On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-15163-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Skillman and LeWinn.
Defendant appeals from an order of the Family Part denying his application to terminate or modify his alimony obligation. Following a two-day plenary hearing, the trial judge rendered a decision, memorialized in an order of March 22, 2006, denying defendant's application in its entirety. By order of June 6, 2006, the court awarded plaintiff $9,873.50 in counsel fees. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I: THE ORDERS APPEALED FROM ARE NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE AND REPRESENTS [SIC] A SHARP DEPARTURE FROM REASONABLENESS
POINT II: THE COURT'S USE OF IMPUTED INCOME THEORY IS INAPPROPRIATE IN THIS CASE
POINT III: THE COURT'S AWARD OF COUNSEL FEES TO PLAINTIFF WAS AN ABUSE OF DISCRETION
Upon thorough review of the record, we conclude the trial judge's decision must be reversed and the matter remanded to the Family Part for further proceedings.
The following factual background is pertinent to our decision.
The parties were married in 1975 and had three children, all of whom are now emancipated. Following a four-day trial, the judge issued a lengthy decision and, on December 10, 1996, entered a final judgment of divorce; on June 13, 1997, the judge entered an amended supplemental dual final judgment of divorce, supported by a supplemental decision. In determining alimony, the judge found that defendant, a cardiothoracic surgeon, had average gross annual income of $315,000. The judge imputed $45,000 gross annual income to plaintiff, a registered nurse, whom he deemed to be underemployed. Based upon those incomes, plaintiff was awarded permanent alimony of $5,833 per month ($70,000 per year).
On December 6, 2003, defendant filed a motion to terminate or modify his alimony obligation. He claimed that changes in his employment situation, as well as certain medical ailments, left him unable to meet his alimony obligation to plaintiff and to support his new wife and the three children of his re-marriage. Defendant also sought to increase the amount of income imputed to plaintiff.
On January 23, 2004, the trial court entered an order finding defendant had made "a prima facie showing of changed circumstances to warrant discovery on his ability to pay spousal support[.]" The judge also ordered a plenary hearing that was subsequently held on October 24 and December 1, 2005.
Defendant testified that his downturn in employment was triggered in 2003 by the termination of his service as Medical Director of Trinity Medical Center (Trinity), in Illinois (where he then resided). This termination was initially rendered effective September 30, 2003; however, defendant stated that he remained employed until January 21, 2004, when Trinity signed a contract with a new surgery service. Defendant presented evidence of the termination agreement and the release he negotiated with Trinity, under which he was prohibited from performing cardiothoracic surgery within a twenty-mile radius of the county in which Trinity is located for a period of one-anda-half years.
Defendant testified, with supporting documentation, about his efforts to secure a new position in his field of cardiothoracic surgery following his termination from Trinity. He stated that he began searching for new employment in September 2003 because he was aware of his impending termination.
Starting in 2003, defendant testified, a technological advancement in the form of a medical device known as a "stent" was gaining increasing use among cardiologists to open blocked arteries, thereby reducing the need for cardiothoracic surgery to address that problem. As a result, according to defendant, both the number of positions in the field of cardiothoracic surgery and the revenues generated by those surgeons were significantly reduced.
On January 30, 2004, defendant accepted what he considered an "interim position" as a medical director in the Illinois Department of Corrections (the Department). His salary in that position was $165,000 annually. However, he stated that he continued to look for another position during this employment, and that he searched more than one hundred "options."
Defendant also raised his physical health as a "changed circumstance" warranting relief. In June 2004, defendant underwent shoulder surgery to repair a torn rotator cuff. He testified that, shortly after the operation, the surgical site became infected and he was hampered in his ability to perform his job with the Department, resulting in reduction of his work schedule to part-time in August 2004. The shoulder injury fully healed by December 2004, but at that time defendant began suffering from a bleeding ulcer which required hospitalization.
In August 2004, defendant contracted to open a franchise of a company called Vein Centers for Excellence (VCE), in New Jersey. He decided to move from Illinois to New Jersey because of his current wife's family connections here. He opened his office in November 2004, and was engaged in this business at the time of the plenary hearing. Defendant described the business as a "procedure-based office practice for the treatment of ...