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.

Court Denies Wife's Appeal After Downward Modification Of Husband's Child Support

In Licciardi v. Licciardi, an Appellate Division case out of Morris County, the Plaintiff appealed a post-judgment Family Court Order that reduced the Defendant's child support payments, increased his responsibility to pay for their children's extracurricular expenses, and denied her Motion to compel the Defendant to produce documents. After being married for over ten (10) years and having two (2) children together the parties divorced. Rather than a trial on all issues, they entered into a property settlement agreement (PSA) weherin the Defendant agreed to pay child support in the amount of $3,300 a month based upon his gross income of $175,000. Further, the PSA acknowledged that the Defendant was paying child support in excess of the NJ Child Support Guidelines found in Rule 5:6A. The Defendant also agreed not to seek a reduction in his child support obligation for "three years regardless of any change in circumstances . . . . and the child support may be reviewed at the expiration of three years . . . and every two years thereafter until both children are emancipated." In 2010, the Defendant was granted a reduction in his child support obligation. In 2012, two and half years later, the Defendant once again filed for a reduction in his child support. The Plaintiff opposed the Motion seeking an upward adjustment in child support citing that her financial circumstances had taken a down turn and claiming the Defendant's financial information was deceitful. The court again reduced the Defendant's child support and increased his obligation to pay for the children's extracurricular activities. The court found that the parties had established substantial and permanent changed circumstances based upon the Defendant paying monthly child support for a third child that was born from a second wife that he had since divorced. The Plaintiff appealed the Order. According to the Appellate Division, courts are authorized by statute to "revise[] and alter[]" child support Orders "from time to time as circumstances may require." N.J.S.A. 2A:34-23. The party moving for the modification bears the burden of making a prima facie showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 420, 734 A.2d 752 (1999). Changed circumstances "include an increase in the cost of living, an increase or decrease in the income of the supporting or supported spouse, cohabitation of the dependent spouse, illness or disability arising after the entry of the judgment, and changes in federal tax law." J.B. v. W.B., 215 N.J. 305, 327,73 A.3d 405 (2013). In this case, the Plaintiff argued that the Defendant was not entitled to a reduction in child support because his financial disclosures were incomplete and deceitful. The Appellate Court rejected this argument because the Plaintiff's claims were simply bare assertions that were not supported by any competent, documentary evidence. Therefore, the court affirmed the decision of the Family Court. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification, alimony, divorce 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.

Equitable Distribution By Property Settlement Agreement Not Modified By Court

Kurbel v. Kurbel, is a New Jersey Appellate Division case coming out of Sussex County, in which the Defendant appealed from 2013 Family Court Order that modified the parties' property settlement agreement (PSA) in a post-judgment action following their divorce regarding provisions that concerned his alimony and equitable distribution obligations. The Plaintiff filed for divorce from the Defendant in 2001 after 31 years of marriage and subsequently began to cohabitate with her boyfriend. The parties' divorce was finalized in a final divorce judgment in 2002 which incorporated a PSA. The PSA included a provision requiring the Defendant to pay to the Plaintiff "limited duration alimony" from 2002 until 2023 for the ten (10) months a year that the Defendant worked as a teacher. The payments began at $150 per month and were to increase by increments of $25 over twenty-one (21) years until the payments were $650 per month by 2023. In 2010, the Defendant filed a Motion seeking to terminate his alimony obligation based upon changed circumstances because he claimed he was forced to retire from his job due to a physical disability. The Defendant also argued that the Plaintiff's salary had more than doubled since the divorce and that she was cohabitating with her boyfriend which eliminated her need for alimony. In 2013, the court granted the Defendant's Motion to terminate his alimony payments. However, the Family Court also determined that the termination of the alimony created a windfall to the Defendant and noted that if the PSA had been equitably negotiated, the Plaintiff would have received more than three times the amount she was scheduled to receive under the full payout of the payment schedules according to the PSA. Therefore, the court ordered that the Defendant's equitable distribution payments be doubled until 2023 and that he was to pay $2500 towards the Plaintiff's counsel fees. The Defendant appealed from this decision citing that it was unfair to modify the PSA and award counsel fees in the Plaintiff's favor. The Appellate Court agreed with the Defendant. According to the Appellate Court, applications for relief from equitable distribution provisions found in PSAs are subject to review under Rule 4:50-1. Miller v. Miller, 160 N.J. 408, 418 (1999). Further, in matrimonial actions, PSAs, which are "essentially consensual and voluntary in character[,]" are "entitled to considerable weight with respect to their validity and enforceability," if they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); See also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Court should rarely modify or set aside a PSA "absent clean and convincing evidence of fraud or other compelling circumstances." N.H. v. H.H., 418 N.J. Super. 262, 280 (App. Div. 2011); Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.) certif. denied, 180 N.J. 354 (2004). In this case, both parties were represented by attorneys during the negotiation and execution of the PSA and both had ample time to review and understand its provisions. Therefore, the Family Court mistakenly exercised its discretion in modifying the equitable distribution payment schedule in the PSA. Property Settlement Agreements (PSA) are very common today. If you have questions regarding how an agreement should be drafted to best protect your interests with regard to alimony, equitable distribution, or any other disputed issue it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony, post-judgment modification, parenting time or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney

