S.O. VS. M.O.(FM-04-1788-02, CAMDEN COUNTY AND STATEWIDE)
A-5028-15T3
N.J. Super. Ct. App. Div.Oct 20, 2017Background
- Parties divorced in 2003 by a Dual Final Judgment of Divorce; husband agreed to pay $55,000/year permanent alimony; wife then earned ~$30,000/year and husband ~$200,000/year.
- DFJD provided modification may be sought for cohabitation or "substantial change of circumstances."
- Husband's bonus structure later changed, reducing his total compensation (base raised to $160,000 but bonuses declined); by 2014 his earnings were about $35,000 less than in 2003. Husband remarried and has two minor dependents in new marriage.
- Wife's income rose modestly to about $52,000 by 2014; household expenses decreased somewhat after children were emancipated.
- Husband filed a modification motion in late 2014; service was by mail only (no business-email notice). Court initially treated the motion as unopposed and cut alimony in half; that order was vacated after court found husband misled the court about service and later held a plenary hearing.
- After a two-day plenary hearing, the Family Part denied the modification and awarded the wife partial counsel fees (~$7,961.75). The Appellate Division vacated and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (S.O.) | Defendant's Argument (M.O.) | Held |
|---|---|---|---|
| Whether husband established changed circumstances warranting alimony reduction | Husband argued his $35,000 annual income loss and changed household obligations justify reduction | Wife argued change insufficient; emphasized DFJD and husband’s continuing ability to pay | Court: Husband made a prima facie showing warranting a plenary hearing, but trial court’s ultimate denial lacked adequate consideration of certain factors; remanded for fuller record |
| Whether trial court properly treated husband as voluntarily underemployed / required to seek higher-paying work | Husband argued long tenure and employer-driven bonus change show lack of voluntariness; searching for a $200k job might be risky | Wife argued husband could seek higher-earning employment and should mitigate income loss | Court: Rejected trial court’s finding of voluntary underemployment; employer-driven bonus change and job stability weigh against presuming voluntariness |
| Whether trial court adequately considered wife’s increased earnings and reduced expenses post-emancipation | Husband argued court should consider wife’s $22,000 income increase and decreased expenses to justify reduction | Wife contended increase modest and not dispositive; maintained need for alimony | Court: Trial court did not give explicit sufficient weight to wife’s increased income and lower expenses; remand ordered for updated financial proofs |
| Counsel-fee award to wife | Husband argued fees excessive given comparable net incomes when alimony considered | Wife argued husband’s conduct and unnecessary litigation justified fees | Court: Did not resolve fee issue on merits; held fee award may need reconsideration depending on remand outcome but detected no obvious abuse of discretion in partial award |
Key Cases Cited
- Weitzman v. Weitzman, 228 N.J. Super. 346 (App. Div. 1988) (courts have broad equitable power to modify support orders)
- Lepis v. Lepis, 83 N.J. 139 (1980) (standard for changed circumstances and modification procedure)
- Cesare v. Cesare, 154 N.J. 394 (1998) (deference to Family Part but appellate relief where discretion abused)
- Pascale v. Pascale, 113 N.J. 20 (1988) (appellate review of family-court discretion)
- Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006) (temporary reduction in income may not justify modification)
- Kuron v. Hamilton, 331 N.J. Super. 561 (App. Div. 2000) (good faith of movant is one factor in modification analysis)
- Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992) (insufficient record precludes equitable balancing)
- Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004) (totality of circumstances governs alleged voluntary underemployment)
- Guglielmo v. Guglielmo, 253 N.J. Super. 531 (App. Div. 1992) (remarriage does not eliminate prior alimony obligations)
- Wei v. Wei, 248 N.J. Super. 572 (App. Div. 1991) (new spouse’s obligations do not excuse alimony)
- Strahan v. Strahan, 402 N.J. Super. 298 (App. Div. 2008) (abuse-of-discretion standard for Family Part counsel-fee awards)
- Spangenberg v. Kolakowaski, 442 N.J. Super. 529 (App. Div. 2015) (2014 alimony statutory amendments do not apply retroactively to pre-amendment agreed alimony)