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Pechinka v. Pechinka


May 23, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-262-01.

Per curiam.


Submitted May 12, 2008

Before Judges S. L. Reisner and Gilroy.

Plaintiff Robert W. Pechinka appeals from that part of the June 29, 2007 order of the Family Part, which denied his motion to terminate his limited duration alimony obligation of $18,000 per year. We affirm.

Following eighteen years of marriage, the parties were divorced on September 24, 2002, with the Judgment of Divorce incorporating terms of the parties' property settlement agreement (PSA). Under the PSA, plaintiff agreed to pay limited duration alimony for a period of ten years at the rate of $18,000 per year, or $1,500 per month. Plaintiff's alimony obligation was predicated on earning $116,000 per year; and defendant earning $46,000 a year, having recently graduated nursing school. Combining her earnings and alimony, defendant would receive $64,000 per year to maintain a household for herself and one unemancipated child. Lastly, in fulfillment of their obligation under Crews,*fn1 the parties stipulated in the PSA that during the marriage they had "lived a comfortable, though not extravagant, upper[-]middle class lifestyle illustrated by their respected Case Information Statements revealing that the family of four spent approximately $7,000 to $7,500 in an average month on living expenses."

Because plaintiff learned that defendant had earned approximately $90,843 in 2006, plaintiff filed a motion to terminate alimony, retroactive to 2004. On June 29, 2007, Judge Buchsbaum entered an order, supported by written memorandum, denying plaintiff's motion. The written memorandum of decision provided in pertinent part:

N.J.S.A. 2A:34-23[c] states: "An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances."

The statute includes two standards for modification. Although the amount of the award may be modified upon a showing of either a change in circumstances or the nonoccurrence of circumstances that the court found would occur at the time of the award, the length of the term may not be modified "except in unusual circumstances." N.J.S.A. 2A:34-23c. Gordon v. Rozenwald, 380 N.J. Super. 55, 66-67 (App. Div. 2005).

The [c]court does not agree with the plaintiff that a plenary hearing is necessary to determine the issue of the parties' expectations regarding the defendant's income and the marital lifestyle. General contract principles govern interpretation of property settlement agreements. Dworkin v. Dworkin, 217 N.J. Super. 518, 524 (App. Div. 1987). The goal in contract interpretation is to ascertain the probable intent of the parties. Sinopoli v. North River Ins. Co., 244 N.J. Super. 245, 250 (App. Div. 1990) [, certif. denied, 127 N.J. 325 (1991)]. The court should inspect all language within the four corners of the contract and consider the surrounding circumstances and conduct of the parties when ascertaining the probable intent of the parties. Regan v. Regan, 246 N.J. Super. 473, 478 (Ch. Div. 1990). In this case, there is no ambiguity in the parties' agreement. There is no indication whatsoever that the payment of alimony would terminate as soon as the defendant was capable of earning sufficient income to maintain the marital lifestyle. In fact, the Final Judgment of Divorce is completely silent as to any qualifications regarding the termination of alimony. Therefore, the [c]court cannot determine that there was any intent on part of the parties to incorporate any such conditions into the agreement. There is also no language in the Final Judgment of Divorce, as the plaintiff maintains, that the defendant acknowledged that she would be able to maintain the marital lifestyle with an income of $64,000. Thus, the [c]court cannot and will not read such an acknowledgement into the agreement.

Nor are there unusual circumstances. The defendant argues that $64,000 of gross income results in approximately $4,000 of net income per month. Even the plaintiff acknowledges that when the joint marital lifestyle is $7,000 to $7,500 per month, it is difficult to ascertain Schedule A and B expenses for a two-person household in contrast to a four-person household. The [c]court finds that the same is true even for Schedule C expenses, as it cannot generally be said that two persons will incur one half of the Schedule C expenses that four people would incur. There is simply no such relation. Therefore, assuming the marital lifestyle was $7,250 (between $7,000 and $7,500), there is simply no easy way to determine how much of that money should be allocated to the defendant's current household. Housing costs will not simply be one-half of what they were and the same is true of many other costs. The [defendant] specifically states that she would be unable to maintain the marital lifestyle with $4,000 net per month. Income of $108,000 gross per year, i.e. $90,000 of income and $18,000 of alimony payments, results in approximately $73,000 net income per year, or approximately $6,100 per month of net income. The parties' marital lifestyle was, of course, also based on net income, not gross income, as it represents actual expenses paid by the parties every month. Considering how difficult it is to determine how a joint marital lifestyle for four persons would translate into the same standard of living for two persons, the [c]court finds that the $6,100 of net income is not such a large increase from $4,000 per month, especially considering that the Final Judgment of Divorce was entered in September 2002 and living expenses in the past five years have increased, as to constitute "unusual circumstances" which would permit the [c]court to terminate the plaintiff's alimony obligation. As Justice O'Hern said, "a deal is a deal." Conlon v. Conlon, 335 N.J. Super. 638 (2000), [(]citing Konzelman v. Konzelman, 158 N.J. 185, 206 (1999) (O'Hern, J., and Stein, J., dissenting)[)].

On appeal, plaintiff argues: "The $18,000 in limited duration alimony awarded to defendant is subject to modification upon a change in either party's financial circumstances. The trial judge erred by not affording the plaintiff a plenary hearing as to this issue." We disagree.

"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). It is against these standards that we review the decision below.

We have considered plaintiff's arguments in light of the record and applicable law. We are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Buchsbaum in his cogent memorandum of decision of June 29, 2007. R. 2:11-3(e)(1)(A).


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