Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Derasmo v. Derasmo

April 24, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-885-97.

Per curiam.


Submitted April 14, 2008

Before Judges Graves and Sabatino.

In this post-judgment matrimonial case, John Derasmo ("the ex-husband") appeals the Family Part's order of July 12, 2007, as clarified in an amended order of July 27, 2007. The orders in question denied the ex-husband's motion for relief from his ongoing alimony obligations to his ex-wife, respondent Jean Derasmo ("the ex-wife"). The orders were entered without a plenary hearing.

Because the ex-husband's motion papers raised issues of changed circumstances as to the parties' present incomes and financial positions sufficient to warrant a plenary hearing, we remand the case to the Family Part for such further proceedings.

The parties were married in June 1973 and have two children. They were married for twenty-five years. At the time of their divorce in 1998, both of their children were residing with the ex-wife and were unemancipated. At that time, the ex-husband was making approximately $50,000 per year as a carpenter and the ex-wife was earning approximately $24,000 as a medical receptionist. The parties had no significant assets, other than their marital residence in Iselin with a market value of about $150,000, and about $16,000 in a joint investment account.

With the assistance of their respective counsel, the parties entered into a consensual Judgment of Divorce ("JOD") on September 28, 1998. Pursuant to the JOD, the parties equitably distributed the marital assets. The ex-husband also agreed to pay $400 per month in child support for each of the two children. Of significance to the present appeal, the ex-husband also agreed to pay $115 weekly to the ex-wife in permanent alimony.*fn1

The following year, 1999, the marital home was sold. After the mortgage balance on the marital home was paid off, each party received a net sum of approximately $37,000. The ex-wife invested her funds in a condominium in Parlin, where she lived for several years. Eventually, after the children became emancipated, the ex-wife moved into a house in Toms River that her mother purchased and then deeded to her. The ex-wife now leases the Parlin condominium, and receives rental income that allegedly is slightly less than the mortgage interest and realty taxes on the property.

Meanwhile, the ex-husband remarried. He relocated to South Florida in 1999 to do carpentry work in a construction business that his step-brother owned. Eventually, that business went bankrupt. According to the ex-husband's motion papers, he had difficulty in obtaining other steady employment in Florida at or near the $50,000 income level that he had previously sustained in New Jersey. On the other hand, the ex-husband noted that he can work outdoors in Florida on a year-round basis, and that the cost of living there is cheaper than it is in New Jersey.

According to the ex-husband's initial motion certification, his present wife developed medical problems that caused him to look for full-time work with medical insurance benefits. In April 2004, the ex-husband obtained a full-time maintenance job with Broward County in Florida for an annual gross salary of $31,584. The County position comes with health insurance coverage, as well as a potential pension. As the ex-husband's certification attested, "[t]he job security and benefits available to me with my current job are better for me than the uncertainty of the roofing work which I did for many years." He also noted that he was, at that time, fifty-two years old and "[did] not anticipate receiving anything more than modest increases" in his County salary. According to the ex-husband's CIS dated February 2007, his total monthly expenses, including his alimony obligations, are $5,464.25, or more than twice his net monthly earnings of $1,966.18.

The record further indicates that the ex-wife's annual earnings since the time of the JOD have slightly risen to $33,662 in 2005. According to her CIS dated March 2007, the ex-wife now owns about $40,000 in stocks, plus savings and other non-realty investments totaling another $22,000. Conversely, the ex-husband contends that he does not own any real estate or have any investments. He lives in a financed mobile home with a net equity of about $16,000.

After falling behind slightly in support arrears, the ex-husband filed a motion with the Family Part in May 2007, seeking to terminate his alimony obligation. The motion judge, without a plenary hearing, found that the ex-husband had not adequately shown a change in circumstances under Lepis v. Lepis, 83 N.J. 139 (1980) to obtain relief. The judge determined that the ex-husband had become voluntarily underemployed as a result of his move to Florida. He found no significance in the fact that the ex-wife's living expenses had been abated by her mother's gift of the Toms River house. The judge also perceived no material change arising from the rental income that the ex-wife receives from renting the condominium in Parlin.

In a supplemental letter pursuant to R. 2:5-1(b), the motion judge observed that the ex-husband "will take full advantage of his pension as a deferred benefit; thus, his decrease in income does not constitute a change in circumstances that would warrant the termination or reduction of alimony." The ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.