiff Colleen Fiore and defendant
divorced in January 2010. They had one child, Peter, born in 1996. The final
dual judgment of divorce (JOD) incorporated their Matrimonial Settlement
Agreement (MSA), which resolved issues arising from the dissolution of the
marriage.
The MSA provided, among other things, that defendant, a college
graduate, would pay plaintiff permanent alimony of $31,400 per year or $550
A-4672-17T4
2
per week, plus two additional $1400 payments in June and October each year.
Alimony was premised upon defendant earning "approximately $80,000 from
his Fire Department employment" and an imputed "$25,000 per year income
from Environmental Pest Control LLC (termite business) for an imputed weekly
income of [$2019]." Plaintiff was imputed an income of $16,640 annually or
$320 per week. The MSA also provided that upon defendant's retirement from
the fire department, he could apply for a recalculation of alimony and plaintiff
"does not consider such retirement a change of circumstances and he will be le ft
to his proofs."
At the time of divorce, defendant was actively employed as a firefighter
at the Rahway Fire Department and working in his termite business. Plaintiff
was a stay-at-home mom during the marriage and worked part-time for a florist.
At times she was unemployed due to health issues. Plaintiff has a high school
education and no significant vocational training.
Defendant agreed to pay $154 per week for child support until Peter was
emancipated. Peter was enrolled at Montclair State University when the parties
divorced. The parties agreed that defendant had the right to claim the child as a
dependency deduction on his federal and state returns for tax year 2009. The
MSA included a handwritten provision that indicated the parties might change
A-4672-17T4
3
this section should the need arise. Defendant argued he was entitled to claim
Peter as a dependent on his 2010 and 2012 tax returns and that plaintiff
improperly took the deductions in those years. Consequently, defendant claimed
he was required to pay additional taxes of $1500 in 2010 and $3000 in 2012.
After the parties divorced, defendant continued working as a firefighter at
the Rahway fire department, which he joined in 1989. He also continued to
operate his termite business. The service requirement for retirement at the fire
department was twenty-five years. Defendant contended it was the parties'
mutual understanding he would retire after twenty-five years of service at the
age of fifty-nine.
During his time with the department, defendant received between 300 and
350 fire calls and responded to three to five active scenes per month. H is
responsibilities included entering burning buildings, carrying the hose line into
fires, and assisting victims out of cars and buildings.
In 2009, defendant suffered an asthma attack while responding to a
structure fire. He was evaluated by the city's doctors who referred him to Dr.
Adam J. Rowen, a pulmonologist. Dr. Rowen prescribed prednisone and
corticosteroids, which provided short-term relief and enabled defendant to
continue working as a firefighter. Over time, defendant claimed his condition
A-4672-17T4
4
progressively worsened and by 2014, he complained of persistent shortness of
breath, which prevented him from performing his duties as a firefighter.
In December 2014, defendant advised plaintiff he planned to retire as a
firefighter after surpassing twenty-five years of service, attempted pulmonary
rehabilitation, and unsuccessful use of medications. According to defendant, he
had continued working despite his medical issues in order to receive his full
sixty-five percent pension benefit. Because of his seniority, he was able to "take
it easy a little bit."
Thereafter, defendant consulted Dr. John Penek, a pulmonologist, for a
second opinion. After an evaluation with Dr. Penek on June 5, 2015, defendant
was diagnosed with moderately severe obstructive lung disease—"a category of
lung problems associated with air flow on expiration only." Dr. Penek
conducted a pulmonary function study, which revealed defendant was operating
at sixty-nine percent normal lung function for a person of his age. To a degree
of medical certainty, Dr. Penek opined "that [defendant] was permanently
disabled from functioning as a firefighter." Dr. Penek concluded that defendant
was incapable of performing his job "safely," and retirement was necessary.
In 2015, the termite business had a net income of $32,353 and in 2016, a
net income of $24,989, which defendant explained was negatively impacted by
A-4672-17T4
5
his mother's passing. Currently, defendant's only assets are his business income
and firefighter's pension. He does not own any real property or any other assets.
