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Derasmo v. Derasmo

April 24, 2008

JOHN DERASMO, PLAINTIFF-APPELLANT,
v.
JEAN DERASMO, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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