Man's Appeal To Terminate Alimony After He Retires Is Denied

In Baker v. Baker, the Defendant appealed from a 2013 Family Court Order that denied his Motion to terminate his alimony obligation. After review, the Appellate Division affirmed the decision of the Family Court. The parties in this case were married in 1975 and obtained their divorce in 1998. Their final divorce judgment incorporated a property settlement agreement (PSA) in which the Defendant agreed to pay $10,000 a month in permanent alimony to the Plaintiff. In 2005, the Defendant's job was terminated and at the time he was fired he was earning $900,000 per year. Shortly thereafter, the Defendant got another job as the CEO of a smaller company where he expected to receive a salary of $120,000 with the potential for bonuses that would be commensurate with his previous job. However, the Defendant did not receive a salary or bonuses at this new position as the company was in dire financial straits. In 2008, the Defendant filed a Motion for a reduction in his alimony obligation. The Family Court denied his application. The Defendant appealed and while his appeal was pending he filed two additional Motions for interim relief, which the court also denied. At the time, the Plaintiff voluntarily agreed to accept a decrease to $8,000 a month in her alimony award. The Family Court held a plenary hearing on the issue in 2010 at the conclusion of which the Defendant's alimony was temporarily reduced to $6,666 a month. The Defendant appealed this decision. In 2011, the Appellate Court affirmed the decision of the lower court. In 2012, the Defendant resigned from the company as it was allegedly about to close its doors and he immediately filed a Motion to terminate his alimony obligation. A plenary hearing was held at which both parties testified about their financial troubles and difficulties securing appropriate work. At the conclusion of the hearing the court denied the Defendant's request. According to the court, there had been "no substantial change in circumstances since the last motion on the [d]efendant's side of the equation" and that termination of alimony was not warranted because the Defendant voluntarily retired from his position. Moreover, when employed as his last company, the Defendant had not acted in good faith as he voluntarily went several years without receiving any income while at the same time loaning the company $138,000. Finally, the court found that instead of seeking a position that would enable him to pay alimony, the Defendant was only "interested in high paying jobs. . . ." Therefore, the court imputed $120,000 a year in income to him which was similar to what he could earn as the base salary at his previous job. The court also noted that the Defendant earned about $170,000 a year in unearned income. In the end, the court ordered the Defendant to pay $5,166 per month in alimony. He appealed. According to the Appellate Division, alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. In order to make such a modification a party must show "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980); Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). The ". . . party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Martindell v. Martindell, 21 N.J. 341, 353 (1956). There is no " . . . bright line rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation, instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience." Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). Retirement may constitute a change in circumstances warranting a modification or elimination of alimony. Silvan v.Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993); Deegan v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992). The analysis turns to whether or not the retirement was voluntary or involuntary. If the change in involuntary, all that is required of the analysis is the parties' financial circumstances. If the change was voluntary the court must consider a list of factors such as whether or not the retirement was made in good faith. In this case, the Appellate Division found that the Family Court did not abuse its discretion in finding no changed circumstances and affirmed the decision of the lower court. Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Man's End-Of-Life Situation Did Not Give Rise To Alimony Termination