In January 2015, defendant reiterated his plans to retire to plaintiff, but the
parties could not agree on a modification of alimony.
On September 22, 2015, defendant filed a motion seeking termination or
modification of alimony, elimination or recalculation of child support,
reimbursement for Peter's college expenses, Mountaineer lease and buy-out
payments, and loss of dependent income tax deductions for Peter. In his moving
certification, defendant contended he was entitled to relief because he could no
longer work as a firefighter due to his pulmonary diagnosis, which rendered him
"permanently disabled." He argued his retirement was a changed circumstance
warranting termination or modification of his alimony obligation.
Defendant also contended he was supporting Peter and paid 100% of his
college tuition, room, board, health insurance, car payments, car insurance, cell
phone, and provided him with a debit card for pocket expenses. In May 2016,
Peter began residing in an off-campus apartment. Defendant claimed plaintiff
was receiving a windfall from the child support payments. As per the terms of
the MSA, defendant argued that plaintiff should be required to contribute
towards Peter's college costs. Defendant asserted that plaintiff was responsible
A-4672-17T4
6
for the Mountaineer payments under the terms of the MSA. In addition,
defendant sought a credit for plaintiff claiming Peter as a tax exemption each
year for the four years before he entered college instead of alternating the
exemption.
On October 31, 2015, defendant voluntarily retired at the age of fifty-nine
from his firefighter position after nearly twenty-seven years of service. Plaintiff
was fifty-three years old at the time. Defendant did not seek other employment
and intended his termite business to be his sole source of income.
Plaintiff opposed defendant's motion and filed a cross-motion on January
20, 2016. She requested the court deny defendant's application and find him in
violation of litigant's rights for failing to pay alimony and child support while
his motion was pending. She also sought an increase in alimony payments based
on her limited income as a "grunt worker" in a florist shop and clerical jobs. She
contended that unresolved knee and lower back injuries prevented her from
standing for long periods of time.
Plaintiff has a high school education and worked as a bartender and florist
prior to the marriage. Her mother provides her with support. Plaintiff also
asserted that on October 2, 2015, she underwent surgery to remove a cervical
A-4672-17T4
7
spine tumor and she suffers from emphysema, chronic bronchitis, thyroid
disease, type two diabetes, and sciatica. Plaintiff also sought counsel fees.
On February 19, 2016, the judge entered an order, reserving all economic
issues other than child support, pending referral to a post-judgment early
settlement panel and a plenary hearing. As to child support, the judge
determined that a recalculation was warranted; he suspended defendant's child
support obligation; and requested additional submissions from the parties.
On June 29, 2016, the judge entered an order denying defendant's motion
to suspend his support obligations and established pendente lite spousal support
of $696 per month. In October 2016 and September 2017, the Family Part judge
conducted a plenary hearing on the motions. Both parties testified. Dr. Penek,
a realtor, and two fact witnesses also testified. On December 28, 2017, the judge
issued a twenty-five-page written opinion followed by a memorializing
preliminary order on January 2, 2018 and a final order on May 8, 2018.
The judge denied defendant's motion for termination or modification of
alimony, noting "by his actions, [defendant] voluntarily placed himself in the
financial position he now confronts and engaged in 'self-help.'" As pointed out
by the judge, the testimony of Dr. Penek was "unpersuasive" and incredulous.
The judge determined that defendant "did not need to retire;" "exhibited few
A-4672-17T4
8
difficulties performing his duties managing a pest control business and has a
degree in urban planning." Defendant's treating doctor did not testify, and his
medical records showed he went to the doctor less than once a year.
On the other hand, "[p]laintiff's needs remain the same as before
[d]efendant's retirement." The judge observed plaintiff ambulates with a cane,
wears a neck brace at times, and has trouble breathing. She is ineligible for
Social Security Disability benefits and owns a house with a $55,000 lien due to
defendant at the time of sale.
In reaching his decision, the judge considered the factors under N.J.S.A.
2A:34-23(j) and found plaintiff experienced difficulty saving for retirement.
