holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary," and explaining that "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application"
How later courts described this case
- holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary," and explaining that "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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-3316-20
BRIAN J. WELCH,
Plaintiff-Respondent,
v.
DONNA L. WELCH,
Defendant-Appellant.
________________________
Submitted June 21, 2022 – Decided July 8, 2022
Before Judges Whipple and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1292-08.
August J. Landi, attorney for appellant.
Drazin & Warshaw, PC, attorneys for respondent
(Vincent L. Stripto, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant Donna L. Welch
appeals from a June 8, 2021 Family Part order denying her motion for discovery
relative to her request for an increase in alimony based on changed
circumstances. For the reasons that follow, we affirm.
I.
The following facts are derived from the record. The parties were married
on June 30, 1983, and divorced on September 16, 2009. They executed a
property settlement agreement (PSA) on July 15, 2008, which was incorporated
into their consent dual judgment of absolute divorce. Article II, paragraph 2.1
of the PSA provided for spousal support as follows:
Alimony. [Plaintiff] agrees to pay alimony to
[defendant] in the amount of $10,000[] per year, in
equal monthly installments of $833.33, commencing
upon her vacating the marital residence. [Plaintiff]'s
alimony obligation shall cease upon his death,
[defendant]'s death, or [her] remarriage, whichever
shall first occur. [Defendant]'s cohabitation with an
unrelated person shall constitute a change in
circumstances warranting a review of [plaintiff's]
alimony obligation. Additionally, [plaintiff]'s alimony
obligation shall be reviewed upon [his] retirement at
normal retirement age or sooner if due to disability.
At the time the PSA was negotiated, plaintiff earned $45,000 per year
working for Gerdau Ameristeel. Defendant was unemployed at the time but was
receiving Social Security Disability (SSD) benefits of $1,100 per month and a
monthly pension of $536 from her Federal Employees' Retirement System
Pension as a former postal worker.
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On August 19, 2009, plaintiff ceased working due to health issues dating
back to 2005. He qualified for SSD benefits and disability benefits under a
private policy issued by Hartford Insurance Company through his employer. As
required by the PSA, plaintiff's disability and retirement triggered a review of
his alimony obligation.
After plaintiff conferred with defendant about his disability and
retirement, and upon a subsequent review of their current incomes, a consent
order was entered reducing plaintiff's alimony obligation from $10,000 to
$3,000 per year effective March of 2010. The revised alimony obligation would
be paid in equal monthly installments of $250. On March 8, 2010, the consent
order was executed by a Family Part judge. Thereafter, defendant moved to
Florida and returned to New Jersey to visit over the 2010 Christmas holiday.
She stayed at plaintiff's home, but he asked her to leave after he caught her
rummaging through his personal papers.
In 2011, defendant filed a motion seeking to vacate the consent order,
claiming she signed it under false pretenses; for reinstatement of the original
alimony obligation; and to compel plaintiff to pay arrears. On February 16,
2011, a prior judge entered an order denying defendant's motion, without
conducting oral argument as requested by defendant, and did not order a plenary
A-3316-20
3
hearing. The judge determined defendant did not establish fraud in order to
justify vacating the consent order. Defendant appealed the decision.
In an unpublished decision, Welch v. Welch, No. A-3658-10 (App. Div.
Jan. 12, 2012), we reversed the February 16, 2011 order and remanded for
further proceedings. We held "the motion judge should have granted oral
argument on the motion and then held a plenary hearing because the parties'
certifications contained conflicting assertions of material facts" related to their
incomes, needs, and expenses. Further, we noted "only that [defendant] be given
an opportunity to present her case."
On remand, the parties engaged in extensive paper discovery and
exchanged updated case information statements (CIS). Both parties were also
deposed. On June 5, 2012, the date scheduled for the plenary hearing, the parties
reached an agreement and entered into another consent order, increasing
plaintiff's alimony obligation from $250 to $275 per month.
On September 21, 2020, defendant filed a new motion to increase
plaintiff's alimony obligation based on substantially changed circumstances, and
for other relief not pertinent to this appeal. She contended the change in
circumstances was plaintiff's increased income because he "received $150,000
in 2018 from the sale of his late mother's home" and inherited his mother's
A-3316-20
4
"extensive stock portfolio." In addition, defendant requested mandatory
economic mediation pursuant to Rule 1:40 and further discovery. Plaintiff
opposed the motion, maintaining defendant did not establish a prima facie
showing of changed circumstances and that her attempt "to secure equitable
distribution of the inheritance from [his] mother which, even if it had been
received prior to [their] divorce[,] would have been exempt from distribution."
