Sowell-Zak v. Zak

• Decision Date: 08 April 2019
• Docket Number: DOCKET NO. A-0472-17T1
• Citation: Sowell-Zak v. Zak, DOCKET NO. A-0472-17T1 (N.J. Super. App. Div. Apr 08, 2019)
• Parties: ELIZABETH SOWELL-ZAK, Plaintiff-Appellant, v. GARY ZAK, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

ELIZABETH SOWELL-ZAK, Plaintiff-Appellant, v. GARY ZAK, Defendant-Respondent.

DOCKET NO. A-0472-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued March 6, 2019

April 8, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fuentes, Vernoia and Moynihan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1164-09.

Elliot S. Solop argued the cause for appellant (Dwyer, Bachman & Newman, LLC, attorneys; Elliot S. Solop, on the briefs).

Ciro A. Spina argued the cause for respondent (Law Offices of Jef Henninger, attorneys; Jef D. Henninger, on the brief).

PER CURIAM

Plaintiff Elizabeth Sowell-Zak appeals from an August 17, 2017 Family Part order denying her motion for reconsideration of the court's April 13, 2017 order that, in pertinent part, terminated her ex-husband, defendant Gary Zak's, alimony obligation, denied plaintiff's request for $5000 in counsel fees under the parties' 2009 Property Settlement Agreement (PSA), and denied plaintiff's claim for $19,898 plus interest for defendant's alleged failure to pay the remainder of an amount due to plaintiff for her share of the agreed upon equitable distribution of marital assets. We affirm.

I.

Married in 1982, the parties divorced in November 2009. The final judgment of divorce incorporated the PSA, which included February 2009 and October 2009 amendments.

In pertinent part, the PSA required that defendant pay plaintiff $7600 per month in alimony. The PSA provided that defendant's alimony obligation "terminate[d] only in the event of one of the following events: (a) the death of either party; (b) the remarriage of [plaintiff]; (c) [plaintiff] entering into a CivilUnion or Domestic Partnership." The PSA also required that defendant pay plaintiff $5000 for her legal fees for the PSA's preparation.¹

Prior to the divorce, defendant had an interest in two companies, Global Essence, Inc., and Global Essence UK, Ltd. (jointly Global Essence), that the parties agreed to value at $1 million for equitable distribution purposes. Under the PSA, defendant agreed to pay plaintiff $270,000 for her waiver of any claim to defendant's interest in Global Essence. The sum was to be paid in monthly installments, with a final "balloon payment" of $92,898 due by February 2014.

In 2016, Global Essence terminated defendant's employment after "significant disagreements . . . between [Global Essence's controlling shareholder] and [defendant led] to tension in the company." Defendant, who was sixty-five years old at the time, sued Global Essence and challenged the validity of the termination. Defendant's counsel advised the litigation would last for two to three years.

In 2016, after his employment terminated, defendant filed a post-judgment motion seeking a temporary suspension of his alimony and other support obligations under the PSA, and a plenary hearing to determine if his alimony"[should] be terminated or otherwise reduced due to . . . defendant's retirement and/or loss of income." Defendant filed a case information statement showing assets valued at $21,000.

Plaintiff opposed the motion, but did not supply the court with a case information statement. She also cross-moved for enforcement² of defendant's obligation to pay the $5000 counsel fee under the PSA, and claimed defendant owed a $19,898 balance plus interest on the balloon payment due for his buyout of her share of his interest in Global Essence.

The motion court heard oral argument on April 29, 2016, and in a detailed order and written statement of reasons found the termination of defendant's employment with Global Essence and reaching a "good faith" retirement age of sixty-five constituted prima facie evidence of "changed circumstances" sufficient to consider his request to modify or terminate his alimony obligation. See Lepis v. Lepis, 83 N.J. 139, 146 (1980) (requiring a showing of "changed circumstances" to modify or terminate an alimony obligation); see also N.J.S.A. 2A:34-23(j)(3).

