December 6, 2007
THOMAS J. KAPPELER, PLAINTIFF-APPELLANT,
LOIS KAPPELER, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-826-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Winkelstein and Yannotti.
Plaintiff Thomas Kappeler appeals from that portion of the Family Part's August 11, 2006 order denying his application to reduce or terminate his alimony obligation, and from a September 29, 2006 order denying his motion for reconsideration. On appeal, he claims the trial judge erred in assuming his annual income was $117,000; erred in her interpretation of the parties' property settlement agreement (PSA); and ultimately erred by denying his motion for a decrease in alimony. We affirm.
Following nineteen years of marriage, the parties were divorced by final judgment (FJD) on September 26, 2001. The FJD incorporated the PSA, which called for plaintiff to pay $187 per week in child support for the parties' two children: Kyle, born September 16, 1986, and Jennifer, born December 3, 1991. The PSA also called for plaintiff to pay $250 per week in permanent alimony. Specifically, it says:
[Plaintiff] agrees to pay [defendant] the sum of $250.00 per week permanent alimony.
This agreement is based upon [plaintiff] earning approximately $103,000.00 per year and [defendant] earning $30,000.00 per year.
Parties agree that their [case information statement] from February 2001 will control any reconsiderations. The parties recognize that there is an outstanding order of the Burlington County Superior Court dated April 11, 2001 that sets spousal support at $250.00 per week effective February 14, 2001.
The April 11, 2001 order to which the PSA refers established spousal support at $250 per week and child support at $184 per week, based on plaintiff's gross income of approximately $103,000 and defendant's gross income of approximately $30,400.*fn1 That order also indicated that defendant had "a deficiency of $433.00 per week after subtracting her monthly expenses of $3,869.00 per month from her net monthly income of $2008.00."
In support of his motion, plaintiff submitted a case information statement (CIS) showing his 2005 income to have been $92,985, or $1788 per week. Subsequent to the trial court's decision, plaintiff received his 2006 W-2 from his employer, which shows a gross income for 2006 of $102,212. The trial judge, without the benefit of the 2006 W-2, concluded that plaintiff earned $2255 per week in 2006. The court made this finding based on plaintiff's then most-recent pay statement, dated May 26, 2006, showing year-to-date earnings of $45,115. The court appears to have calculated the weekly $2255 figure by dividing $45,115 by twenty, as there were twenty weeks between January 1, 2006 and May 20, 2006, the end date of the pay period reflected by the May 26, 2006 pay statement. Projected over a fifty-two-week year, this calculates to an annual income of $117,260.
Plaintiff claims that the court miscalculated his 2006 income, in that the pay period ending May 20, 2006, represented his eleventh paycheck for the 2006 calendar year. His first paycheck of the year, dated January 6, 2006, was for the two-week pay period ending December 30, 2005. Therefore, plaintiff asserts that the $45,115 figure represents his pay for twenty-two weeks of work, including the final two weeks of 2005. He thus argues that this $45,115 figure should have been divided by twenty-two to calculate his weekly income, which would have been approximately $2050. Projected over fifty-two weeks, this computes to an annual income of approximately $106,635.
Plaintiff also challenges other calculations made by the court, and asserts that his 2006 income should have been estimated at $102,414. That figure is substantially confirmed by plaintiff's 2006 W-2, showing, as we indicated, his gross income for 2006 to be $102,212.
In her certification in opposition to plaintiff's motion to modify alimony, defendant asserted that she was earning a base annual salary of $51,000 in 2006. She filed a supplemental certification indicating that her employer informed her on Friday, July 14, 2006, that her job was being eliminated; her employer gave her a choice between receiving severance and retaining her former position at a lower pay rate. Defendant certified that she chose to remain with her employer at the lower pay rate because it was less risky than searching for employment with a new company. She certified that beginning July 17, 2006, her new annual salary would be $45,500.
Plaintiff certified that defendant presently has two cars, a travel trailer, and an annual lease space for the trailer in Cape May County. He claimed that she had been taking Jennifer to "have her nails done" every two weeks since she reached the age of thirteen.
Defendant certified that during the marriage, she and plaintiff were "living well." She alleged that they had built a single family home with a pool, had two cars, went on vacations, and went out to dinner weekly. She asserted that she had worked part-time during the marriage, allowing her more time to spend raising their children, and that the parties were better able to afford Jennifer's "significant" medical expenses during the marriage.*fn2
Plaintiff is remarried, and his new wife has a full-time job; he and his new wife live in a single family home. Defendant certified that she moved to a small townhouse after the divorce, and that at the time of the divorce, she was unable to maintain a standard of living comparable to that which she enjoyed during the marriage.
