Picture this – two spouses in a matrimonial dispute. The husband (or former husband) files a motion to reduce his alimony. In support of that motion, the husband files a certification, under oath, telling his side of the story about how he lost his job, has a disability, or whatever reason it is that has caused his down income. On the flip side, the wife files her response to the husband’s motion, with a certification of her own, telling her side of the story about the husband is still living lavishly, is lying to the court, and is simply doing what he has to do to reduce his payment obligation to her. Not surprisingly, the two versions of events could not be more diametrically opposed.
In that scene, what is the trial judge supposed to do? Is he just supposed to take the husband’s word for it that he can no longer earn what he did before and that his entire financial picture merits a reduction of his support? Is he supposed to believe the wife’s response, about how her former husband is simply just a bad guy who refuses to pay that to which he agreed or was ordered.
Generally – but, of course – not always, a trial judge is not supposed to resolve the question of credibility, or who is telling the truth, simply by reading the papers submitted by each party. When there is a dispute of fact, the judge is supposed to then order a hearing, during which time he will take testimony from the parties and then determine who is credible/truthful. Ordering a hearing, though, does not happen in every case, as almost every case will inevitably involve some dispute of fact, to some degree. If the judge ordered a hearing in each instance, the family part would be even more flooded than they already are.
So at what point has a judge gone "too far" by resolving a dispute of fact on the papers without holding a hearing. The recently decided Appellate Division matter of Scianni v. Scianni presented such a case. Without going into too much detail, former husband sought to reduce his alimony from that set forth in a settlement agreement because he argued that he could no longer earn what he once did. Wife disagreed and espoused on how her ex was still enjoying a lavish lifestyle, complete with a vacation villa in St. Maarten.
In denying the husband’s request for a reduction of his alimony, the trial judge made several findings of credibility on the papers alone, providing as follows in his decision:
[W]hen I read this certification of Mr. Scianni I was very moved. However, in reading the certification of Ms. Scianni, there’s a completely different picture painted of Mr. Scianni. And I realize that the problem that the [c]ourt is so often faced [with], . . . faced every single time I get one of these motions, is that you got two different certifications . . . at completely different ends of the spectrum.
And it’s very difficult to sort truth from fiction, and who’s telling the truth. And oftentimes you’re probably better off just throwing the certifications out the window and making a decision based on something else. However, in this case, what really rings a bell of credibility to me is the certification of Ms. Scianni. She says that, hey, do not believe Mr. Scianni. This is a divorce which was hotly contested. It was, it lasted for approximately four plus years. And that Mr. Scianni . . . knows no boundaries and will do everything he can to not have to pay his obligation and fight me. I would note that Mr. Scianni has been current up until this time. But Ms. Scianni in her certification provides some proofs which certainly raise red flag[s] with the [c]ourt as to whether or not Mr. Scianni is being sincere and candid with the [c]ourt. And I don’t think he is. He’s crying poverty yet he is still able to maintain a vacation villa down in St. Martin at the Ritz Carlton, and I would . . . note that according to the certification of Ms. Scianni, that this was a property which was underwater figuratively in that they owed, the parties owed money on this property. Now the property is current, up to date, paid off, and Mr. Scianni claims, well, you know, it’s the mortgage on the property is really my cousin, but I have to hire a lawyer down in St. Martin to make some changes.
You know, and Ms. Scianni goes on to further state that you know, he claims he’s driving a borrowed car, but he recently was seen driving a Mercedes Benz. If it is a borrowed car, why doesn’t he provide any proof as to who the real owner of the borrowed car is. And if he was to do that, then the [c]ourt . . . might be surprised as to who really is the owner of the borrowed car. That certainly raises a red flag as well.
Ms. Scianni also points out that his practice that he’s still working, that his practice, I should not go by his recent tax returns, that Mr. Scianni has been known to take cash in the past and not declare that on his tax returns, and that it is certainly not beyond Mr. Scianni to do that. This is a woman that has lived with Mr. Scianni, knows what Mr. Scianni is like. And that certainly has a ring of credibility to it as well.
I have highlighted certain portions of the trial court decision above, each of which causes alarm as to the trial court’s findings. The Appellate Division also took issue with several portions of the trial court’s comments, indicating that, while a trial court has broad discretion in reviewing a request to modify alimony, and that not every factual dispute merits a plenary hearing, the factual disputes surrounding the husband’s ability to generate income merited a trial.
It further noted that the "red flags" uncovered by the trial court in the papers does not escape the need for a hearing to properly resolve the factual dispute with testimony, nor does a reliance by the court upon one spouse’s indication that she knows what the other spouse is like. As a result, the Appellate Division not only remanded the matter for further proceedings, but also directed that such proceedings be before a new trial judge in light of the credibility findings already made by the former judge.
This was an interesting decision for a variety of reasons, not the least of which is that not often do we come across cases where an entire decision is overturned on the basis of the credibility findings, or lack thereof. While there is often a gray area as to when a factual dispute between parties merits a hearing with testimony, this case fell beyond that area where the findings of credibility on major facts in dispute was clear and required a reversal.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or email@example.com.