On appeal from the Superior Court, Chancery Division, Family Part, Essex County.
King, Long and R.s. Cohen. The opinion of the court was delivered by Long, J.A.D.
In this post-judgment matrimonial action, defendant, Sanford W. Aronson challenges the trial judge's denial of his motion for a modification of the alimony he pays to his former wife, plaintiff, Bernice Aronson (now Bernice Rubenfield). We affirm in part and reverse in part. In so doing, we hold that income generated by plaintiff's inheritance, which is an exempt asset, is eligible for consideration in determining whether the alimony paid by defendant should be modified.
The case arises out of plaintiff's 1988 motion to set alimony arrears and defendant's cross-motion to reduce or terminate alimony, suspend alimony payments pending final disposition of
the motion and to vacate arrears. Defendant's cross-motion was based upon the claim that his financial situation had deteriorated while that of plaintiff had improved since the time of the divorce in 1981. The motion judge fixed alimony arrears at $10,200, entered judgment in that amount in favor of plaintiff, and denied defendant's cross-motion pending discovery and a plenary hearing.
At the plenary hearing, the following facts were established: the parties were married from 1955 to 1981. During that period, defendant practiced dentistry from an office in the marital home in Short Hills. Plaintiff was trained as a dental assistant, but was not employed during the marriage. According to his tax returns, defendant's practice experienced a pattern of growth from 1976 to 1979:
Year Gross Receipts Net Profit
1976 $59,493.00 $21,332.00
1977 $83,518.00 $41,008.00
1978 $95,233.00 $45,947.00
1979 $125,788.00 $72,407.00
On September 5, 1980, defendant suffered injuries in an automobile accident, and was unable to practice until January 1, 1981. Although the accident did not physically restrict defendant's ability to practice, he believed that he lost many of the new patients who attempted to contact him during that period.
In anticipation of the divorce, the parties made an agreement which was incorporated into the final judgment. By the agreement, they resolved all of the outstanding financial issues in the case. Among the provisions in the agreement were the following interrelated clauses:
(2) Defendant shall have the option to purchase plaintiff's interest in the marital home from her at any time before June 1, 1984 at the above stated value, that is, One Hundred Ten Thousand ($110,000) Dollars between now and June 1, 1982, One Hundred Twenty Thousand ($120,000) between June 1, 1982 and June 1, 1983 and One ...