On appeal from the Superior Court, Chancery Division, Family Part, Essex County.
Furman, Petrella and Skillman. The opinion of the court was delivered by Skillman, J.s.c. (temporarily assigned).
This is an appeal from an order denying a motion to increase alimony from $100 to $300 per week and to make it permanent rather than rehabilitative. We affirm, although our decision rests in part on different grounds than those of the trial court.
The parties were married in 1969. No children were born of the marriage. On March 15, 1983, the parties reached a property settlement agreement, which was incorporated in a judgment of divorce entered on April 30, 1984. This agreement provided for the distribution of various assets, including the marital home, automobiles, a vacation condominium, the defendant's business interests, trust funds and securities. It also provided
for the payment by defendant of rehabilitative alimony of $150 per week from March 1983 to March 1985 and of $100 per week from March 1985 to March 1987.
On May 16, 1985, plaintiff moved to increase the amount of alimony and to make such payments permanent. She filed a supporting certification which alleged that her needs had increased since the date of the property settlement agreement. With respect to the rehabilitative nature of her alimony, plaintiff stated that when she entered into the agreement she anticipated being able to obtain employment. However, it later became evident that her various psychiatric problems prevent her from working. A supporting certification from her psychiatrist stated that "Mrs. Shifman is suffering from a dysphoric depressive disorder and in my professional opinion, she probably cannot function in a work environment because of her disorder." Plaintiff also alleged that she suffers from a number of physical maladies which prevent her from working. In an answering certification defendant alleged that plaintiff had exaggerated her needs. He also asserted that she was capable of obtaining employment which would more than cover any deficit between her needs and her income.
The trial court issued a letter opinion on July 15, 1985, which concluded that plaintiff's motion for the modification of alimony should be denied in all respects. Although not expressly stated, it is implicit in the letter opinion, considered in light of the comments made on the record on July 12, 1985, that the trial court concluded that plaintiff had failed to show that there had been a change in circumstances between March 1983 and July 1985 which would justify a modification in the alimony agreed upon by the parties. In addition, the trial court concluded, quoting Avirett v. Avirett, 187 N.J. Super. 380, 386 (Ch.Div.1982), that settlement agreements providing for rehabilitative alimony "must be afforded greater weight and permanency" than those providing for permanent alimony, and that plaintiff
had failed to meet the heavy burden required for modification of voluntary rehabilitative alimony.
Insofar as plaintiff's appeal challenges denial of any increase in alimony, we conclude that the record supports the trial court's finding that plaintiff failed to show changed circumstances between March 1983 and July 1985 which would require such relief. We also conclude that the part of the trial court's order which refused to convert the rehabilitative alimony to permanent alimony should be affirmed, because such relief would be premature. Under the settlement agreement, rehabilitative alimony is scheduled to continue until March 1987, which is almost two years after the motion for modification for alimony was heard and is still almost a year away. We are convinced that a motion to extend the term of alimony payments should not have been entertained until six months before their scheduled termination. In this way the trial court could have determined plaintiff's employability at a time which was reasonably close to when the payment of alimony would expire and hence when plaintiff's alleged need for the continuation of alimony would arise. Furthermore, the trial court could have made a better assessment at that time of the anticipated needs and resources of the parties as of March 1987.
Although we affirm the trial court's order on this basis, it is appropriate for the guidance of counsel and the trial court to comment on the trial court's disposition of plaintiff's motion to convert the award of rehabilitative alimony to permanent alimony. We disagree with the part of the trial court's opinion of July 15, 1985 which stated, relying upon Avirett, supra, that a party seeking modification of rehabilitative alimony must satisfy a higher burden than a party seeking modification of permanent alimony. N.J.S.A. 2A:34-23 authorizes the court to award such alimony "as the circumstances of ...