Plaintiff receives $31,400 per year in alimony and a share of defendant's
pension, which equals $23,040. An imputation of $16,640 was assessed, but
plaintiff has no additional income. The judge excluded the assets distributed by
way of equitable distribution in his analysis.
The judge terminated defendant's child support obligations as of
September 1, 2017 and denied defendant's motion for reimbursement of lease
and buy-out payments and the lost income from the missed dependent tax
deductions in 2010 and 2012. The judge denied plaintiff's cross-motion to
increase alimony and for counsel fees. This appeal followed.
A-4672-17T4
9
On appeal, defendant contends the judge erred: (1) by finding there was
no substantial change of circumstances warranting a termination or modification
of alimony; (2) by finding child support should terminate effective September
1, 2017 instead of May 2016; (3) by limiting his right of reimbursement for
funds paid towards the lease and buy-out of the Mercury Mountaineer; and (4)
in denying his right to recoup his losses by plaintiff improperly claiming the
parties' son as a tax deduction.
II.
We turn first to defendant's argument that the Family Part judge erred by
denying his motion to terminate or modify alimony. Defendant contends he
presented "undisputed" evidence that he had a medical condition, which forced
his early retirement from his position as a firefighter. He contends the judge
erred by finding he did not need to retire for medical reasons and could have
continued working as a firefighter, but instead chose to retire after he became
eligible for full retirement benefits and failed to seek a comparable position.
We note initially that the scope of our review of Family Part orders is
limited. The trial court's factual findings "are binding on appeal when supported
by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
411-12 (1998). However, a trial court's legal conclusions are not entitled to
A-4672-17T4
10
special deference and are reviewed de novo. Clark v. Clark, 429 N.J. Super. 61,
71 (App. Div. 2012).
New Jersey has a long-standing public policy favoring the use of
voluntary agreements to resolve marital controversies. Konzelman v.
Konzelman, 158 N.J. 185, 193 (1999). "[F]air and definitive arrangements
arrived at by mutual consent should not be unnecessarily or lightly disturbed."
Id. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). However, a
court should enforce a matrimonial agreement only if it is "fair and equitable."
Lepis v. Lepis, 83 N.J. 139, 148 (1980).
Moreover, "such agreements should receive continued enforcement
without modification only so long as they remain fair and equitable." Id. at 148-
49. Our courts have the equitable power to modify alimony and support orders
at any time. Id. at 145 (citing N.J.S.A. 2A:34-23). Alimony and support orders
are subject to modification based "on a showing of changed circumstances." Id.
at 146 (citations omitted). We "must give due recognition" of the broad
discretion afforded to trial judges in addressing motions to modify alimony.
Reese v. Weis, 430 N.J. Super. 552, 571-72 (App. Div. 2013) (quoting Donnelly
v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)). The court is required
to examine and weigh a list of objective considerations when it reviews an
A-4672-17T4
11
alimony termination or modification request for an obligor who has retired.
Landers v. Landers, 444 N.J. Super. 315, 321 (2016).
"Alimony is an economic right that arises out of the marital relationship"
and allows a spouse to continue according to "the standard of living enjoyed by
the parties prior to their separation." Quinn v. Quinn, 225 N.J. 34, 48 (2016)
(quotation marks and citations omitted). The award of "[a]limony in New Jersey
is primarily governed by statute." Gayet v. Gayet, 92 N.J. 149, 150 (1983); see,
N.J.S.A. 2A:34-23 ("[A]fter judgment of divorce or dissolution or maintenance,
. . . the court may make such order as to the alimony or maintenance of the
parties, . . . as the circumstances of the parties and the nature of the case shall
render fit, reasonable and just . . . ."). Family courts "have the equitable power
to establish alimony and support orders in connection with a pending
matrimonial action, or after a judgment of divorce or maintenance . . . ." Crews
v. Crews, 164 N.J. 11, 24 (2000).
Because alimony orders define "only the present obligations of former
spouses[,]" those determinations are "always subject to review and modification
on a showing of 'changed circumstances.'" Ibid. (quoting Lepis v. Lepis, 83 N.J.
