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Clarke v. Clarke

March 08, 2002

FREDERICK CLARKE, PLAINTIFF-APPELLANT,
v.
BARBARA CLARKE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-542-97.

Before Judges Petrella, Kestin and Alley.

The opinion of the court was delivered by: Kestin, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 4, 2002

The parties' marriage was dissolved in a dual judgment of divorce following a trial which concluded on July 30, 1999, with the judge's oral decision. The judgment of divorce was not entered until February 22, 2000, however. On March 1, 2000, plaintiff moved for reconsideration*fn1 of the amount of alimony and of defendant's entitlement, by way of equitable distribution, to any portion of plaintiff's Tier II pension benefits under the Railroad Retirement Act, 45 U.S.C.A. §§ 231 to 231v. Plaintiff appeals from the trial court's order disposing of that motion.

The trial court held a plenary hearing to develop further facts bearing upon the alimony issue, and the judge delivered an oral opinion on August 7, 2000. He found that there had been a curtailment in plaintiff's overtime to the extent that an alimony reduction was warranted from $1,700 to $1,200 per month retroactive to the date the motion for reconsideration was filed. The issue had revolved about the amount of overtime available to and logged by plaintiff in his work for New Jersey Transit as a train car inspector. Plaintiff contended before the trial court and reasserts on appeal that the income figure used to establish the amount of alimony was overstated because the amount of overtime available to him had significantly diminished from the substantial amount he worked on an annual basis during the marriage. He contended further, with supporting testimony from a supervisor, that the reduction was due to job-related changes beyond plaintiff's control and that the availability of overtime was likely to remain diminished or even lessen further in the foreseeable future.

Plaintiff argues that the trial judge misapplied his discretion in establishing the initial $1,700 alimony figure, that he erred in the post-judgment plenary hearing by ruling plaintiff could not inquire further concerning defendant's economic circumstances, and that the alimony adjustment should have been retroactive to the date of the trial court's orally rendered decision in the initial trial rather than to the date of the motion for reconsideration. Our review of the record in the light of the parties' written and oral arguments discloses ample basis in the evidence before the judge——at the times he made his discretionary determinations both in the initial trial and on reconsideration——for the evaluative decisions he made. We are bound to give substantial deference to those decisions, see Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), as long as support can be found for them in the record before the court at the time each decision was made. See Rolnick v. Rolnick, 262 N.J. Super. 343, 355-59 (App. Div. 1993).

Regarding some specific arguments plaintiff makes, it was not incumbent upon the judge to make the future projections contended for by plaintiff; rather it was appropriate for the decisions to be made based upon actual experience in the most recent periods available. As the judge clearly indicated in rendering his decision at the time of divorce, plaintiff is not barred from changed circumstances applications in the future.

It was also within the judge's discretion, in addressing plaintiff's earning capacities, to employ as a benchmark the amount of time plaintiff had devoted to his work during the marriage and to expect him to continue working at that level. Also, the judge did not err in precluding further inquiry into defendant's economic circumstances during the plenary hearing on the reconsideration motion. The parties had had ample opportunity to address those questions during the divorce trial. As questions raised on a motion for reconsideration, the factual issues considered were quite properly limited to plaintiff's overtime. Moreover, we discern no error in the judge's income averaging techniques or the data he used. Plaintiff's assertion of an error respecting his 1995 income is meritless. That year was not considered by the trial judge in striking an average income for the three years preceding the trial: 1996, 1997, and 1998.

Finally, there was no discretionary lapse in setting the effective date of the retroactive alimony adjustment. The initial alimony amount had been fixed based upon the evidence then available and developed; the reduced amount followed from expanded showings based on updated information. Each ruling was correct at the time articulated in the sense of being based on the showings made to the date of decision; the alimony reduction ordered essentially paralleled the diminution of income by reason of reduced overtime as shown in the plenary hearing.

For the foregoing reasons, we affirm those provisions of the order under review dealing with plaintiff's alimony obligations.

In the remaining issue raised on appeal, plaintiff contends that "[t]he court's determination that defendant is entitled to a one-half share of plaintiff's Tier II pension through his employer . . . by qualified domestic relations order at the time of pay status pursuant to the Miller decision is improper." Regarding equitable distribution of his pension rights, plaintiff had moved the trial court to "reconsider the dual judgment of divorce with respect to awarding defendant any portion of plaintiff's Tier II benefit under the Railroad Retirement Act." The judgment of divorce provides:

3. The plaintiff is also the owner of a Tier II pension through his employer, New Jersey Transit. A qualified domestic relations order shall be entered by which the defendant/counterclaimant shall receive her one-half share . . . from the amount of the benefit at [the] time [the pension] enters into pay status, pursuant to the Miller decision."

In ruling on the motion to reconsider the pension distribution, the judge declined to modify the judgment of divorce in that respect, but ...


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