Rizzolo v. Jones is a New Jersey Appellate Division case in which the Plaintiff appealed from a Family Court denial of his post-judgment Motion to modify or terminate his alimony obligation to the Defendant due to his severely ill health. The Appellate Court reversed the decision of the Family Court. Whether or not an alimony award can be modified is "based upon a claim of changed circumstances . . . . " Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Such determinations will not be overturned "unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). The parties in this case were married in 1982, were separated in 1989, and divorced in 2006. The Plaintiff was 58 years old and the Defendant was 38 years old when they got married. The judge who heard their divorce trial concluded that the Plaintiff, who was "in remarkably good health" at 84, had worked as an attorney for 50 years and was entitled to retire. Although the parties had not lived together for many years at the time of their divorce, the Plaintiff had continued to support the Defendant. The judge concluded that based upon this fact that the parties had a long term marriage and the Defendant was entitled to permanent alimony. The judge awarded the Defendant $300 a week in alimony. The Plaintiff was 89 years old and in ill health when he submitted a Motion to the court to terminate his alimony obligation. He was suffering from prostate cancer, renal failure, and a bone infection at the time. The Family Court found that the Plaintiff had established a prima facie case of changed circumstances and ordered discovery. Miller v. Miller, 160 N.J. 408, 420 (1999). Relying on Miller, Donnelly v. Donnelly, 405 N.J. Super 117, 130-31 (App. Div. 2009), and Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991), all which stand for the proposition that a supporting spouse cannot choose to remain in a position of diminished earning capacity and ignore the obligations of support to one's family, the court found that the Plaintiff did not do enough to meet his alimony obligation because he was a veteran entitled to veteran's benefits and he could have entered himself into a VA facility to address his health needs instead of paying for a relative to care for him at home. The Plaintiff appealed. The Appellate Court agreed with the Plaintiff's argument that no evidence was presented by the Defendant that a bed was ready and available at the VA facility or that the quality of care at the facility compared in any way to the care he was already receiving. The court held that it was not aware of any published cases suggesting that the Plaintiff should have prepared to justify his choice to remain at home receiving end-of-life care instead of entering into a VA facility so that he could maintain his alimony obligation. Further, the analysis in the Miller, Donnelly, and Aronson cases do not deal with end-of-life care questions as was pivotal in this case. Therefore, the decision to modify alimony turns on what is equitable and fair upon consideration of all circumstances of both parties. Lepis v. Lepis, 83 N.J. 139, 158 (1980). Therefore, the court reversed the decision of the Family Court. This being the case, the court held that the Family Court, on remand, may conclude that it is equitable to require the Plaintiff to enter a VA facility against his will to ensure that he meets his alimony obligation until his death. Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992). Being that the laws governing the issues involving alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Does Retirement End Alimony?

In Cusick v. Cusick, the Defendant, Janet Cusick, appealed from a 2013 Family Court order that terminated her right to receive alimony from the Plaintiff, William Cusick based upon his claim that he was forced into retirement. The Order also ended the Plaintiff's obligation to reimburse the Defendant for insurance and medical expenses related to the parties' children. The Appellate Court vacated these parts of the Family Court Order and remanded the case back to the Family Court for a full explanation of the judge's decision and for an application of certain factors to determine if retirement should end his alimony obligation. The parties in this case were married in 1985. From their marriage, two children were born, twins, born in 1990. The divorce Complaint was filed in 2007 and the parties engaged a retired judge to act as a financial arbiter who issued a decision in 2008 awarding the Defendant $300 a week in alimony. At that time the Defendant was 44 years old and the Plaintiff was 63 years old. The arbiter acknowledged that the Plaintiff's "bona fide retirement . . . [would] be a substantial change in circumstances that would warrant modification, if not termination of his alimony obligation." This decision was incorporated into the parties' Final Judgment of Divorce in 2008. In 2013, the Plaintiff filed a Motion with the court to terminate his alimony obligation, certifying that he was forced into retirement and was unable to secure other employment through headhunters or by directly applying for jobs. In his Motion, he stated that his only "guaranteed" income would be his Social Security entitlement of $2,034.30 per month. The Defendant opposed the Motion and sought a Court Order to require the Plaintiff to continue paying his obligation and for arrears including medical insurance and medical treatment expenses. Following oral argument, the Family Court judge denied the Defendant's request and granted the Plaintiff's request to terminate his alimony obligation. The Defendant appealed. According to the Appellate Division: "In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999). A supporting spouse's income is just one of the factor's that should be considered when determining his or her ability to pay support. There are other factors to be considered such as "[r]eal property, capital assets, investment portfolio, and capacity to earn by 'diligent attention to . . . business." Innes v. Innes, 117 N.J. 496, 503 (1990). With regard to retirement age and the termination of alimony, numerous factors must be considered when a court determines whether a party's retirement including "age, health of the [retiring] party, the motives in retiring, the timing of the retirement, ability to pay maintenance even after retirement, and the ability of the other spouse to provide for himself or herself." Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992). The Appellate Court judges held that upon a review of the record, the Family Court judge did not adequately consider all of these factors, or at least, did not articulate such a consideration in reaching the decision that the termination of alimony was warranted. Therefore, the case was remanded back to the Family Court for such a determination. If you anticipate that you may want to petition the court for a modification of your alimony award or any other relief that was awarded in a final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, alimony, child support, custody, parenting time, equitable distribution, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.