On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-982-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and C.L. Miniman.
Plaintiff Paul Smoley, former husband of defendant Frances Smoley, appeals from the May 29, 2007 order denying his motion to reduce or terminate alimony. We reverse and remand for a plenary hearing on financial issues relevant to Paul's application pursuant to Lepis v. Lepis, 83 N.J. 139 (1980).
The parties were married on July 4, 1968 and divorced by a judgment entered on May 6, 2004, which incorporated a support and property settlement agreement, requiring Paul to pay $6,583.35 per month as alimony, the amount based on his earnings of $300,000 per year and imputed earnings to Frances of $30,000. Paul also paid the lump sum of $450,000 to Frances as equitable distribution of the value of Absolute Protective Systems (APS), a subchapter S corporation owned by Paul. The agreement contemplated Paul's retirement providing that a sale of APS after he reached the age of sixty-two would constitute a prima facie case of changed circumstances for modification of alimony. Paul was sixty-years old when he made this post-judgment motion.
Paul contends that alimony should be terminated based upon the changed circumstances of both parties. His certification and tax information reflect a reduction in his earnings from $300,000 at the time of divorce to $130,000, which he attributes to a decline in APS's earnings and his deteriorating health. He also asserts that Frances received a substantial inheritance from her mother so that her financial condition has improved while his has deteriorated.
Frances' certification contends crucial factual assertions made by Paul. She argues his claim of a reduction of income is manufactured and that the reported business losses are specious or exaggerated. She underscores that APS is Paul's wholly owned corporation, which enables him to manipulate officer income. She also states that despite Paul's claim of financial hardship, he still maintains a high lifestyle. She also disputes Paul's assertion that his deteriorating health rendered him unable to oversee and run APS.
The motion judge held that Paul had not presented a prima facie case of changed circumstances under Lepis and that a plenary hearing was not warranted. We disagree. Paul has demonstrated a substantial decrease in income from the time of the property settlement agreement as well as letters from physicians, albeit uncertified, which indicate Paul should reduce his work hours in APS. On the other hand, Frances disputes all of these factual assertions. Moreover, we are unable to ascertain whether Frances' financial condition has changed since she did not supply a case information statement.
Disputed issues of material fact cannot be resolved on certifications but require an evidentiary hearing. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006); Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Shaw v. Shaw, 138 N.J. Super. 436 (App. Div. 1976). In this instance, a plenary hearing is warranted. The Family Part judge is to schedule the hearing after a reasonable discovery period and the submission of updated case information statements.
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