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Dilger v. Dilger

Decided: February 23, 1990.


Bassler, J.s.c.


[242 NJSuper Page 382] Plaintiff, Jeanne M. Dilger, and defendant, William F. Dilger, were divorced in September 1983 after a marriage of 30 years. The judgment of divorce incorporated a property settlement agreement which committed defendant to pay alimony of $1,000 a month. Less than six years after the divorce, defendant elected to take an early retirement and ceased making alimony payments. Plaintiff filed a motion for the enforcement of litigant's rights. Defendant filed a cross-motion to terminate alimony payments. The court is asked to resolve the question of whether voluntary retirement at the age of 62 1/2 years constitutes a change of circumstances justifying termination of the obligation to pay alimony. The court determines that the retirement was not undertaken in good faith and under the circumstances was not reasonable, and therefore, defendant

is not entitled to the relief requested.*fn1

At the time of the divorce in 1983, plaintiff was 54 years of age; defendant, 57. The parties, with the advice of independent counsel and after extensive negotiations, entered into a property settlement agreement. The transcript of the divorce proceedings reveals that "the settlement [was] based upon the husband having a gross income of approximately $60,000 per year; and the wife having a gross income of approximately $7,000 per year." The two children of the marriage were emancipated but defendant agreed to pay for a minimum of two years post-high school education for his son, Mark. Defendant was also required to maintain $106,000 of work-related life insurance for the benefit of plaintiff.

Defendant's obligation to pay alimony of $1,000 a month was to continue until plaintiff's remarriage, plaintiff's co-habitation in avoidance of marriage or the death of either party. "The first happening of any of those events, husband's obligation to pay alimony shall cease." Plaintiff relinquished all of her interest in defendant's pension. Defendant conveyed the marital home to plaintiff and she assumed the obligation to pay the mortgage on it. Defendant's preliminary disclosure statement filed with the court on March 17, 1983 estimated the marital home to be worth $175,000 and the mortgage to be $30,000.

The testimony at the plenary hearing in December 1989 established that defendant had been employed by the New York Stock Exchange for nearly 20 years. In 1987, he earned $85,852; in 1988, he earned $93,211; and in the three and one-half months prior to his retirement in 1989, he earned $42,621.

In anticipation of his retirement, defendant purchased an 86-acre farm in Pennsylvania with a $20,000 deposit and a $60,000 mortgage. His other assets included a bank account of approximately $27,000 and a 401 K plan of approximately $28,000.

Defendant currently receives $75 a month in social security benefits and $1,529.89 a month from his work related annuity for an annual income of $27,370. If he had waited to retire at 65, his annuity would have paid him $1,913 a month. His present wife is now unemployed and suffers from depression.

Plaintiff, employed by Citibank, earned $17,704 in 1987, $17,666 in 1988, and $19,100 in 1989. The unilateral decision of defendant to terminate alimony, done without any advance warning to plaintiff, caused her considerable financial hardship. The mortgage on her home fell into arrears and foreclosure proceedings were threatened. To bring the mortgage current she had to borrow money from a friend. Funds recently received from a personal-injury action were used to pay off the balance of the mortgage in order to remove the threat of another foreclosure action.

Plaintiff's current situation does not obviate the need for alimony. She is 61 and employed fulltime; her net monthly income is $1,095.92; her monthly shelter, transportation and personal expenses total $2,378. Although her son, Mark, who is 27, pays her $250 a month for room and board, he suffers from black lung disease and is not self-sufficient.

Plaintiff will be 65 on February 1, 1994, at which time she will receive a monthly pension benefit of $123 and a social security payment of $634. The only substantial asset plaintiff owns is the house with an assessed value of $310,800. She has placed it on the market for sale with a listing price of $325,000.

It is now an established canon of matrimonial law that alimony, whether determined by award of the court or agreement of the parties, can always be modified on a showing of "changed ...

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