KINEE v. KINEE

Docket No. A-5333-14T1.

JAMES F. KINEE, Plaintiff-Appellant, v. BARBARA KINEE, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Decided February 10, 2017.


Attorney(s) appearing for the Case

Michael A. Gill argued the cause for appellant (Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys; Mr. Gill, on the brief).

D. Ryan Nussey argued the cause for respondent (Klineburger & Nussey, attorneys; Mr. Nussey and Carolyn G. Labin , on the brief).

Before Judges Fisher, Leone and Vernoia.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM.

In this appeal of two post-judgment matrimonial orders derived from facts found by a family judge at the conclusion of a four-day evidentiary hearing, plaintiff James Kinee argues only that the judge abused his discretion in terminating alimony based on defendant Barbara Kinee's cohabitation as of the date James moved for relief, rather than the date their three children were all emancipated. After close examination of the record, we conclude that the judge properly exercised his discretion and, therefore, affirm.

The parties were divorced in 1997 after twenty-three years of marriage. The divorce judgment required James's payment to Barbara of $3400 in support every month regardless of James's employment, but the monthly obligation increased to $4500 when James's annual employment income reached $100,000.1 The judgment also declared that: until all three children2 were emancipated, the support obligation would be deemed as child support; the obligation would not be diminished by emancipation of any child; and upon the emancipation of the last child, the support obligation would "convert in the entirety to permanent alimony."

The judge found James was aware Barbara was cohabiting with another man continually since 1999; notwithstanding that knowledge,3 and his belief that all three children were emancipated no later than January 1, 2008, James didn't seek relief from his support obligation until filing his July 9, 2014 motion to terminate. After weighing the equities presented by these circumstances, including James's accumulation of substantial arrears when he had an undisputed child support obligation, the judge soundly exercised his discretion in adopting as the alimony-termination date the filing date of James's motion.4 See Reese v. Weis, 430 N.J.Super. 552, 584 (App. Div. 2013); Walles v. Walles, 295 N.J.Super. 498, 514 (App. Div. 1996). We find insufficient merit in James's arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

FootNotes


1. The higher obligation was triggered in 1999 when James's annual earnings from his employment with a Connecticut casino exceeded $190,000. Although he claims he was unemployed in 2000, 2001 and 2004, and earned less than $40,000 in both 2002 and 2003, James acknowledged he earned: $141,452 in 2006; $163,789 in 2007; and $176,340 in 2008. Consequently, the argument James was financially unable to apply for relief from his support obligation until 2014 was soundly rejected by the family judge.
2. The children were born in 1981, 1982 and 1984.
3. It appears Barbara made no attempt to conceal her new relationship in that she and her paramour, who was also her business partner, shared a home in Rhode Island in 1999 and, in 2002, moved to Florida where they have since shared a home. In fact, when the parties' oldest child married, the wedding invitation identified not only James and Barbara but also Barbara's paramour as the parents of the groom.
4. James appealed two trial court orders. The first, entered on May 4, 2015, fixed the alimony termination date and ordered the repayment of support arrears at the rate of $500 per month. And the second, entered on June 16, 2015, denied reconsideration, among other things of no interest here.

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