139, 146 (1980)); see also N.J.S.A. 2A:34-23 ("[Alimony orders] may be revised
and altered by the court from time to time as circumstances may require."). The
A-4672-17T4
12
moving party "bears the burden of making a prima facie showing of changed
circumstances" to initiate this modification. Id. at 28 (quoting Miller v. Miller,
160 N.J. 408, 420 (1999)). Changed circumstances generally means a recent
inability to support himself or herself. Lepis, 83 N.J. at 157.
If the alimony order pre-dates September 10, 2014, the request for
modification or termination must be reviewed under N.J.S.A. 2A:34-23(j)(3).
That section expressly requires "[i]n making its determination, the court shall
consider the ability of the obligee to have saved adequately for retirement . . .
[and] whether the obligor, by a preponderance of the evidence, has demonstrated
that modification or termination of alimony is appropriate . . . ." N.J.S.A. 2A:34-
23(j)(3). The obligee's ability to have adequately saved is set "apart from other
considerations and require[s] . . . explicit analysis." Landers, 444 N.J. Super. at
324.
The statute requires the court to consider other factors, which include:
(a) The age and health of the parties at the time of the
application;
(b) The obligor's field of employment and the generally
accepted age of retirement for those in that field;
(c) The age when the obligor becomes eligible for
retirement at the obligor's place of employment,
including mandatory retirement dates or the dates upon
A-4672-17T4
13
which continued employment would no longer increase
retirement benefits;
(d) The obligor's motives in retiring, including any
pressures to retire applied by the obligor's employer or
incentive plans offered by the obligor's employer;
(e) The reasonable expectations of the parties regarding
retirement during the marriage or civil union and at the
time of the divorce or dissolution;
(f) The ability of the obligor to maintain support
payments following retirement, including whether the
obligor will continue to be employed part-time or work
reduced hours;
(g) The obligee's level of financial independence and
the financial impact of the obligor's retirement upon the
obligee; and
(h) Any other relevant factors affecting the parties'
respective financial positions.
[N.J.S.A. 2A:34-23(j)(3)(a) to (h).]
Defendant argues that the Family Part judge improperly determined that
he did not establish a prima facie case of changed circumstances. He also
contends the judge failed to consider relevant factors and wrongfully rejected
Dr. Penek's testimony.
We do not agree that the judge erred in his analysis of the statutory factors.
The judge's ruling considered each of the factors under N.J.S.A. 2A:34-23(j)(3).
Moreover, the judge summarized Dr. Penek's testimony as follows:
A-4672-17T4
14
Defendant called John Penek as an expert witness
concerning his alleged pulmonary disability. The
plaintiff stipulated to this expert's qualifications. Dr.
Penek was hired by the defendant and earned $2500 for
testimony and $500 for an initial exam. The purpose of
this presentation was an effort to persuade the court that
[defendant] is no longer able to work as a paid
firefighter in Rahway. . . . However, Dr. Penek testified
that [defendant's] history demonstrated shortness of
breath and a generalized difficulty in performing his job
duties.
According to Dr. Penek, [defendant] had difficulty
climbing stairs, suffered some pulmonary obstruction,
and had decreased air entry. In short, Dr. Penek found
[defendant] permanently disabled as a firefighter who
could not carry out his daily responsibilities. A
pulmonary function test [was] performed on [April 14,
2015] finding no acute pulmonary disease with clear
lungs. There was no functional capacity evaluation
administered. Dr. Penek . . . never treated [defendant]
and was not retained by the Rahway Fire Department
for any disability alleged by [defendant].
It is undisputed that defendant had suffered from pre-
existing asthma and allergies. [He] was not asked or
directed to retire by any Rahway official but tendered a
voluntary retirement after [twenty-five] years of
service.
The judge also stated "[a] pulmonary function test performed on [April
14, 2015] [found] no acute pulmonary disease with clear lungs." The judge
found defendant did not suffer from an "acute" pulmonary disease. The judge
concluded Dr. Penek's testimony was "unpersuasive."
