Twice Bitten, Thrice Shy: A Cautionary Tale for Repeat Litigants Seeking a Reduction in Alimony

A recent Appellate Division opinion warns alimony payors who repeatedly seek a reduction in their alimony obligation not to wear out their welcome in the courthouse.  In Sowa v. Sowa, the court found an obligor’s third motion requesting a decrease in his support payments to improperly seek “reconsideration of a reconsideration” and denied the motion, awarding counsel fees to the supported spouse.

In this case, the defendant appealed from a November 2016 Order denying his motion for reconsideration of a May 2016 Order, which denied his request to modify his alimony and child support obligations.  The parties in Sowa had been divorced since November 2013, when they entered into a Marital Settlement Agreement (MSA).  At the time of the divorce, the defendant had been unemployed.  Presumably relying upon his pre-divorce income, the MSA provided for alimony and child support but afforded the defendant the opportunity to seek a reduction in his obligation if he was still unemployed six months after the entry of the divorce.

The defendant filed his first motion to terminate alimony and modify child support in December 2014.  It was denied in January 2015, when the family court judge found that the defendant had not exhausted his job search in good faith before applying for a reduction.  The defendant filed a motion for reconsideration, which was denied in March 2015.

In August 2015, the defendant filed another motion to terminate alimony and modify child support, as well as suspend his life insurance and college tuition obligations based upon his unemployment.  Later that month, the defendant obtained employment.  He wrote to the court to apprise the judge of his new job, but did not formally amend his motion.  Moreover, the Case Information Statement (CIS) filed with his motion failed to append substantiating documentation, including tax returns and paystubs.

In February 2016, the family court denied the defendant’s motion.  In doing so, the court noted that the MSA acknowledged and addressed the defendant’s unemployment and also admonished the defendant for failing to file a complete CIS.   The court ordered the parties to attend a post-judgment early settlement panel (ESP) and denied all other requested relief.  Following the unsuccessful ESP, the court scheduled a plenary hearing in a May 2016 Order.  The plaintiff objected to the scheduling of a plenary hearing, arguing that all relief sought in the motion was denied and there was nothing pending before the court.  The family court ultimately rescinded the May 2016 Order, finding that because the defendant had failed to make a prima facie case of changed circumstances, he was not entitled to a plenary hearing.  In so holding, the court incorporated its written statement of reasons from the February 2016 Order.

In June 2016, the defendant filed a motion for reconsideration. The plaintiff cross-moved for counsel fees.  The family court denied the defendant’s motion, stating that because the June 2016 motion sought the same relief under the same facts as the January 2015 motion, the June 2016 motion was essentially an improper motion for “reconsideration of a reconsideration.”  The court also awarded counsel fees to the plaintiff due to the defendant’s “bad faith.”

On appeal, the Appellate Division affirmed the November 2016 Order, except that it remanded on the counsel fee issue for further fact-finding.  In so holding,  the appellate court cited to the heightened standard for motions for reconsideration, finding that reconsideration is not appropriate merely because a litigant is unhappy with the original outcome.  The court found this motion to be a “reconsideration of a reconsideration” because it set forth the same facts as the January 2015 motion.  Evidently, adding requested relief related to his life insurance and college tuition obligations was not enough to sufficiently revamp the motion to avoid it being deemed to be duplicative.  Had the defendant formally amended his motion to account for his new employment and salary, there may have been a different outcome.  Moreover, had the defendant filed a complete CIS with updated financial information, perhaps the court would have perceived sufficient differences between the two motions to avoid considering them to be one and the same.  Accordingly, a prudent litigant filing a second or third motion for modification must take care to base the motion on new facts, a new change in circumstances, or substantially change the relief sought so it does not look like the same motion being re-filed again and again.  I take this opinion to mean that circumstances must meaningfully change between the filing of the subsequent motions to warrant returning to court.

With respect to the denial of a plenary hearing, the appellate court found that there was no substantial change in circumstances between the time of divorce and the motion(s) to establish a prima facie case for the reduction application.  Ironically, had the defendant formally amended his motion with information regarding his new employment, he may have demonstrated a change in circumstances to warrant further inquiry on the issue, and ultimately obtain a reduction.  The court further found that a plenary hearing is unnecessary where the court is familiar with the parties through extensive motion practice.  Again, filing repeated motions on the same issue created further hurdles for the defendant to obtain his sought-after relief.

On a final note, it is important to highlight that the language of the MSA in Sowa, which was designed to protect the defendant, ultimately proved fatal to his application.  The MSA gave him the option to apply for a reduction in six months if he were still unemployed.  By acknowledging his unemployed status, the MSA made same the “baseline” by which to measure the defendant’s application.  The court construed this, perhaps wrongly, to mean that the defendant needed to show a change in circumstances from his unemployed circumstances at the time of the divorce in order to succeed on a modification application.  This interpretation, in my opinion, defies the logic of this language in the MSA and its intended purpose.  Nonetheless, litigants negotiating MSAs in similar scenarios should include very specific language about sustained unemployment and its effect on an obligor’s ability to apply for modification to avoid such a reading.