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Abbate v. Abbate

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 8, 2008

GRACE L. ABBATE, PLAINTIFF-APPELLANT,
v.
ROSARIO S. ABBATE, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1226-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 14, 2008

Before Judges Parrillo and Gilroy.

Plaintiff Grace L. Abbate appeals from the May 24, 2007 order of the Family Part, which reduced defendant Rosario S. Abbate's alimony obligation from $650 per week to $350 per week. We affirm.

On May 3, 2006, the parties were divorced by a dual judgment of limited divorce (JOD), which memorialized the parties' settlement of certain marital issues, including defendant's alimony obligation. Pursuant to the JOD, defendant was obligated to pay plaintiff $650 per week alimony, commencing May 1, 2006. Alimony was based on defendant earning $120,000 per year in salary, commissions, bonuses and profit sharing; and by imputing to plaintiff an annual income of $25,000.

On October 26, 2006, defendant filed a motion seeking a reduction of his alimony obligation based on a change of circumstances, asserting that post-divorce he was involuntarily terminated from employment. On December 1, 2006, the trial court entered an order, which among other matters, "scheduled a plenary hearing on the narrow issue of defendant's voluntary or involuntary termination from his employment." On March 26, 2007, the plenary hearing was conducted with only defendant and David Theodore Bow, the Vice President of Sales and Service for North America at Dionex Corporation, defendant's former employer, testifying.

The following uncontested facts are adduced from the certifications filed by the parties, and from the testimony presented at the plenary hearing.

At time of the divorce, defendant was employed by Dionex, a California-based company that develops, manufactures, sells, and services chromatography and extraction systems used to separate, isolate, and identify the components of chemical mixtures. In 1974, defendant began working for Dionex at its regional office in Marlton, New Jersey, as a sales representative, and rose to the position of Area Service Manager of the Marlton Office after thirty-two years of employment. In 2005, defendant's annual income included a base salary of $86,769.79 and bonuses, commissions, and profit sharing of $32,264.99 for an annual income of $119,034.78. This figure was rounded to $120,000 for the purpose of determining defendant's alimony obligation.

In November 2005, prior to the parties reaching a property settlement agreement, Bow advised defendant that Dionex was in the process of restructuring its corporate organization, which would include the closing of its Marlton Regional Office and the elimination of defendant's position. Bow also informed defendant that Dionex was interested in maintaining its long-term employees and that the company was considering creating a new strategic Account Manager position in Chicago, Illinois, and that defendant would be considered for that position. Bow believed defendant was a "good fit" for the new position.

On January 19, 2006, Dionex issued an official announcement to its employees, advising that it would be opening a North American headquarters in Chicago, and closing its regional offices over the next six to twelve months. However, an exact closing date of the Marlton office was not provided, nor was any information contained in the announcement concerning the company's retention of the employees at its regional offices, including defendant.

On the following day, January 20, 2006, defendant's attorney forwarded a letter to plaintiff's attorney to keep plaintiff apprised concerning defendant's employment: "Mr. Abbate has informed me that all regional facilities for his company are being closed, and as a result, Mr. Abbate's future with the company is now influx, but soon to be resolved. I will keep you advised." At the time of Dionex's reorganization announcement, defendant, based on his previous discussions with Bow, believed that he would be offered a new position with the company in Chicago.

On March 8, 2006, defendant received a letter from Bow advising that his position at Dionex would be terminated on or before July 1, 2006, and that although he was "being considered for other positions within the company," "there are currently no definite decisions regarding his future employment opportunities and there are no positions available for Mr. Abbate that would not require him to relocate." Notwithstanding the letter's content, defendant believed that Dionex was proceeding with creating a new position for him in Chicago, and he began making arrangements to travel to Chicago to look for a new home.

On March 21, 2006, the parties appeared in court and placed the terms of their settlement, including defendant's agreement to pay plaintiff $650 alimony per week. Although defendant was aware that his position at the Marlton office was going to be terminated on or before July 1, 2006, he neither informed the trial court nor plaintiff's counsel of that fact because no one had questioned him concerning the termination of his employment at the Marlton Office, and at that time he believed that he was going to continue his employment with Dionex, albeit in a different position in Chicago.