Based on the record presented at the time, the court also concluded it could not determine whether termination or modification of defendant's alimony obligation was appropriate because "[t]here [were] genuine and substantial issues of material facts" relevant to its consideration of the statutory factors for termination or modification of alimony under N.J.S.A. 2A:34-23(j)(3). For example, the motion court found it was "unable to adequately assess . . . [p]laintiff's ability to adequately save for retirement without knowledge of Social Security income or Case Information Statements as required by [N.J.S.A. 2A:34-23]," at least in part because plaintiff had not filed a case information statement. In addition, the parties argued that the uncertainty concerning defendant's litigation with Global Essence and the fact defendant anticipated the litigation would last several years required a plenary hearing or economic mediation. The parties agreed to engage in mediation to resolve their outstanding disputes.

The parties' mediation occurred in October 2016, but was not successful on the issue of defendant's alimony obligation. However, several days after the mediation concluded, defendant settled his litigation with Global Essence. The company agreed to pay defendant one year's severance pay in the amount of $350,000. Global Essence agreed to buy out defendant's ownership interest fora sum payable at the rate of $87,000 per year for ten years. Defendant began receiving his severance pay in November 2017.

The court scheduled a settlement conference, and the parties submitted supplemental certifications asserting facts relevant to their outstanding claims. The court heard oral argument on the date of the conference, and subsequently entered an April 13, 2017 order and comprehensive statement of reasons supporting its decision granting defendant's motion to terminate his alimony obligation. The motion court found that, based on the record then before it, "a plenary hearing [was] not necessary" because of "the presence of material undisputed facts which did not exist at the time of the initial motion," including defendant's settlement with Global Essence and his receipt of one year's severance pay. The motion court explained that, had such information been before it when the original application was made, it "would have affected [the court's] decision at the time of original motion." The court noted that a plenary hearing is required only where there is a genuine issue of material fact, and the parties' initial and supplemental certifications revealed no disputes of fact precluding a determination of defendant's motion to modify or terminate his alimony obligation.

The motion court analyzed the record presented under N.J.S.A. 2A:34-23(j)(3), which applies when "a retirement application is filed in cases in which there is an existing final alimony [o]rder or enforceable written agreement established prior to the effective date of [September 2014]." The statute lists eight factors for courts to consider:

(a) The age and health of the parties at the time of the application;

(b) The obligor's field of employment and the generally accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for retirement at the obligor's place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

(d) The obligor's motives in retiring, including any pressures to retire applied by the obligor's employer or incentive plans offered by the obligor's employer;

(e) The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

(f) The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;

(g) The obligee's level of financial independence and the financial impact of the obligor's retirement upon the obligee; and(h) Any other relevant factors affecting the parties' respective financial positions.

[N.J.S.A. 2A:34-23(j)(3).]

The motion court made findings as to each factor, and concluded defendant's alimony obligation under the PSA continued during the one-year period he received severance pay from Global Essence. Thus, the court ordered that defendant continue to pay alimony during 2017.

Based on its analysis of the N.J.S.A. 2A:34-23(j)(3) factors, the court further determined the undisputed facts presented in the parties' original and supplemental certifications, and the "limited testimony" of defendant presented during the oral argument, established defendant "met his burden of proof that alimony should terminate as he ha[d] reached the retirement age of" sixty-six. The court did not consider defendant's receipt of the $87,000 per year defendant was to receive from Global Essence because, as part of the equitable distribution of property under the PSA, plaintiff had already been paid $270,000 for her share of defendant's interest in Global Essence. The court further noted defendant paid plaintiff over $600,000 in alimony during the seven years following entry of the judgment of divorce, but plaintiff failed to present any evidence explaining "why she was unable to save any amount over the years or that she was incapable of finding any work." The court explained that defendantretired at full retirement age, there is no evidence he will continue any employment, his income following his receipt of the one year of severance is limited to Social Security benefits and he does not have the financial ability to continue to pay alimony. Thus, the court terminated defenda...