On December 11, 2020, without conducting oral argument, the judge
entered a post-judgment order finding defendant established a prima facie
showing of changed circumstances and ordered plaintiff serve
the [c]ourt and counsel a fully complete[d] [CIS] within
[thirty] days including but not limited to current income
from all sources, earned and unearned, and completed
[a]sset page—to be completed and filed within ten (10)
days, with sanctions to issue at the rate of $100 per
week thereafter in the event of non-compliance.
The judge also ordered plaintiff to issue written authorizations to permit
defendant's attorney to ascertain information regarding any interest in oil related
assets in Texas and pension benefits plaintiff might have accrued. The judge
denied defendant's request for mandatory economic mediation and further
discovery without prejudice. A handwritten statement on the order provided,
"Upon submission of [CIS] [c]ounsel may request a conference with the [c]ourt
and further argument."
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Plaintiff complied with the judge's order. His updated CIS disclosed his
continued receipt of disability benefits he had been receiving from 2012 from
the same sources of income. The only additional asset plaintiff's CIS revealed
since the entry of the 2012 consent order was an inheritance of $290,500. Using
plaintiff's executed authorizations, defendant's attorney did not uncover any oil-
related assets or other income attributable to plaintiff.
On April 26, 2021, defendant filed a third motion seeking to increase
plaintiff's alimony obligation and to refer the matter to economic mediation.
Defendant also moved to compel plaintiff to provide authorizations for her to
obtain copies of his income tax returns from the Internal Revenue Service from
2011 through 2020. On June 8, 2021, the judge rendered an oral opinion.
The judge found plaintiff complied with all of defendant's discovery
requests and emphasized that the discovery was fruitless. Further, the judge
added, "I'm really probably incorrect when I said that . . . [defendant] made out
a prima facie case. But I found it sufficient enough to warrant the exchange of
information, and that was done." Relying on Lepis v. Lepis, 83 N.J. 139 (1980),
and its progeny, the judge held the discovery had not produced anything
demonstrating a substantial change in circumstances, such as an increase in
defendant's needs or plaintiff's income. The judge denied defendant's motion
A-3316-20
6
and concluded there were no questions of material fact warranting additional
discovery or a plenary hearing. A memorializing order was entered.
On appeal, defendant presents the following arguments for our
consideration:
(1) the judge erred by failing to direct the parties to
complementary dispute resolution (CDR) and failing to
conduct a plenary hearing after defendant demonstrated
a prima facie showing of changed circumstances and
requiring plaintiff to provide a fully completed CIS;
(2) the judge erred by denying CDR given defendant's
"needs;" plaintiff's paucity of alimony payments—$275
per month and plaintiff's CIS line-item expense of $665
per month for alcohol and tobacco; and
(3) this dispute requires a plenary hearing should CDR
interventions fail to resolve the issue.
II.
The decision of the Family Part judge to modify alimony is reviewed
under an abuse of discretion standard. Larbig v. Larbig, 384 N.J. Super. 17, 21
(App. Div. 2006). "Whether an alimony obligation should be modified based
upon a claim of changed circumstances rests within a Family Part judge's sound
discretion." Ibid. Each individual motion for modification is particularized to
the facts of that case, and "the appellate court must give due recognition to the
wide discretion which our law rightly affords to the trial judges who deal with
A-3316-20
7
these matters." Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).
As such, the appellate court may not disturb the Family Part's decision on
alimony unless it concludes that the Family Part "clearly abused its discretion,
failed to consider all of the controlling legal principles, or must otherwise be
well satisfied that the findings were mistaken or that the determination could not
reasonably have been reached on sufficient credible evidence present in the
record after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super.
337, 345 (App. Div. 1996).
The same standard of review applies to a Family Part's determination
regarding the need for a plenary hearing. Costa v. Costa, 440 N.J. Super. 1, 4
(App. Div. 2015). Conversely, "all legal issues are reviewed de novo." Ricci v.
Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).
"Alimony is an 'economic right that arises out of the marital relationship
and provides the dependent spouse with "a level of support and standard of
living generally commensurate with the quality of economic life that existed
during the marriage."'" Quinn v. Quinn, 225 N.J. 34, 48 (2016) (quoting Mani
v. Mani, 183 N.J. 70, 80 (2005)). Alimony is generally set based on the martial
standard of living and contemplates the "continued maintenance at the standard
of living [the dependent spouse] had become accustomed to prior to the
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separation." Lepis, 83 N.J. at 150 (quoting Khalaf v. Khalaf, 58 N.J. 63, 69
(1971)). Alimony "may be revised and altered by the court from time to time as
circumstances may require." N.J.S.A. 2A:34-23.
Defendant argues that because the judge found in the December 11, 2020
order that she made a prima facie showing of changed circumstances, the same
showing applies to her later April 26, 2021 motion. And defendant contends the
issue of alimony is ripe for CDR. As a result, defendant maintains the judge
erred in finding she failed to meet the requisite burden and that plaintiff's
alimony obligation should be increased after further discovery is provided. We
disagree.