On May 3, 2006, the trial court entered the JOD, incorporating the terms of the settlement agreement reached between the parties. On the following day, defendant forwarded an e-mail to Bow advising that he was going to Chicago on May 25, 2006, to find a new home in order to relocate to Chicago by August 1, 2006. To defendant's surprise, Bow replied immediately upon receipt of the e-mail that "[w]hile it's true that you and I had discussed your possible interests in the position in Chicago, no job has ever been offered to you." Bow further stated, "[t]he Key Account Manager job doesn't even have a signed REQ yet, and I'm still deciding if I want to open it or hold on for a year before even starting a search." This was defendant's first realization that he was not going to be offered the Key Account Manager position at the Chicago headquarters. Although defendant received formal notice of termination of employment in mid-June, effective July 5, 2006, defendant worked through that date, and never voluntarily resigned his position.

On termination, defendant received the company's standard severance package of a lump sum payout of sixteen weeks salary. Commencing in June and continuing through August 2006, defendant sought other employment in his field of endeavor, using on-line employment services, such as Career Builder and Monster, various headhunting services, as well as his own industry contacts. However, because of his limited formal education, defendant's job search proved unsuccessful. Defendant commenced collecting unemployment benefits and learned of the State of New Jersey's Self-Employment Assistance and Entrepreneurial Training Program, which aided individuals in becoming self-employed.

After researching the issue and completing the State training program, defendant founded KARD SOLUTIONS, INC., using his 401(k) retirement funds as startup monies for the business. Defendant purchased a Batteries Plus franchise, a national retail chain that sells various types of batteries. At the time of the hearing, defendant was in the process of remodeling a store with the intent of commencing business operations in May 2007. Defendant fixed his salary at $54,000 annually, to be funded from the monies borrowed from his 401(k) plan.

On April 5, 2007, the trial judge rendered an oral decision determining that defendant's involuntary loss of employment constituted a change of circumstances. As to defendant acting in good faith at the time the parties negotiated their property settlement agreement, the judge found:

The issue before the Court is whether the notification to defendant of the elimination of his position prior to the final judgment of divorce while he was still employed and his continuing belief that he would remain employed with Dionex constitutes a change of circumstances justifying consideration of the modification of his support obligation.

The Court finds based upon . . . the evidence and testimony that in January of 2006, after being advised of the closing of the regional offices of Dionex[,] [defendant] continued to believe that he would have a position with Dionex. This is confirmed by his attorney's letter of January 20th, 2006 to opposing counsel. The Court also find[s] that even after receiving the letter of March 8th, 2006 which confirmed the elimination of his position, defendant continued to believe that a position would be available in Dionex as confirmed by his e-mail dated May 4th, 2006 to Bow in which he references a house-hunting trip to Chicago.

The Court finds that that belief was reasonably based upon defendant's longevity with Dionex and the discussions with management. That that position was not going to materialize was confirmed by Mr. Bow's e-mail of May 4th, 2006 after the final judgment of divorce and property settlement agreement.

The Court finds that the plaintiff was employed at the time for the property settlement agreement, that despite being advised of the elimination of a position at Dionex prior to the final judgment of divorce, he anticipated continued employment in some form with Dionex, that a position did not materialize which was confirmed after the final judgment of divorce.

Accordingly, based on her findings that defendant's loss of employment was involuntary and that he had reasonably believed that he was going to obtain a new position which later failed to materialize, the trial judge concluded that defendant's loss of employment constituted changed circumstances pursuant to Lepis v. Lepis, 83 N.J. 139, 146 (1980), warranting consideration of a modification to defendant's support obligation.

Following the court's decision of April 5, 2007, the parties filed and exchanged copies of their tax returns, and other income and expense information, requesting the court to determine the amount of modification warranted in defendant's alimony obligation. On May 24, 2007, the court reduced the alimony payment from $650 to $350 per week, retroactive to January 1, 2007, to be reviewed on an annual basis to account for any increase in income. The ruling was based on defendant's gross annual income of $54,000 and plaintiff's imputed income of $25,000.

On appeal, plaintiff argues:

POINT I.

THE TRIAL COURT'S DECISION IN GRANTING RESPONDENT'S REQUEST FOR MODIFICATION OF SPOUSAL SUPPORT WAS NOT FAIR OR EQUITABLE BASED UPON THE FACTS, CASE LAW AND PUBLIC POLICY.