A-4672-17T4
15
As noted in City of Long Branch v. Liu, 203 N.J. 464, 491 (2010), a fact-
finder is free to accept or reject, fully or partially, the opinions of qualified
experts. Based upon our deferential standard of review, we conclude that the
judge did not abuse his discretion by rejecting Dr. Penek's testimony and
denying defendant's motion to terminate or modify alimony.
Defendant also contends the judge erred in his analysis under N.J.S.A.
2A:34-23(j)(2) and (3) by concluding his retirement was voluntary and not based
on health-related reasons. We disagree.
N.J.S.A. 2A:34-23(j)(2) specifically addresses situations where an obligor
"seeks to retire prior to attaining the full retirement age . . . ." Id. at 322.
According to the statute, "full retirement age" means "the age at which a person
is eligible to receive full retirement for full retirement benefits under section
216 of the federal Social Security Act (42 U.S.C. § 416)." N.J.S.A. 2A:34-23.
Under that Act, defendant would not become eligible for full retirement
benefits until February 25, 2024. See 42 U.S.C. § 416 (l)(1)(E) ("[W]ith respect
to an individual who attains early retirement age after December 31, 2021,
[sixty-seven] years of age."). Subsection (j)(3), alternatively, addresses "[w]hen
a retirement application is filed in cases in which there is an existing final
alimony order or enforceable written agreement established prior to the effective
A-4672-17T4
16
date of this act," which is September 10, 2014. Id. at 321 (citing N.J.S.A. 2A:34-
23(j)(3)).
The judge considered defendant's application under subsections (j)(2) and
(3). The latter subsection requires that "[i]n making its determination, the court
shall consider the ability of the obligee to have saved adequately for retirement
as well as the following factors in order to determine whether the obligor, by a
preponderance of the evidence, has demonstrated that modification or
termination of alimony is appropriate . . . ."
On this factor, the judge found
Plaintiff has experienced difficulty saving for
retirement. The [p]laintiff receives a share of
[d]efendant's pension which equals [$23,040]. In
addition, she receives alimony in the amount of
[$31,400] per year. Although $16,640 was imputed to
[plaintiff] by a previous judge, she has no other income.
The court finds that . . . [p]laintiff is a high school
graduate with limited work skills. She owns a home
with a modest lien to [defendant] but relies upon her
mother for financial support, from time to time. It is
unlikely that [plaintiff] will be successful in the
workplace. Plaintiff failed to produce expert testimony
concerning her alleged medical condition. Therefore,
the court is unable to make a reasonable determination
concerning any medical problem or disability allegedly
afflicting . . . [p]laintiff. However, [p]laintiff had
worked as a bartender and a florist when she was
younger. She states that she is willing to "work from
home" but remains unsuccessful in securing a position.
[Plaintiff] is ineligible to collect [s]ocial [s]ecurity
A-4672-17T4
17
benefits. The court finds that [plaintiff] has
accumulated limited savings and at age [fifty-five], will
face a substantial hurdle as she ages.
We discern no error in the court's determination that plaintiff was unable to save
for retirement. Put into context, plaintiff's limited ability to save for retirement
is supported by the record.
The judge then considered the additional factors, which are identical under
both subsections (j)(2) and (3). Applying these factors, an obligor must prove
by a preponderance of the evidence, that modification or termination of alimony
is appropriate. N.J.S.A. 2A:34-23(j)(2) and (3).
The first factor a court must consider is "[t]he age and health of the parties
at the time of the application . . . ." N.J.S.A. 2A:34-23(j)(2)(a). Defendant
argues that given his poor health condition, his retirement was objectively
reasonable. He contends the judge erroneously rejected his unrefuted evidence
regarding his medical status and instead focused on the fact that the City of
Rahway did not force his retirement.
Next, the court must consider "[t]he obligor's field of employment and the
generally accepted age of retirement for those in that field . . . ." N.J.S.A. 2A:34-
23(j)(3)(b). As to this factor, defendant argues that firefighters are permitted to
retire at age fifty-five, and must retire by age sixty-five. Since defendant retired
A-4672-17T4
18
at age fifty-nine, he contends that he falls squarely within the anticipated and
acceptable range for retirement.
