On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County.
Approved for Publication June 11, 1997.
Before Judges Long, Skillman and A.a. Rodriguez. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by
After a 22 year marriage and two children, plaintiff, Arthur Stamberg, and defendant, Marilyn Stamberg, were divorced in 1983. The final judgment provided, among other things, that Mr. Stamberg would pay Mrs. Stamberg $450 per week in alimony. In 1995, Mr. Stamberg moved for termination of his alimony obligations. In support of his motion, he claimed that in 1994 he earned $156,000 per year but that since that time he had suffered reverses in both his health and his financial circumstances. More particularly, he stated that in 1995 he was diagnosed with an inflammatory neurological disease called mononeuritis multiplex. As a result, Mr. Stamberg claims that he is completely disabled and cannot stand for "any appreciable period of time." He can only walk with "assistance due to his constant pain, nerve damage, and muscle weakness." His doctors indicate that the "duration of this disability is indefinite and he is unable to work. Prognosis is uncertain at this stage." As a result of his medical condition and his employer's financial problems, Mr. Stamberg's employment was terminated in September, 1995. He did not receive any severance pay.
According to his certifications, Mr. Stamberg continued making his support payments by borrowing against a home equity loan on the home he shared with his new wife. He applied for disability benefits from Social Security as well as private disability benefits owed to him under an insurance policy from Provident Life and Accident Insurance Co. which he purchased after his divorce. According to Mr. Stamberg's reply certification, he now receives $14,880 per year in Social Security benefits, $45,120 in private disability insurance benefits and $27,600 pension, totalling approximately $87,000 annual income. The private disability benefits will end in three years.
In opposition to Mr. Stamberg's motion, Mrs. Stamberg filed a notice of cross-motion to enforce litigants' rights seeking the following relief: (1) discovery relating to Mr. Stamberg's finances, (2) payment of alimony arrears, and (3) counsel fees and costs. In support of her motion, Mrs. Stamberg noted that the alimony award was based on Mr. Stamberg's earnings in 1982 or 1983 of $99,000 per year and that, in any event, Mr. Stamberg's present income is greater than the conceded $87,000, which does not include distributions from IRA accounts worth almost $500,000 held for Mr. Stamberg by Putnam & Lord Abbot. In response, Mr. Stamberg did not deny receiving IRA income but certified that his IRAs had been subject to equitable distribution and thus did not constitute a legitimate alimony base. In addition, he claimed that Mrs. Stamberg had, since the divorce, received "a substantial inheritance from her deceased parents." Mrs. Stamberg did not deny receipt of such inheritance.
In December, 1995, the trial Judge reserved decision on Mr. Stamberg's request for termination of alimony pending a plenary hearing. The Judge also granted Mrs. Stamberg's request for payment of alimony arrears and for certain discovery. As the discovery deadline approached, Mr. Stamberg requested a conference with the trial Judge to resolve his former wife's refusal to participate in discovery of her financial affairs. In a February, 1996 letter opinion following a phone conference, the Judge concluded that Mrs. Stamberg was not required to produce evidence of her financial affairs because Mr. Stamberg had not yet made a prima facie showing of his changed circumstances. The letter stated:
The issue before this Court is whether Mrs. Stamberg should be required to produce the financial information requested by Mr. Stamberg. Under Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), a party requesting modification of his support obligation must make a prima facie showing of changed circumstances before the supported party is required to produce financial information. At first glance, Mr. Stamberg's present level of income appears to be almost the same as his level of income when his alimony obligation was established. Since there presently is no showing of changed circumstances, Mrs. Stamberg is not required to come forward with discovery.
Discovery of Mr. Stamberg's financial information was extended and a plenary hearing was scheduled to determine whether he had suffered a change of circumstances warranting a modification of his alimony obligations.
Shortly before the scheduled hearing date, Mr. Stamberg requested, by letter in lieu of subpoena, that his former wife produce various financial documents at the hearing. Mrs. Stamberg filed a motion on short notice to quash the subpoena based on the Judge's earlier letter opinion. Meanwhile, the plenary hearing was adjourned due to the reassignment of the original trial Judge to another county. Mr. Stamberg then cross-moved, seeking: (1) the scheduling of a new plenary hearing date; (2) suspension of his alimony obligations pending the plenary hearing; (3) discovery of his former wife's finances; and (4) costs and attorneys fees.
A new trial Judge was then assigned to the case. On May 6, 1996, he informed the parties that he would reconsider the prior order for a plenary hearing in light of the statement in the prior Judge's letter opinion that Mr. Stamberg had not yet made a prima facie showing of changed circumstances. The Judge informed the parties that, pending his decision, there would be no plenary hearing on the scheduled date. Instead, he indicated that he would hear oral argument on the need for a plenary hearing as well as on the pending motion and cross-motion.
At the oral argument, the parties disputed Mr. Stamberg's income. Mrs. Stamberg claimed that it was actually about $116,000 if the IRA income was included. Again, Mr. Stamberg did not deny receipt of the IRA payments but he did not reveal the amount of those payments. He also argued that they were not includable in calculating his income because they had been part of equitable distribution. Likewise, he argued that the $87,000 he was conceding for the purpose of the motion actually included his pension which previously had been the subject of equitable distribution. Mrs. Stamberg countered that, even at the $87,000 figure, Mr. Stamberg did not establish a change in his circumstances within the meaning of Lepis v. Lepis, 83 N.J. 139, 416 A.2d ...