A. THE TRIAL COURT ERRED IN GRANTING A REDUCTION IN SPOUSAL SUPPORT AS RESPONDENT FAILED TO SHOW CHANGED CIRCUMSTANCE SINCE HE WAS AWARE OF THE LOS[S] OF EMPLOYMENT PRIOR TO THE FINALIZATION OF THE AGREEMENT.

B. THE TRIAL COURT ERRED IN DETERMINING A CHANGE IN CIRCUMSTANCE EXISTED AS RESPONDENT EXPERIENCED NO FINANCIAL CHANGE AT THE TIME OF THE REQUEST FOR MODIFICATION OF SPOUSAL SUPPORT.

C. THE TRIAL COURT ERRED IN NOT DETERMINING THAT RESPONDENT ACTED IN BAD FAITH AT THE TIME OF THE ENTRY OF THE JUDGMENT BASED ON HIS KNOWLEDGE THAT HE WOULD BE LOSING HIS JOB.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The use of negotiated agreements to resolve marital controversies is favored by the courts, "and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Consensual marital agreements "'should not be unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). When there is "'no showing of unfairness, the trial court should not supply terms which the parties obviously considered and yet did not adopt.'" Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)).

Nevertheless, consensual "divorce agreements are necessarily infused with equitable considerations and are construed in light of salient legal and policy concerns." Konzelman, supra, 158 N.J. at 194. Such agreements "are not governed solely by contract law." Ibid. A marital settlement agreement will be enforced if found "fair and just." Ibid. Accordingly, "[c]courts have continuing power to oversee divorce agreements, [and] . . . to modify them on a showing of 'changed circumstances,' . . . that render their continued enforcement unfair, unjust, and inequitable." Ibid. (citation omitted).

"[O]rders pertaining to alimony or other support 'may be revised and altered by the court from time to time as circumstances may require . . . .'" Gibbons v. Gibbons, 86 N.J. 515, 525 (1981) (quoting N.J.S.A. 2A:34-23). Applications for modification of an established alimony obligation are informed in part by the payors "'ability to pay' the amount set, or agreed to." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). Alimony obligations are subject to review and modifications based upon a showing of changed circumstances. Lepis, supra, 83 N.J. at 146. "The party moving for modification 'bears the burden of making a prima facie showing of changed circumstances.'" Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (quoting Miller v. Miller, 160 N.J. 408, 420 (1999)), certif. denied, 180 N.J. 354 (2004). It is against these principles that we consider plaintiff's arguments. We have carefully considered plaintiff's arguments in light of the record and applicable law. We conclude that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We affirm substantially for the reasons expressed by motion Judge Fox in her oral decision of April 5, 2007. R. 2:11-3(e)(1)(A). The judge's findings are well supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nevertheless, we add the following comments.

Plaintiff argues that defendant failed to prove a change of circumstances other than that which was "self-induced," citing Dilger v. Dilger, 242 N.J. Super. 380, 391 (Ch. Div. 1990). Plaintiff contends that defendant "was aware both on March 21, 2006, when the agreement was negotiated, and on May 3, 2006, when the Judgment was finalized, that he would not be employed by Dionex after July 1, 2006," and failed to advise plaintiff of his pending termination of employment. We disagree.

Dilger is distinguishable from the matter at hand. In Dilger, the parties incorporated a property settlement agreement into a JOD, the terms of which obligated the husband to pay alimony of $1,000 per month. Approximately six years post-divorce, the husband elected to take an early retirement. Id. at 382. The former wife filed a motion to enforce litigant's rights, and the husband filed a cross-motion to terminate his alimony obligation. The trial court denied the husband's motion, determining that his voluntary retirement "was neither in good faith nor, under the circumstances, otherwise reasonable." Id. at 388. Here, to the contrary, defendant's termination of employment was not voluntary. Moreover, the trial judge, after having the opportunity to assess defendant's credibility, determined that defendant reasonably believed that he was going to retain employment with Dionex in a new position in Chicago at the time the parties negotiated their property settlement agreement and when the judgment was entered on May 3, 2006. Those findings, based on credible evidence in the record, support the trial judge's conclusion that defendant's termination of employment from Dionex constituted a change of circumstances, warranting modification of his alimony obligation.

Affirmed.

20080508

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