On appeal from the Superior Court of New Jersey, Family Division, Hudson County, Docket No. FM-09-258-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Lihotz.
Defendant Robert M. Rancich appeals from the June 29, 2006, post-judgment order that, among other matters: 1) denied his motion to terminate, or in the alternative, substantially reduce, his alimony obligation to plaintiff Annette Rancich; and 2) directed that he pay an additional $100 per month towards arrearages. We reverse and remand the matter to the trial court for further proceedings consistent with this opinion.
Plaintiff and defendant were married on May 12, 1979; separated in July 1997; and divorced on March 16, 2000. No children were born of the marriage. The final judgment of divorce incorporated the terms of a Property Settlement Agreement (PSA) dated February 6, 2000.
The PSA provided that defendant would: 1) pay plaintiff $3,010 per month alimony through the Hudson County Probation Department, together with 33% of his gross earned income, in excess of $100,000 per year; 2) maintain three life insurance policies, having an aggregate face value of $150,000, with plaintiff designated as the primary beneficiary on the policies; 3) pay plaintiff's non-covered medical, dental, drug, and other health-related expenses, with the exception of plaintiff's psychological therapy and elective procedures; and 4) pay plaintiff's car insurance, exclusive of any surcharges that may be assessed against plaintiff. Paragraph 3 of the PSA provided that defendant's alimony obligation would terminate upon any of the following events: a) plaintiff's death; b) plaintiff's remarriage; c) defendant's death; or d) agreement between the parties.
Defendant is an information technology computer programmer who specializes in the mainframe legacy systems. Defendant commenced work in 1979 with Pan American Airlines. In 1983 defendant became a contract programmer and was paid a higher hourly wage in exchange for not receiving paid sick days, holidays or vacation time, and was obligated to pay his own medical health insurance premium. In November 1998, defendant's employment agency placed him with the New York Life Insurance Company, where he remained until he was involuntarily terminated in October 2001. For the next ten months, defendant collected unemployment insurance. In August 2002, plaintiff regained employment at New York Life, where he remained employed as a programmer until he was again involuntarily terminated on August 31, 2003. Defendant collected unemployment benefits for the next six months, ending in March 2004, and remained unemployed until June 2006. During defendant's employment, his income varied. Defendant earned $133,122 in 1999; $160,816 in 2000; $142,542 in 2001; $41,246 in 2002; $116,768 in 2003; and $4,820 in 2004. Defendant did not earn any income in 2005.
Notwithstanding defendant's loss of employment, defendant paid plaintiff all alimony due her during the ten months he was unemployed from October 2001 through September 2002. From September 2003 through April 2006, defendant paid plaintiff $75,290, primarily by exhausting his savings and stock brokerage accounts and by borrowing over $20,000 against credit card accounts. Having exhausted his funds and assets, defendant fell into arrears and was arrested in October 2005. While incarcerated, defendant's parents paid the purge amount of $12,500, which was applied toward arrearages and turned over to plaintiff.
In November 2005, defendant moved to terminate or reduce his alimony obligation as well as his obligation to pay plaintiff's uninsured medical expenses and car insurance premiums, asserting a reduction in income. Plaintiff cross-moved, not only seeking to enforce the PSA and to compel payment of arrearages, but also for attorney fees on the cross-motion.
Defendant supported his motion with several certifications, attesting to his employment history, his earnings, the exhaustion of his savings and stock brokerage accounts, his debt, and the amount of alimony paid to plaintiff since August 31, 2003. In addition, plaintiff certified that he had been looking for employment initially as a computer programmer, primarily through job searches via the Internet, a common method for his profession. Defendant estimated that he made inquiries of various employers at a rate of approximately 100 per month, and retained copies of those inquiries for approximately thirty days before discarding them when he had not received a reply. Although he initially sought employment as a computer programmer, defendant also sought minimum wage employment at stores such as Target and Home Depot but was unsuccessful. Believing that defendant had not presented sufficient evidence supporting his efforts to regain employment, as well as proving that the monies withdrawn from his savings account had been paid to plaintiff as alimony, the judge carried the motion until June 26, 2007, providing defendant an opportunity to submit additional documentation in support of his motion. A confirming order was entered on May 4, 2006.*fn1
On the continued return date of June 26, 2006, the judge considered the additional information presented by defendant, including 495 inquiries made by defendant through the Internet of various employers, averaging about 100 per month from January 2006 forward. Defendant also submitted documentation verifying liquidation of his savings account, showing that the money was withdrawn bi-monthly and paid to probation. Defendant's proofs also verified that he had borrowed approximately $23,303 against his credit cards.
On June 29, 2005, the judge rendered an oral decision, denying defendant's motion, determining that defendant had failed to prove a prima facie case of changed circumstances caused by a reduction in his income, and that any reduction in income was temporary and not to be considered in determining defendant's future alimony obligation:
Defendant's claim that his unemployment was involuntary has not been proven. While defendant has submitted what this [c]court might consider a good faith attempt at a search of employment from January of  through May of , through his submission of proof, he sent out 495 e[-]mails, this [c]court has no basis to measure defendant's good faith employment search efforts from September  through January . Despite defendant's ...