The judge addressed the first factor at length and then incorporated his
findings from that section into the second factor analysis. As to both factors,
the judge found:
At the time of application, [d]efendant was [fifty-nine].
[Defendant] could have worked until age [sixty-five]
but chose to retire at age [fifty-nine]. He received his
full benefit package including a lifetime pension and
generous health plan. . . . The [C]ity of Rahway did not
require [d]efendant to retire early due to any medical
condition or disability. Therefore, [defendant's]
decision can be characterized as voluntary. . . . [T]he
court . . . was unmoved by [Dr. Penek's] testimony.
Dr. Penek was retained by [defendant] for the express
purpose of trial testimony. The court finds that
[d]efendant may have experienced shortness of breath,
limited ability to climb stairs, and decreased air entry
but overall, the testimony of Dr. Penek was
unpersuasive.
....
The court finds that [d]efendant could have continued
working as a Rahway firefighter but chose to retire
shortly after becoming eligible to receive full benefits.
The court also finds that [defendant] did not actively or
seriously seek another job earning a comparable salary
as a firefighter once he made the decision to retire.
....
A-4672-17T4
19
The court might have arrived at a different conclusion
had [d]efendant presented an expert from the City of
Rahway with an opinion that [d]efendant was forced to
retire because of a medical problem. This was not the
case however, as defendant offered the testimony of a
"hired gun" who earned at least [$3000] for his initial
exam and court testimony.
Here, the judge correctly applied the factors and determined that
defendant did not need to retire for medical reasons and could have continued
working as a firefighter. The judge also found that plaintiff is financially
dependent and requires continued spousal support. In his opinion, the judge
determined that plaintiff lacks adequate, advanced work skills and is only
capable of performing a job earning a minimum wage.
The statute also requires a consideration of "[t]he age when the obligor
becomes eligible for retirement at the obligor's place of employment, including
mandatory retirement dates or the dates upon which continued employment
would no longer increase retirement benefits" as well as "[t]he obligor's motives
in retiring, including any pressures to retire applied by the obligor's employer or
incentive plans offered by the obligor's employer . . . ." N.J.S.A. 2A:34-
23(j)(3)(c) and (d).
On these points, defendant argues that while he was able to accrue
additional retirement benefits until he reached the mandatory retirement age of
A-4672-17T4
20
sixty-five, he was permitted to retire at age fifty-five. Also, he asserts that while
he did not have an incentive to retire at the time he did, there was uncontroverted
evidence that his medical issues were the driving factor in making the decision
to retire and his motive was not improper.
Regarding factor (c), the judge found "defendant was eligible to retire at
age [fifty-five]. Defendant was [fifty-nine] when he retired but could have
continued working as a firefighter through age [sixty-five], earning a salary
greater than his pension."
Regarding factor (d),
The court questions [d]efendant's motives in retiring.
The court finds that [d]efendant waited until he was
eligible to receive his full pension and benefit package
to step down. Defense counsel concedes at page [five]
of his brief that "[defendant's] retirement benefits could
have increased until he reached the mandatory
retirement age in accordance with state law."
Defendant was not pressured by Rahway to retire and
was not offered any incentives. His decision was
voluntary.
Defendant's arguments are unavailing, and there was no abuse of
discretion by the judge. There is substantial, credible evidence in the record to
support the judge's findings under these factors.
The judge noted that plaintiff is unable to maintain her monthly household
expenses without spousal support. Moreover, the judge found defendant failed
A-4672-17T4
21
to show a substantial change of circumstances that would warrant a termination
or modification of alimony. There is sufficient credible evidence in the record
to support the judge's findings of fact and conclusions of law.
We have considered defendant's other contentions regarding the judge's
decision on his motion to terminate or modify alimony. We conclude these
arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
III.
Next, defendant argues the judge erred by terminating his child support
obligation for the parties' son, Peter, effective September 1, 2017. Defendant
contends that date is inconsistent with the judge's finding that additional support
was not required because Peter had been residing in an off-campus apartment
since May 2016. In his opinion, the judge found that Peter "stays at his own
apartment more frequently and rarely spends his nights at his mother's home."
