On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-55-03-Z.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges Sabatino and Alvarez.
Plaintiff, Francis J. Quigley, appeals from an order of the Family Part which denied his post-judgment motion to terminate his permanent alimony obligations following voluntary retirement at age fifty-nine and-a-half. We affirm.
The parties had been married for thirty-two years when they divorced on April 15, 2003. The decree incorporated their property settlement agreement (PSA), entered into on the same date. The PSA required plaintiff to pay defendant, Trudy D. Quigley, $300 weekly in alimony until her remarriage or the death of either party. Additionally, the PSA called for payment to defendant of thirty percent of plaintiff's pension benefits and thirty percent of his survivor annuity. The reduction from the fifty percent to which defendant would be otherwise entitled was attributable to offsets for equity in the marital home defendant retained, and the value of defendant's own pension. Defendant makes a monthly payment towards plaintiff's survivor annuity, thirty percent of the cost, in order to maintain her entitlement to survivor benefits.
Plaintiff contends, as he did before the motion judge, that because of his retirement he is unable to continue to make alimony payments at the prior level, and that if required to do so, defendant would enjoy substantially greater income. This, he asserts, is a change of circumstances pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), which allegedly warrants at least downward modification, if not outright elimination, of alimony payments, after a plenary hearing.
Defendant's reasons for his retirement are: that he is the oldest person in his office, that during the marriage the parties anticipated he would retire at fifty-nine and a-half because by then he would have worked for thirty-seven years, and that he suffers from hypertension, hyperlipidemia and work-related stress. He asserts that because he drinks, smokes and does not exercise it will be difficult for him to be able to continue working.
When the parties divorced, plaintiff was earning $81,853 at the Social Security Administration and defendant, a schoolteacher, was earning $42,000. She is the same age as plaintiff and contracted polio as a child, a condition from which it is anticipated she will continue to suffer intermittent health problems. Defendant cannot collect full benefits from her pension plan until she is sixty-six.
Plaintiff's gross monthly retirement benefit is $5265, from which thirty percent, or $1317.30, is paid to defendant as her equitable distribution share of his pension. From that gross sum she pays $153 back for her thirty percent share of the cost of plaintiff's survivor's annuity. This means plaintiff's share of the monthly gross retirement benefit is $3947.70.
As the motion judge found, Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div. 1993), is the controlling case. "[I]n certain circumstances, good faith retirement at age sixty-five may constitute changed circumstances for purposes of modification of alimony and . . . a hearing should be held to determine whether a reduction in alimony is called for." Id. at 581. A variety of enumerated factors "should be considered" in determining whether the changed circumstances warrant a reduction in alimony. Ibid. As the opinion specifically states, however, one who retires voluntarily may not be automatically entitled to a reduction in alimony, even at sixty-five. Id. at 582.
As the motion judge opined, the alimony payments are necessary to enable defendant to maintain the marital standard of living. Crews v. Crews, 164 N.J. 11, 35 (2000). Defendant's share, however, of plaintiff's retirement benefits were already agreed to by way of equitable distribution in the PSA. To compel defendant to lose the alimony benefit negotiated a scant few years ago and depend solely on her equitable distribution share of plaintiff's retirement income would inflict an unfairness upon her without justification, other than defendant's understandable desire to retire early.
Plaintiff's decision to retire was not founded upon cognizable factors that require further review. Being the oldest person in an office where employees are expected to retire early, and not enjoying great health, do not establish changed circumstances pursuant to Lepis, supra, 83 N.J. 149-53. Plaintiff's retirement was a foreseeable eventuality which he failed to address in his negotiations attendant to the divorce. Defendant should not suffer for that omission. The motion court aptly quoted language from Deegan v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992), which states:
[a]ny party is free to retire, take a vow of poverty, write poetry or hawk roses in an airport, if he or she sees fit. The only limitation is discontinuance of the financial aid the former spouse requires. The reason for this is that the duty of self-fulfillment must give way to the pre-existing ...