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Storey v. Storey

December 15, 2004

ROBERT STOREY, PLAINTIFF-APPELLANT,
v.
ROSEANN STOREY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-786-98A.

Before Judges Skillman,*fn1 Collester and Grall.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 13, 2004

Plaintiff Robert Storey appeals from a post-judgment order entered after remand for"a plenary hearing to permit him to attempt to establish changed circumstances warranting modification or outright termination of alimony." Storey v. Storey, No. A-3782-01 (App. Div. April 11, 2003) (slip op. at 9). Mr. Storey was earning $111,000 per year as a computer hardware specialist when he lost his job due to a reduction in force. One month later he decided to become a massage therapist, and he now earns $300 per week. The trial judge imputed to Mr. Storey earnings of $60,000, based on prevailing wages for computer service technicians, and reduced his alimony obligation from $480 to $280 per week. Mr. Storey argues that because he lost his job due to a reduction in force, his alimony obligation must be based on his present not imputed earnings.

We disagree and hold that in order to obtain a reduction in alimony based on current earnings, an obligor who has selected a new, less lucrative career must establish that the benefits he or she derives from the career change substantially outweigh the disadvantages to the supported spouse. Absent that showing, a judge should deny the motion, in effect imputing prior earnings, unless the obligor establishes, in the alternative, that his capacity to earn is diminished, in which case the judge should impute earnings consistent with the obligor's capacity to earn in light of the obligor's background and experience. The burden of persuasion is on the obligor.

In evaluating applications to modify support based on a substantial change in circumstances, Lepis v. Lepis, 83 N.J. 139 (1980); N.J.S.A. 2A:34-23, this court has rejected"bright line" standards that base modification solely on"voluntariness,""fault," or"good faith," which we have described as having"the virtue of simplicity but little else." Deegan v. Deegan, 254 N.J. Super. 350, 355-57 (App. Div. 1992); see also Kuron v. Hamilton, 331 N.J. Super. 561, 570-71 (App. Div. 2000). Instead, consistent with statutory mandate, the court has developed standards that require a broad focus on the"circumstances of the parties and the nature of the case" so as to set an alimony amount that is"fit, reasonable and just." N.J.S.A. 2A:34-23.

When an alimony obligor changes career, the obligor is not free to disregard the pre-existing duty to provide support. See Deegan, supra, 254 N.J. Super. at 358-59. The prior support obligation is a circumstance relevant to support that is"fit, reasonable and just." N.J.S.A. 2A:34-23. In Deegan, this court confronted"the question of what standard should apply in determining whether unanticipated early retirement, or any other voluntary life style alteration, constitutes a change in circumstances warranting a support modification...."

Deegan, supra, 254 N.J. Super. at 352 (emphasis added). The Deegan standard requires courts to determine whether the obligor's decision is"reasonable" under the circumstances and, ultimately, whether the advantages to the supporting spouse"substantially outweigh" the disadvantages to the supported spouse. Id. at 357-58.*fn2 Deegan involved an application for modification based on early retirement, and, as Deegan suggests, it is appropriate to apply the same standard in a case involving a change in career. Id. at 352. Both cases require a balancing of the obligor's interest in the change and the supported spouse's interest in maintaining the standard of living the alimony award allows.

The Legislature has left applications to modify alimony to the broad discretion of trial judges. N.J.S.A. 2A:34-23; see Innes v. Innes, 117 N.J. 496, 504 (1990). Deegan identifies factors to guide the exercise of discretion in evaluating the"reasonableness" and"relative advantages" of an early retirement. Deegan, supra, 254 N.J. Super. at 356-57. Those factors are: the reasons for retirement (motive); the age and health of the party; the ability to pay and need for support; and the timing of the retirement (including the opportunity for the supporting spouse to prepare for the change). Ibid.

