SEUFFERT v. SEUFFERT No. A-2913-10T4.
LAURA SEUFFERT, Plaintiff-Appellant/Cross-Respondent, v. PAUL SEUFFERT, Defendant-Respondent/Cross-Appellant.
Superior Court of New Jersey, Appellate Division.
Decided April 16, 2012.
Toby Grabelle , attorney for appellant/cross-respondent.
Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, attorneys for respondent/cross-appellant ( William M. Laufer , of counsel; Jennifer L. McInerney , on the brief).
Before Judges Cuff, Lihotz, and Waugh.
NOT FOR PUBLICATION
Plaintiff Laura Seuffert (Laura)
We discern the following facts and procedural history from the record on appeal.
Laura and Paul were married in October 1986. They have three children, a daughter and two sons.
Paul has an associate's degree from Brookdale Community College. During the marriage, Paul was a trader on the New York Mercantile Exchange (NYMEX), having worked as a trader since he was eighteen years old. He obtained one seat on NYMEX prior to the marriage and acquired a one-half interest in an additional seat during the marriage. During 2005 and 2006, he earned an adjusted gross income of about $1.3 million and $1.8 million, respectively. Laura was not employed outside the home.
Laura filed a complaint for divorce in August 2003. A final judgment of divorce was filed on January 23, 2006. After the parties signed a property settlement agreement (PSA), an amended judgment of divorce incorporating the PSA was filed on March 20, 2006.
Pursuant to the PSA, Paul transferred several million dollars in assets to Laura as equitable distribution. Paul was also required to pay alimony of $4000 per month. The PSA provided that "[a]limony shall terminate upon plaintiff's remarriage, death of either party, or plaintiff's cohabitation." Although neither party was required to pay child support, Paul was required to pay for the children's major expenses, and the parties were to split the children's living expenses during their respective parenting time. The parties were to be responsible for their own counsel and expert fees.
In August 2010, Paul filed a motion to terminate his alimony obligation and to require Laura to pay child support for the two children, both sons, who had been living with him. Laura filed a cross-motion seeking denial of Paul's motion, as well as an order requiring (1) that alimony be paid through Probation Services, (2) that Paul prove the existence of the life insurance required by the PSA, (3) that Paul be placed on bench-warrant status if his alimony payments are more than fourteen days late, and (4) that the court award her counsel fees she incurred regarding the motions.
Paul asserted that he had lost his job at NYMEX and had not earned an income since 2006. He further asserted that in 2009, the year preceding his motion to terminate alimony, he had taxable income of $474,064, but a loss of approximately $590,000. Paul also alleged that Laura had been cohabiting with her boyfriend. He presented a letter from a private investigator, who reported that the boyfriend frequently stayed overnight at Laura's house, for which he possessed a remote garage door opener.
Laura asserted that Paul had sold his one and a half seats on NYMEX, realizing millions of dollars in profit. She further contended that he had had an average income of $740,000 per year over the course of the five years leading up to the motion, which did not include his interest and dividend income. She pointed to Paul's purchase of a second home for $1.75 million prior to the filing of his motion as evidence that he was not having financial difficulties. According to Laura, her boyfriend stayed at her house less than twenty-five percent of the time during the thirty-three days of the private detective's surveillance. She also disputed the claim that she provided her boyfriend with a garage door opener.
The judge heard oral argument on the motions in September 2010. He concluded that there was insufficient evidence that Laura was cohabiting with her boyfriend. However, the judge reserved decision on the remaining issues. He concluded that he needed additional information concerning Paul's alleged change in financial circumstances, and ordered Laura to supply an updated case information statement (CIS) and ordered Paul provide an earlier CIS. He also ordered both parties to submit five years of past income tax returns.
Additional documentation was submitted by the parties in October. There was a dispute as to whether all of the required documents were provided, and that dispute does not appear to have been resolved.
On January 13, 2011, without hearing additional argument or holding a plenary hearing, the judge issued an order deciding the cross-motions. The order was accompanied by a very brief written statement of reasons. The judge denied the application to terminate alimony based on cohabitation, but reduced the alimony from $4000 per month to $2750 per month based on changed circumstances. The judge made the reduction in alimony retroactive to the date on which Paul filed his motion, and required Laura to reimburse overpayments within sixty days. The judge also denied Paul's request that Laura be required to pay child support, finding no changed circumstances.
With respect to Laura's cross-motion, the judge denied her request that Paul be placed on bench-warrant status. However, he ordered that the alimony be paid through Probation Services. He also required Paul to provide proof of insurance as required by the PSA. He denied Laura's request for counsel fees. This appeal followed.
We ordinarily accord great deference to the discretionary decisions of Family Part judges.
"Trial judges are under a duty to make findings of fact and to state reasons in support of their conclusions."
A trial judge has broad discretion in reviewing an application to modify alimony.
The party seeking to modify an alimony obligation has the burden of showing "changed circumstances."
Further, a party may not deliberately remain underemployed in order to shirk his or her support obligations, and a trial judge has the discretion to impute a higher income to any individual the judge believes is doing so.
We are aware that "not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing."
Although the judge's conclusion with respect to cohabitation appears to have some basis in the facts contained in the motion papers, the issue should be included in the plenary hearing because it is also highly fact sensitive.
We applied the
The issue of whether Paul is entitled to child support also requires further analysis. The PSA did not require child support, other than an agreement that Paul pay major expenses and the parties split the children's expenses during parenting time. However, it is well established that a parent cannot waive a child's right to child support because the right belongs to the child.
Finally, the judge did not explain his determination that bench-warrant status was not appropriate. That issue must be considered on remand and the reasons for the judge's determination explained.
In summary, we remand all issues to the Family Part for reconsideration, based upon additional discovery as needed, and a plenary hearing. The judge shall comply with the requirements of
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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