On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-001459-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Sabatino.
In this post-judgment matrimonial case, the Family Part issued an order on June 30, 2006 reducing the monthly alimony obligation of defendant Gary D. Baker (the "ex-husband") from $9,500 to $7,500. Plaintiff Susanne G. Baker (the "ex-wife") appeals the alimony modification. Although we affirm the Family Part's threshold determination that the ex-husband's motion papers furnished a prima facie showing of changed circumstances, we vacate the alimony reduction, without prejudice, and remand the matter for a plenary hearing.
The parties were married in 1968. They divorced on February 2, 2000 after thirty-one years of marriage. They have two emancipated children. The ex-husband has remarried. At the time of the motion proceedings now on review, the ex-husband was sixty-three years old, and the ex-wife was age fifty-nine.
For many years, the ex-husband worked in a trucking business, Windsor Distribution, Inc. ("Windsor"), which once specialized in furniture deliveries. At the time of the divorce, the ex-husband owned a fifty percent interest in Windsor. The ex-wife did not work during the marriage. She denies working since the divorce, although she did claim a tax deduction in 2004 associated with an investment in some form of septic business.
According to his income tax returns, the ex-husband earned net income of $264,202 in 1998, the calendar year in which the ex-wife filed her divorce complaint. Pursuant to the Property Settlement Agreement (PSA) attached to the final judgment, the parties agreed in their divorce settlement to allocate substantial assets--about $944,825 to the ex-wife, and $655,700 to the ex-husband, along with the retention of his interest in his trucking company. Both parties were represented by counsel in the divorce proceedings.
As part of the terms of the divorce, the ex-husband agreed to pay the ex-wife permanent alimony of $9,500 per month. However, Article II, §7 of the PSA recites that the ex-husband's alimony "may be renegotiated at [ex-husband's] option, either upon husband's retirement from active employment or upon [exhusband's] suffering from any medically determinable physical or mental impairment that renders him unable to engage in any substantial gainful employment or significantly reduces his income."
The ex-husband argues that his right to such a renegotiation has been triggered. He notes that he has sold his interest in the trucking business, which has been on the decline since September 11, 2001, to his brother-in-law, a vice president of Windsor. The sale price was $250,000, largely payable to the ex-husband in the form of salary.*fn1 The ex-husband also asserts that the company's profits have steadily declined in recent years.
Further, the ex-husband has tendered a short unsworn*fn2 letter addressed to his counsel from a physician. The physician notes that the ex-husband has hypertension, non insulin-dependent diabetes, and cholesterol problems. The physician recommends that the ex-husband consider early retirement to reduce his stress level. The ex-husband claims that he is in the process of retiring, but does not contend that he has ceased all work.
At the outset of 2006 the ex-husband asked his ex-wife to renegotiate alimony. After she repeatedly refused, the ex-husband filed a motion in the Family Part in March 2006 seeking to terminate the alimony, or, alternatively, to reduce it.
In his certification in support of the motion, the ex-husband contended that his financial circumstances had significantly changed since the time of the February 2000 divorce. Among other things, he asserted that his earned income had dropped to $164,000 in 2004, and had further declined to $123,000 in 2005. He also alleged that Windsor has encountered cash flow difficulties, stemming from increased fuel costs and the loss of furniture delivery business to New York City, and is down to two remaining customers. The ex-husband also asserted that his medical problems have caused him to reduce his work effort. He further indicated that he would turn age sixty-five in July 2007, and that he intended to collect Social Security benefits upon full retirement.
The ex-wife opposed the motion. Her own certification asserted that the ex-husband had exaggerated his financial difficulties. She noted that the ex-husband's 2005 income tax return reflected gross income of $227,292, which she asserts was comparable to the sums he was earning before the divorce. She also questioned the bona fides of the sale price of the exhusband's shares in Windsor to his brother-in-law, and his allegations that the company was in a decline. She alleged that the ex-husband's net worth was still in excess of $1.6 million, and that she remained totally dependent upon him for support. ...