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Milner v. Milner

March 6, 1996


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County.

Approved for Publication March 6, 1996.

Before Judges Skillman, P.g. Levy and Eichen. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by


Plaintiff and defendant were married in 1962. Thereafter, plaintiff worked as a clerk-typist until the parties' first child was born in 1965. Plaintiff stayed out of the workforce for the next twenty years, remaining at home to care for the parties' three children. Defendant graduated from medical school in 1966 and subsequently developed a successful practice as an obstetrician-gynecologist.

The parties were divorced in 1985. At that time, defendant was earning in excess of $100,000 per year from his medical practice, and plaintiff was unemployed. Plaintiff, who had obtained a master's degree from an art school during the marriage, hoped to obtain a position in the field of fine arts.

The settlement agreement incorporated in the judgment of divorce required defendant to pay plaintiff $2,000 alimony per month for a period of ninety-four months. The agreement also provided that "in order for a party to seek a change in the support, the party seeking the change must first make a prima facie showing of their entitlement to a change in the amount of support."

Subsequent to the divorce, plaintiff applied for positions with art galleries, museums, private schools and community colleges. However, she was unable to obtain any permanent position in which she could utilize her education in fine arts. Consequently, plaintiff decided to become a realtor. She worked part time in this field as a "hostess" from 1985 to 1987 while taking the courses required to become licensed. After obtaining her license, plaintiff accepted a position with a real estate brokerage firm in Wilmington, Delaware, where she has remained until the present time. Plaintiff's average net income from this employment during the period from 1989 to 1993 was slightly more than $15,000 per year. Plaintiff and her employer attributed plaintiff's relatively small income to plaintiff's inexperience in the field and to the weakness in the real estate market during the period since plaintiff obtained her license. They also indicated that the market seemed to be stabilizing and that plaintiff could reasonably anticipate that her income would increase in the future.

Shortly before the expiration of the ninety-four month period during which plaintiff was entitled to receive alimony under the judgment of divorce, plaintiff filed a motion to increase alimony and to make defendant's obligation permanent. Based on the evidence presented at a two-day hearing, the Family Part Judge found that "the alimony provided ... in the Final Judgment of Divorce was rehabilitative," that while "no rehabilitation plan" had been "presented" at the time of the divorce, there had been "a vague notion of plaintiff's [becoming] economically self-sufficient" by the end of the ninety-four month period, and that "plaintiff's lack of rehabilitation was not a result of her indolence and not as a result of her lack of energy because she has been diligently applying herself towards an end." The Judge concluded that there had been "a change of circumstances sufficient to warrant the disclosure of defendant's financial data." The Judge then ordered plaintiff to submit a "rehabilitation plan" and ordered both parties to submit current Case Information Statements. The Judge further ordered that the matter would be set down for a plenary hearing "on all issues presented by these facts and relevant to alimony." In the interim, the Judge extended the period of defendant's $2,000 per month alimony obligation for six months.

After entry of this order, the case was transferred to a different Family Part Judge. After a four day hearing, the newly assigned Judge issued an oral decision on April 15, 1994, denying plaintiff any relief. The Judge expressed the view that under N.J.S.A. 2A:34-23, as amended in 1988, L. 1988, c. 153, § 3, rehabilitative alimony may be modified but cannot be changed into permanent alimony. The Judge also expressed the view that a court of equity may have an inherent power to convert rehabilitative alimony into permanent alimony if, for example, the supported spouse was "struck by some unexpected catastrophic illness or disease making it impossible for her or him to continue to work." However, the Judge ruled that this power could not be invoked in the present case because "no credible evidence has been presented ... that this woman in her early fifties is incapable of pursuing any career." The Judge did not make any finding regarding plaintiff's earning capacity or identify any specific field in which plaintiff could obtain employment that would generate greater income than she was already earning as a realtor. The Judge also reaffirmed the finding of the prior trial Judge that plaintiff's failure to obtain a position in the field of fine arts was not the result of "any fault or indolence" on her part.

Plaintiff appeals from the denial of her application for an award of permanent alimony. We reverse and remand for a determination of the appropriate amount of permanent alimony.

An award of rehabilitative alimony may be appropriate "where a short-term or lump-sum award from one party in a divorce will enable [the] former spouse to complete the preparation necessary for economic self-sufficiency." Hill v. Hill, 91 N.J. 506, 509, 453 A.2d 537 (1982). "The basic premise of an award of rehabilitative rather than permanent alimony is an expectation that the supported spouse will be able to obtain employment, or more lucrative employment, at some future date." Shifman v. Shifman, 211 N.J. Super. 189, 194-95, 511 A.2d 687 (App. Div. 1986). Thus, rehabilitative alimony is "payable for a terminable period of time when it is reasonably anticipated that a spouse will no longer need support." McGee v. McGee, 277 N.J. Super. 1, 14 (App. Div. 1994) (quoting Dotsko v. Dotsko, 244 N.J. Super. 668, 677, 583 A.2d 395 (App. Div. 1990)). Therefore, if the supported spouse is unsuccessful in obtaining the kind of employment required for the economic self-sufficiency anticipated at the time of divorce, "this properly may be viewed as a 'changed circumstance' which would justify the continuation of alimony beyond the original termination date." Shifman v. Shifman, supra, 211 N.J. Super. at 195; see also Strauss v. Strauss, 160 Vt. 335, 628 A.2d 552, 555-56 (Vt. 1993).

The Family Part Judge erred in concluding that the 1988 amendment of N.J.S.A. 2A:34-23 changed these basic principles. The amendment gave explicit legislative recognition to the concept of rehabilitative alimony previously developed by the courts but did not change the concept in any significant respect. In fact, the Legislature expressly recognized that a provision for rehabilitative rather than permanent alimony is not immutable if the supported spouse fails to achieve the economic self-sufficiency anticipated at the time of the divorce, by providing that "an award of rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award." N.J.S.A. 2A:34-23 (emphasis added). Since a supported spouse's attainment of economic self-sufficiency is the essential anticipated "circumstance" that a court must find to justify an award of rehabilitative alimony, Shifman v. Shifman, supra, the "nonoccurrence" of that circumstance provides the requisite foundation ...

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