NOT FOR PUBLICATION
Plaintiff Laura Seuffert (Laura)1 appeals from the post-judgment order of the Family Part lowering the alimony obligation of defendant Paul Seuffert (Paul), as well as the denial of her request that Paul be placed on bench-warrant status for missed alimony payments. Paul cross-appeals from the denial of his motion to terminate alimony due to his former wife's cohabitation with another and for child support for the two children who reside with him. We remand for further discovery and a plenary hearing.
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.2
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. Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J.Super. 17, 21 (App. Div. 2006)). Our review of the record in this case, however, convinces us that the matter must be remanded to the Family Part for further proceedings. First, the motion judge's written statement of reasons is too cursory for us to ascertain whether he appropriately exercised his discretion. Second, and more significantly, most of the issues raised in the cross-motions are fact sensitive and cannot be decided on the papers given the conflicting factual assertions made by the parties.
"Trial judges are under a duty to make findings of fact and to state reasons in support of their conclusions." Heinl v. Heinl, 287 N.J.Super. 337, 347 (App. Div. 1996) (citing R. 1:7-4). "`Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J.Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J.Super. 441, 443 (App. Div. 1990)). "Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980) (citations omitted). The judge's findings and conclusions in this case do not satisfy this standard.
A trial judge has broad discretion in reviewing an application to modify alimony. Storey v. Storey, 373 N.J.Super. 464, 470 (App. Div. 2004) (citing N.J.S.A. 2A:34-23; Innes v. Innes, 117 N.J. 496, 504 (1990)). "As a result of this judicial authority, alimony and support orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of `changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citations omitted). Even if the parties enter an agreement about alimony, a former spouse may seek judicial review or modification of the spousal support based upon a showing of changed circumstances. Glass v. Glass, 366 N.J.Super. 357, 370 (App. Div.) (citing Miller v. Miller, 160 N.J. 408, 419 (1999)), certif. denied, 180 N.J. 354 (2004).
The party seeking to modify an alimony obligation has the burden of showing "changed circumstances." Lepis, supra, 83 N.J. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)). In addition, the party must "demonstrate that changed circumstances have substantially impaired [his or her] ability to support himself or herself." Ibid. "Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citations omitted).
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. See Golian v. Golian, 344 N.J.Super. 337, 341 (App. Div. 2001) (citing Dorfman v. Dorfman, 315 N.J.Super. 511, 516 (App. Div. 1998)). Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J.Super. 346, 354 (App. Div. 1988) (citation and internal quotation marks omitted), certif. denied, 114 N.J. 505 (1989). Rather, "a court `has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J.Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller, supra, 160 N.J. at 420 (citations omitted). "Income may be imputed to a party who is voluntarily unemployed or underemployed." Golian, supra, 344 N.J. Super. at 341 (citing Dorfman, supra, 315 N.J. Super. at 516). "[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one's family." Arribi v. Arribi, 186 N.J.Super. 116, 118 (Ch. Div. 1982).
We are aware that "not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J.Super. 39, 47 (App. Div.) (citing Adler v. Adler, 229 N.J.Super. 496, 500 (App. Div. 1988)), certif. denied, 142 N.J. 455 (1995). However, our review of the record convinces us that the facts relating to Paul's alleged diminution of income require exploration at a plenary hearing. That he may actually have less income does not necessarily mean he is entitled to a reduction in alimony. In addition, the judge must consider all of the other factors related to alimony, including other sources of income, in making a determination on a motion such as this one. We anticipate that additional discovery will be necessary prior to the plenary hearing, so that issues such as Paul's employment status and the disposition of the NYMEX seats can be explored further.
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. In Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), the Supreme Court's analysis explained what does and does not constitute "cohabitation":
A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony. Such an agreement must be predicated on a relationship of cohabitation that can be shown to have stability, permanency and mutual interdependence.... The ordinary understanding of cohabitation is based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle.
We applied the Konzelman factors in Palmieri v. Palmieri, 388 N.J.Super. 562 (App. Div. 2006). There, the defendant's evidence of cohabitation included observations of the plaintiff having an unrelated male sleep at her home for twenty-two non-consecutive days over the course of three months, the man walking the plaintiff's dog, taking out the garbage, and departing and arriving home at the same time as the plaintiff. Id. at 563-64. The plaintiff admitted that her boyfriend stayed over some nights; however, she alleged that he maintained his own residence and did not contribute toward her daily living expenses. Id. at 564. The motion judge determined the boyfriend was residing at plaintiff's home, finding the plaintiff's certification not credible. Ibid. Because we determined that the facts had not been sufficiently developed in light of the Konzelman standards, we remanded for a plenary hearing. Id. at 565. We do the same here.
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. Gotlib v. Gotlib, 399 N.J.Super. 295, 304-06 (App. Div. 2008). Consequently, the issue is not whether Paul needs the child support, but whether the children residing with him need it. The judge will also have to consider whether a modification of the no child-support provision of the PSA requires other adjustments to that agreement. While Paul was not permitted to waive child support on behalf of the children, he should not be permitted to benefit from his having done so if Laura changed her position in reliance on that aspect of the agreement. That issue must be carefully explored at the plenary hearing.
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 Rule 1:7-4 in explaining his resolution of the issues. The order on appeal shall remain in effect as an interim order, but it is subject to such modification pending the plenary hearing as the judge deems appropriate. Repayment of alimony based on the retroactive change in Paul's obligation is, however, stayed pending the final decision on the remand.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.