The factors relevant to the reasonableness and relative advantages of a career change are substantially similar to those relevant to early retirement. Those factors include: the reasons for the career change (both the reasons for leaving prior employment and the reasons for selecting the new job); disparity between prior and present earnings; efforts to find work at comparable pay; the extent to which the new career draws or builds upon education, skills and experience; the availability of work; the extent to which the new career offers opportunities for enhanced earnings in the future; age and health; and the former spouse's need for support. See N.J.S.A. 2A:34-23b(1) (need and ability to pay), (3) (age, physical and emotional health), (4) (marital standard of living), (5) (earning capacities, educational levels, vocational skills and employability), (7) (parental responsibility for children). The list is not exhaustive. N.J.S.A. 2A:34-23b(13) (directing courts to consider any other factors deemed relevant).

In evaluating reasons and balancing relative advantages, courts should be guided by the factors the Legislature has identified as relevant to alimony. See N.J.S.A. 2A:34-23b(1) to -23b(13). A focus on the statutory criteria will guide the exercise of discretion and promote predictability in decision making. Reasons such as lack of work in one's field, health condition, the need to care for a child and loss of professional license are related to ability to obtain or perform work in the prior field and are entitled to significant weight. N.J.S.A. 2A:34-23b(3), (5), (7); see, e.g., Kuron, supra, 331 N.J. Super. at 570 (loss of professional license); Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (disability); Deegan, supra, 254 N.J. Super. at 358 (referencing health); Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955) (demand for labor), certif. denied, 20 N.J. 307 (1956); Caplan v. Caplan, 364 N.J. Super. 68, 90 (App. Div. 2003) (obligation to care for a special needs child). In contrast, reasons such as a desire for a less demanding lifestyle, a new relationship or better working conditions, while rational and entitled to consideration as the trial judge deems appropriate, N.J.S.A. 2A:34-23b(13), are entitled to less weight, because those reasons are not statutorily recognized. See N.J.S.A. 2A:34-23b. Where the reason is acquisition of education, training or experience substantially likely to enhance future earnings, the supported spouse's ability to postpone or forego support for a defined period in the interest of enhanced alimony or child support in the future, and the obligor's ability to compensate for lost income by temporarily adjusting his or her lifestyle should be considered in balancing relative advantages. See N.J.S.A. 2A:34-23b(8)(education and training to enhance earning capacity); Crews v. Crews, 164 N.J. 11 (2000) (increase in alimony); Isaacson v. Isaacson, 348 N.J. Super. 560 (App. Div.), certif. denied, 174 N.J. 364 (2002) (increase in child support). Similarly, where the reason is a relocation to permit pursuit of a new relationship, the third party's ability to move may be relevant to the balance of advantages. Cf. Baures v. Lewis, 167 N.J. 91, 116 (2001) (discussing consideration of ability to relocate in the context of custody).

In the end, the competing interests implicated by a career change resulting in reduced income cannot be resolved by simply inquiring whether the precipitating event was"voluntary" or"involuntary," and then relying on present income if"involuntary." Elimination of an alimony obligation is not the"silver lining" in every"cloud" of involuntary termination. Each case requires a careful evaluation of"reasonableness" and"relative advantages" under the totality of the circumstances.

To clarify and illustrate the point, we distinguish Dorfman v. Dorfman, 315 N.J. Super. 511 (App. Div. 1998), a case in which an accountant, following termination by his firm, accepted lower paying work as an accountant after a concerted effort to find the same work at comparable pay. An obligor who makes that showing demonstrates that he or she is working at capacity in employment consistent with skills and experience; stated differently, that obligor establishes that he or she is not voluntarily underemployed in the new job. Id. at 516-17 (proofs established a prima facie case for modification). In such cases, absent evidence undermining the supporting spouse's proofs, there is no need for further inquiry and alimony should be recalculated based on current financial circumstances. This conclusion is mandated by a well-established principle, i.e., support orders are based on the obligor's ability to pay. See Bonanno v. Bonanno, 4 N.J. 268, 275 (1950); Caplan, supra, 364 N.J. Super. at 88-89 (App. Div. 2003). In contrast, where a layoff is followed by a shift to a job that does not draw on prior skills and experience, the obligor must explain that choice with reference to other options explored and efforts to find work with comparable pay. See, e.g., ...


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