In considering the termination of defendant's child support obligations,
the judge analyzed the factors relevant to the issue of support, beyond college
expenses, for a child who attends college and lives on campus under Jacoby v.
Jacoby, 427 N.J. Super. 109 (App. Div. 2012). The judge weighed the child's
needs, earning potential, debts, age, and health; the parent's contribution towards
A-4672-17T4
22
college costs; and the possible continued need to retain a local residence for
schooling.
According to Jacoby, when addressing a support obligation for a child
who resides at college, utilizing the child support guidelines to determine the
amount is error. Id. at 113. Instead, the calculation of child support under those
circumstances should be based on an evaluation of the factors enumerated in
N.J.S.A. 2A:34-23(a). Id. at 122. Those factors include:
(1) Needs of the child;
(2) Standard of living and economic circumstances of
each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including
educational background, training, employment skills,
work experience, custodial responsibility for children
including the cost of providing child care and the length
of time and cost of each parent to obtain training or
experience for appropriate employment;
(5) Need and capacity of the child for education,
including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered
support of others;
A-4672-17T4
23
(9) Reasonable debts and liabilities of each child and
parent; and
(10) Any other factors the court may deem relevant.
[N.J.S.A. 2A:34-23(a).]
Here, the judge found:
[d]efendant has proven that the child's needs have
lessened since he began attending college, especially
when he moved into the apartment in Clifton. . . . It is
undisputed that a large share of the son's expenses are
now paid by the father: automobile; auto maintenance
and insurance; gasoline; parking pass for school; cell
phone; and health insurance. The son resided with his
mother during school breaks before he leased an
apartment, usually for [three] months during the
summer and occasionally during the weekends. The
court finds that [plaintiff] provided some benefits and
support to [their son] in the form of food, linens,
toiletries, and sundries. The [p]laintiff also alleges that
she paid for clothing, haircuts, entertainment, food, and
spending money on a sporadic basis. Therefore, the
court will not disturb the prior child support order in
place before [the son's] residence at the Clifton
apartment.
....
[However,] [t]he court finds [d]efendant credible that
after the son's sophomore year, he paid for an apartment
rental at the rate of $625 per month plus utilities and
cable television. The court also finds that [the son]
resides at the apartment most of the time, even during
breaks.
....
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The judge granted defendant's motion on this issue and terminated child
support as of September 1, 2017. Defendant challenges the judge's decision
setting the child support termination date at September 1, 2017, the
commencement of Peter's senior year of college. Both parties acknowledged
that Peter resided in the apartment after it was leased in May 2016. The judge
found that prior to September 2017, Peter probably spent time at plaintiff's
home, and "[p]laintiff pays a nominal (if any) amount for [their son] since he
moved." Defendant contends the judge did not articulate why his child support
payments should continue for over a year while making other payments for
Peter. When defendant raised this issue by way of a motion, the judge said he
would consider it but instead issued an order with the same termination date and
no explanation.
We are constrained to remand to the Family Part judge to consider whether
child support should be terminated on a date in calendar year 2016 consistent
with the apartment rental, or to explain his reasons for selecting September 1,
2017. An abuse of discretion occurs when a decision is "made without a rational
explanation, inexplicably depart[s] from established policies, or rest[s] on an
impermissible basis." US Bank Nat'l Ass'n. v. Guillaume, 209 N.J. 449, 467-68
(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Since
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the judge did not provide a rational explanation for ordering the effective child
support termination date of September 1, 2017, we reverse and remand the May
4, 2018 order insofar as it pertains to this issue for reconsideration by the judge.
IV.
Defendant argues the Family Part judge erred by not requiring plaintiff to
reimburse him for monies paid toward the lease and buy-out of the Mountaineer.