The trial court denied plaintiff's application to reduce or terminate alimony, finding that plaintiff failed to make a prima facie showing of changed circumstances warranting modification of the PSA as it pertained to alimony.
New Jersey law recognizes the courts' equitable power to modify alimony orders at any time. N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 145 (1980). Alimony orders, therefore, only represent the then-present obligations of former spouses, and are "always subject to review and modification on a showing of 'changed circumstances.'" Lepis, supra, 83 N.J. at 146 (citations omitted). Courts have the equitable power to modify support obligations whether made by consent or judicial decree. Id. at 148-49.
Nonetheless, a supporting spouse has a "continuing obligation to contribute to the maintenance of the dependent spouse at the standard of living formerly shared." Id. at 152. To determine whether the former marital standard of living is being maintained, a court should examine "'the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard.'" Crews v. Crews, 164 N.J. 11, 24 (2000) (quoting Lepis, supra, 83 N.J. at 152).
The Supreme Court has articulated a two-step procedure for evaluating the need for modification of alimony: first, "'[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status;'" second, only after this prima facie showing is made by the moving party, "'the respondent's ability to pay become[s] a factor for the court to consider.'" Id. at 28 (quoting Lepis, supra, 83 N.J. at 157). A party seeking modification of alimony must "demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157.
Modifications of support agreements based on changed circumstances also apply to "'a significant change for the better in the circumstances of the dependent spouse' that may obviate the need for continued support." Glass v. Glass, 366 N.J. Super. 357, 371 (App. Div.) (quoting Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997)), certif. denied, 180 N.J. 354 (2004). We have found:
[A] payor spouse is as much entitled to a reconsideration of alimony where there has been a significant change for the better in the circumstances of a dependent spouse as where there has been a significant change for the worse in the payor's own circumstances. Likewise, a movant may make a prima facie showing of changed circumstances under Lepis by citing a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review. [Stamberg, supra, 302 N.J. Super. at 42 (citation omitted).]
Yet, because modification is the exception, not the rule, more than a modest increase in the supported spouse's income is required before "the equitable remedy of modification of an extant agreement would be invoked." Glass, supra, 366 N.J. Super. at 379.
Against this factual and legal background, we conclude that though plaintiff is correct that the trial court made errors in calculating his 2006 income, we agree with the trial judge's ultimate conclusion that plaintiff is not entitled to a modification of his alimony obligation. See Do-Wop Corp., T/A Razzle Dazzle Fantasy Runway v. City of Rahway, 168 N.J. 191, 199 (2001) (appeals are from judgments, not opinions or reasons for court's conclusions).
Judicial findings of fact in non-jury trials "should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, giving deference to the Family Part's expertise, we do not find that the trial court's conclusions resulted in a denial of justice.
Plaintiff's 2006 income of $102,212 is substantially the same as the approximately $103,000 per year that was used to calculate his alimony obligation at the time of the FJD. Though his wife's earnings have increased from $30,000 per year to approximately $46,000, that alone is insufficient to demonstrate a prima facie case of changed circumstances warranting modification of plaintiff's alimony obligation. As the trial judge acknowledged, defendant had a budget shortfall at the time of her divorce. Since then, her expenses have increased, and she has been required to refinance her home; in other words, she continues to have a budget shortfall. Though her son Kyle has since been emancipated, and plaintiff no longer pays child support on his behalf, Kyle continues to live at home with defendant while he attends community college. That alone increases defendant's expenses and affects her standard of living.
As we have indicated, not every increase in the supported spouse's finances entitles a supporting spouse to a modification of an alimony obligation; the increase in the supported spouse's finances must constitute a "significant change for the better in the circumstances of the dependent spouse." Stamberg, supra, 302 N.J. Super. at 42. Here, plaintiff has not demonstrated that defendant's financial situation has significantly changed for the better since the divorce. To be entitled to a modification of his alimony obligation, plaintiff must show more than simply an increase in defendant's income. He has not done so. He has not demonstrated that defendant's present circumstances "render all or a portion of support received unnecessary for maintaining" the same standard of living that she maintained at the time the spousal support order was entered. Lepis, supra, 83 N.J. at 153.