NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

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.

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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 repstein@foxrothschild.com. 

I recently experienced such a scenario where my client had not been paid alimony in quite some time.  She was afraid to file a motion, knowing that her former spouse would come after her with "guns blazing."  Finally, on the verge of financial destitution, she filed a motion to enforce the property settlement agreement compelling the husband to pay.  In response, the husband claimed that the parties had verbally agreed at some point in the past to terminate alimony.  There was no proof in support of his assertion other than his own words that there was such an agreement.  My client denied the existence of the agreement.

It was because of this disputed issue of fact, where the parties' respective certifications stood toe-to-toe with each other, that the court granted a plenary hearing to determine, through the taking of testimony and review of evidence, whether there was a prior agreement to terminate alimony.  The court did afford some interim financial relief, however, recognizing the financial situation faced by my client.

The judge's decision was completely reasonable and understandable - how else was the court to resolve the issue of whether there was an agreement without holding a trial to make that determination?  In fact, I have been on the opposite side of the very same sort of motion, advocating for the existence of a prior verbal agreement to terminate alimony, which the parties lived by for several years as an implied acknowledgment of same.  Ultimately, however, this is a problem that can plague each and every motion.  Whenever a spouse or former spouse seeks to enforce the terms of the settlement agreement, the other party can respond that there was a verbal agreement not to abide by such language, with the hopes of getting a plenary hearing. 

Many settlement agreements contain language that the agreement itself may not be modified unless the change is made in writing, and entered through formal measures.  Even this language, however, is not bulletproof, as a verbal agreement may, in fact, have been made, and the parties, as I reference in the last paragraph, may have lived by it for several years, thereby creating a strong argument for the opposing party.  Notwithstanding, there does arise an issue with the case law calling for a plenary hearing in the face of competing certifications.

I encountered another example recently where a father sought a reduction of his child support.  Every single document submitted on his behalf suggested that his financial situation had, if not improved, at least remained steady.  His certification, however, told a very different story, claiming the "gloom and doom" of his financial situation. Not surprisingly, my client disputed his claims, pointing in large part to the black and white numbers in the exhibits attached to dad's certification. 

Perhaps realizing the fatal defects of his application, dad's response was to the effect of, "mom's story is at odds with mine and, as a result, this court should hold a plenary hearing to find out the truth."  During oral argument, dad told the same story, to which we responded that numbers on a page are not "bells and whistles," or the subject of competing certifications.  Rather, it is simple fact, as it was clear that dad was simply seeking that plenary hearing with the hope of being able to pressure our client into an inequitable settlement since she could not afford a discovery period and trial.

When up against such a situation, it is important that you, as the litigant, point out that the situation is not a matter of competing certifications and credibility, but that the numbers at issue tell the true story.  It is also important to convey to the court that almost every case involves certifications at odds with each other, and that it should take more than simple "pen to paper", with no supporting evidence, to take up the court's time with a time consuming and expensive trial. 

The court calendars are experiencing enough backlog that there needs to be some sort of "gatekeeper" standard to ensure to prevent this sort of litigation.   Where there is a legitimate dispute of fact and credibility, then a hearing should certainly be granted so that testimony can allow the court to reach the truth of the matter.  Unfortunately, as with my prior post regarding motions for reconsideration, this is not always the case.

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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 repstein@foxrothschild.com.