He contends that under the MSA, the parties agreed plaintiff would be
responsible for the lease payments with Ford Motor Credit. In his motion,
defendant sought $6,149.99, which represented payments he allegedly made for
the Mountaineer between April 20, 2010, and February 2, 2012. He also sought
$4000, which he paid to buy-out the vehicle, for a total claim of $10,141.99. At
the hearing, defendant presented the judge with copies of his bank statements,
which he testified substantiated his claim for the payments, along with a
corresponding Ford Motor Credit statement, and a copy of the $4000 check
representing the buy-out payment.
In opposition, plaintiff argued that she made payments from her account
but was habitually behind and sometimes had to rely on defendant to make
payments on her behalf. Plaintiff contended that she reimbursed defendant in
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26
cash, which she obtained from her parents, but failed to provide proof other than
her mother's partial corroboration for two occasions.
The judge found, however, that defendant did not submit copies of the
checks or other "actual proof of payment." The bank statements indicate that
defendant made certain payments to "Ford Credit." Plaintiff asserted that the
bank statements do not reflect any Ford Motor Credit account information and
therefore, do not confirm defendant made the payments.
The judge stated:
Plaintiff claims that the [$4000] check was a "gift" and
[d]efendant has characterized it as a "loan[."] The court
finds that the [$4000] check paid by [d]efendant to Bell
Ford[1] was for the benefit of the [p]laintiff regarding
the Mercury buy[-]out . . . [and] [t]he buy[-]out was
strictly for the benefit of the [p]laintiff[. . . .] [E]ven
though there was no written contract between the
parties concerning this issue, [plaintiff] maintained sole
use of the vehicle, enjoyed driving it, and did not want
to pay a "lease termination fee[."]
. . . However, since [d]efendant did not submit checks
(or other actual proof of payment) to Ford Motor
Company, the court respectfully denies a portion of his
claim concerning the vehicle. However, the court was
persuaded by the [d]efendant's more credible testimony
that the [$4000] paid to Bell Ford was primarily for
[p]laintiff's benefit and [plaintiff's] testimony that the
funds constituted a "gift" was not plausible.
1
Ford Motor Credit and Bell Ford are used synonymously throughout this
opinion.
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Consequently, the judge ordered plaintiff to reimburse defendant the
$4000 amount. The evidence on this issue was contradictory and was based
partly on credibility and insufficient proof of payment. There was sufficient,
credible evidence in the record to support the judge's finding, which is entitled
to our deference. Therefore, we reject defendant's argument.
V.
Lastly, we address defendant's argument that he was entitled to
reimbursement for the losses he allegedly sustained because plaintiff improperly
claimed Peter as a tax deduction. Defendant asserts under the MSA, he was
entitled to claim Peter as a dependent on his 2010 and 2012 tax returns requiring
him to pay additional taxes. He seeks $1500 he lost in tax liability for both years
or a total of $3000.
The relevant section of the MSA provides:
The [defendant] shall have the right to claim the child
as a dependency deduction on his federal and state
returns for the tax years 2009, 2010 and 2012. In 2012,
and each year the child is in college, the parties shall
mutually consult with an accountant and determine if it
benefits the son's college tuition costs for the [plaintiff]
to claim the child . . . for . . . 2012, 2013, and 2014.
The judge noted this MSA provision was "convoluted" and required the
parties to consult an accountant to determine who should take the deduction
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"based on a set of conditions and future circumstances." The MSA also includes
a handwritten provision that indicates the parties might change this section "as
the need may arise."
Plaintiff testified that defendant agreed she could take the tax deduction
for Peter. She presented the judge with a series of messages between the parties
in which defendant agreed she could take the deduction. The judge concluded
that defendant "failed to substantiate this part of his claim" and onl y asserted
this demand "to add weight" to other aspects of his motion. Moreover, the judge
noted that the exchange only pertained to one year and defendant "never
seriously objected to the arrangement" until he filed his motion. To the contrary,
defendant approved plaintiff taking the deduction for one of the two years he
now disputes.
Our careful review of the record supports the judge's denial of defendant's
claim on this issue. There is sufficient, credible evidence in the record to support
the judge's finding. Therefore, we reject defendant's argument.
Affirmed in part, and remanded in part. We do not retain jurisdiction.
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