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Weber v. Weber

Decided: April 17, 1986.

CHARLES WEBER, PLAINTIFF-RESPONDENT,
v.
ELENORE G. WEBER, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division, Essex County.

Furman and Skillman.

Per Curiam

Defendant appeals from an order modifying the alimony payable by her former husband. Because we conclude that the trial court premised the determination of alimony upon findings of fact for which there is a lack of adequate support in the record, we reverse.

After 26 years of marriage, the parties were divorced in 1980. As of that time, one child of the marriage, Seth, remained unemancipated. The settlement agreement between the parties gave custody of Seth to defendant. With respect to alimony and child support, the agreement provided:

[T]he husband shall pay to the wife the sum of $1,000 a month unallocated support. . . . It is further agreed and understood between the parties that this amount shall be renegotiated upon . . . Seth graduating from high school and going off to college. . . .

The agreement also provided that the parties would share the costs of Seth's college education equally.

Seth began college full time in January 1985. When the parties were unable to reach agreement in renegotiating alimony, defendant applied to the trial court to fix the amount.

The hearing on the motion focused primarily on defendant's needs and her ability to meet those needs. Defendant testified

that she was married at age 21. She worked for a year and a half after marriage until she became pregnant, and then devoted the next 20 years of her life to raising a family and running a home. She resumed employment part time in 1975.

At the time of the hearing, defendant had two part time jobs. She was employed 20 hours a week at $8 per hour by the Millburn Board of Education teaching remedial reading. She was also employed an average of 10 hours a week at $7.25 per hour by Berlitz School of Language. Defendant testified that her gross income from these employments was $8,273.23 in 1984. She received another $1,200 from a family business and $1,490 in dividends and interest. Defendant also testified that her total monthly living expenses were $1,886.

The trial judge accepted defendant's statement of her present living expenses. However, he assumed that the marital home would be sold within a short time. He concluded that upon the sale of the home defendant's monthly expenses would increase to $2,066. He further concluded that her total income from all sources, including interest income on her share of the proceeds from the sale of marital home, would be between $20,000 and $23,000. Accordingly, an alimony award of $500 a month was ordered to cover the deficit between defendant's living expenses and her own income. The trial judge's order also provided for the termination of this award on March 31, 1988.

We agree with plaintiff that since the parties' settlement agreement specifically contemplated that alimony would be redetermined when Seth went to college, the trial court's obligation was to determine the amount of alimony which would be fair, just and reasonable in light of all the circumstances as of the date of the hearing. N.J.S.A. 2A:34-23; see Martindell v. Martindell, 21 N.J. 341, 355 (1956). We also read the trial judge's opinion to have essentially adopted this approach, since he ...


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