Equitable Distribution Impacts Alimony Calculation

In the recent Appellate Division case, Overbay v. Overbay, the Defendant Mary Ellen Overbay appealed from a 2013 Family Court Order that reduced her alimony award and the amount of life insurance that her ex-husband, the Plaintiff Bruce Overbay, must maintain for her benefit as part of the process of equitable distribution. The parties in this case were divorced in 2002 following a thirty-one year marriage. All three (3) of their children were emancipated at the time of their divorce. The Plaintiff is currently seventy years old and the Defendant is sixty-seven. At the time of their divorce, the Plaintiff was working for ExxonMobil earning $132,000 per year. The Defendant was not in good health at the time of the divorce and was teaching two classes at Seton Hall University and earned $12,000 a year. Given her significant medical problems, the judge found that her "future employability [was] uncertain." The court ordered equitable distribution and determined that the Plaintiff should pay to the Defendant $3,000 a month in alimony. Both parties appealed and the Appellate Court affirmed on all issues regarding equitable distribution but remanded for a re-calculation of alimony. Following a hearing, the Family Court judge ordered the Plaintiff to pay $3,750 a month in alimony and again the parties appealed. Again, the Appellate Court reversed the lower court's decision and reinstituted the Defendant's monthly budget to reflect $8,000, according to Rule 2:10-5. The Appellate Court then remanded back to the Family Court to modify the alimony award consistent with its ruling. Shortly thereafter, the Plaintiff filed a Motion for a downward modification of his alimony obligation based upon a reduction in his salary. The judge found that the Plaintiff had "proven a substantial and permanent change in circumstances based upon a change in employment at a reduced salary" and that the Defendant had a "decrease in the amount of alimony needed due to an increase in her income." In 2013, the Plaintiff's alimony obligation was reduced to $1050 a month and reduced the amount of life insurance that the Plaintiff had to maintain to $150,000. This appeal followed. The Appellate Court found that in determining an award of alimony, N.J.S.A. 2A:34-23(b) directs that a court should consider a set of statutorily defined factors to determine the obligation amount. The goal of an alimony award is to help the supported spouse to achieve a reasonably comparable lifestyle to what was enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). A judge may modify alimony based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). "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). However, this is only one factor that is considered and other factors such as personal assets and capacity to earn should also be considered. The Appellate Division then re-calculated the Plaintiff's alimony obligation retroactively to compensate for the slow decline in his salary and ordered that from 2013 forward he pay $2,000 a month in alimony and have to pay arrearage amounts pursuant to an established schedule. The equitable distribution of assets and alimony are of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts or alimony it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony contested divorce, uncontested divorce, spousal support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Court Denies Husband Alimony Reduction Based On Pre And Post Marital Lifestyles

In the recent Appellate Division case, Katchisin v. Katchisin, the Defendant Thomas Katchisin, appealed from a denial of his post-judgment application to terminate or modify his alimony obligation to his ex-wife. In his appeal, the Defendant argued that he successfully demonstrated a change in circumstances based upon the Plaintiff's increased income and disability status to warrant a modification of his alimony. The Appellate Court affirmed the decision of the Family Court based upon the pre and post divorce marital lifestyles of the parties. The parties in this case were married for twenty-eight (28) years and divorced in 2002. Their final divorce judgment incorporated a property settlement agreement (PSA) in which the Defendant agreed to pay to the Plaintiff $11,500 per year ($221 per week) in permanent alimony with the provision that "alimony shall terminate upon the death or either the plaintiff or the defendant [or] remarriage of the plaintiff, and may be reconsidered if the plaintiff cohabits with anyone per New Jersey case la at the time of such cohabitation." In 2013, the Defendant filed an application with the court to terminate or reduce his alimony obligation due to changed circumstances resulting from his becoming 100% disabled after his retirement. At oral argument, the Defendant argued that his increased disability status, his retirement, and his decreased earnings represented a substantial change in circumstances warranting the termination or reduction of his alimony obligation. The Plaintiff argued that the Defendant's income had actually increased and his income had become untaxed. The Family Court denied the Defendant's Motion and noted that he did not present any evidence of his increased disability. In its holding, the Appellate Court found that "the purpose of alimony is to maintain the parties' pre-separation standard of living." Steneken v. Steneken, N.J. 290, 298-99 (2005). The court may award alimony " as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. The award is always "subject to review or modification by our courts based upon a showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 419 (1999). In affirming the Family Courts denial of the Defendant's Motion, the Appellate Division held that the lower court correctly addressed the modification issue by considering the Plaintiff's standard of living at the time of the divorce, and comparing it to her standard of living today. The Family Court correctly determined that while the Defendant was, at present, living above the marital lifestyle, the Plaintiff could not achieve the prior marital lifestyle without the benefit of the original alimony award. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation or any other court mandated legal obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification, divorce, child support, 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.

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.