To modify an alimony obligation, a movant has the burden of
demonstrating a prima facie case of changed circumstances before the court
orders discovery, full financial disclosure, or a plenary hearing. Lepis, 83 N.J.
at 157-59. "When [a] movant is seeking modification of an alimony award, that
party must demonstrate that changed circumstances have substantially impaired
the ability to support himself or herself." Id. at 157. There are a number of
changed circumstances that may warrant a modification of an alimony
obligation, such as "an increase or decrease in the income of the supporting or
A-3316-20
9
supported spouse." Quinn, 225 N.J. at 49 (quoting J.B. v. W.B., 215 N.J. 305,
327 (2013)).
A moving party "may make a prima facie showing of changed
circumstances . . . by citing a combination of changes . . . of both parties[,] which
together have altered the status quo [that] existed at the time of the entry of the
support order under review." Donnelly v. Donnelly, 405 N.J. Super. 117, 131
(App. Div. 2009) (quoting Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App.
Div. 1997)). "[T]he changed-circumstances determination must be made by
comparing the parties' financial circumstances at the time the motion for relief
is made with the circumstances which formed the basis for the last order fixing
support obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).
However, courts acknowledge that income earned through employment
"is not the only measure of the supporting spouse's ability to pay that should be
considered by a court." Miller v. Miller, 160 N.J. 408, 420 (1999). Courts can
and should also consider other factors, including "[r]eal property, capital assets,
investment portfolio[s], and capacity to earn by 'diligent attention to . . .
business.'" Id. at 420-21 (third alteration in original) (quoting Innes v. Innes,
117 N.J. 496, 503 (1990)).
A-3316-20
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Defendant claims that Schedule C of plaintiff's CIS lists his living
expenses at $6,987 per month. She also emphasizes that his "expense for alcohol
and tobacco," $665 per month, is double his alimony obligation to her—$275
per month. Therefore, defendant argues, she has made a prima facie showing of
changed circumstances and is entitled to further discovery and a plenary hearing.
But, these numbers are taken from plaintiff's 2020 CIS, which the judge
previously reviewed in denying defendant's motion to increase plaintiff's
alimony obligation. In her renewed motion, defendant fails to proffer any
additional information that demonstrates a substantial change in circumstances.
The judge's decision is based upon substantial credible evidence in the record
and defendant's motion seeking additional discovery from plaintiff was properly
denied.
III.
We also reject defendant's argument that a plenary hearing was required
because there were no material factual disputes. See Conforti v. Guliades, 128
N.J. 318, 322 (1992). Moreover, "[a] hearing is not required or warranted in
every contested proceeding for the modification of a judgment or order relating
to alimony." Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998).
The court has the power "to hear and decide motions . . . exclusively upon
A-3316-20
11
affidavits." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). A
plenary hearing should be ordered "only where the affidavits show that there is
a genuine issue as to a material fact, and that the trial judge determines that a
plenary hearing would be helpful." Murphy, 313 N.J. Super. at 580 (Shaw, 138
N.J. Super. at 440). A dispute of material fact is one that "bear[s] directly on
the legal conclusions required to be made and [such] disputes can only be
resolved through a plenary hearing." Spangenberg v. Kolakowski, 442 N.J.
Super. 529, 540-41 (App. Div. 2015).
"[W]here the need for a plenary hearing is not so obvious, the threshold
issue is whether 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);
see also Lepis, 83 N.J. at 159 (holding "a party must clearly demonstrate the
existence of a genuine issue as to a material fact before a hearing is necessary,"
and explaining that "[w]ithout such a standard, courts would be obligated to hold
hearings on every modification application"). Absent such a demonstration, the
judge did not abuse his discretion by not conducting a plenary hearing. And
there were no genuine or substantial issues raised requiring a plenary hearing.
Defendant argues that the competing certifications create a genuine issue
of material fact, thus necessitating a plenary hearing. We note defendant fails
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to point out any conflicting material facts that "bear directly on the legal
conclusions required to be made." Spangenberg, 442 N.J. Super. at 540-41. As
the judge aptly noted, defendant "simply argues that the current alimony order
is neither 'equitable nor just.'" Defendant bases her argument solely upon
comparing her monthly budget with plaintiff's as reflected on his previous CIS .
The judge highlighted he already granted discovery to defendant on her earlier
motion that did not warrant increasing plaintiff's alimony obligation and "was
really more than the circumstances warranted at that point." The judge was
correct in his analysis.
We conclude the remaining arguments raised by defendant—to the extent
we have not addressed them—lack sufficient merit to warrant any further
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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