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Kinney v. Kinney

June 19, 2008

RANDI G. KINNEY, PLAINTIFF-APPELLANT,
v.
FRANCIS K. KINNEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0310-03C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2008

Before Judges C.S. Fisher and C.L. Miniman.

In this appeal, we review a determination, rendered at the conclusion of a plenary hearing, that the retirement of defendant Francis K. Kinney from his position as police chief in Highland Park was involuntary and was a changed circumstance that permitted a reduction in the child support and alimony obligations established in a judgment of divorce that was entered less than three months prior to his motion for a reduction. Because we conclude that the judge failed to thoroughly consider the standards set forth in Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992), we reverse and remand for additional proceedings.

The parties' 1981 marriage, which produced two children, was dissolved by way of a judgment entered on September 28, 2006. The preamble of the divorce judgment indicates that its terms were based on the parties' "partial settlement" of February 23, 2004. The judgment also indicates that the partial settlement was "confirmed" by the court on October 25, 2004. Neither the judgment nor the record on appeal, however, delineates the terms that were agreed upon in 2004 as opposed to those that remained unresolved but ultimately included in the judgment entered two years later.

The judgment directs defendant to pay his former wife, plaintiff Randi Goldberg, $275 per week in permanent alimony and $324 per week in child support. The judgment expressly indicates that the amount of these obligations was based upon defendant's income of $2,200 per week as Chief of Police of Highland Park and plaintiff's income of $873 per week as an office worker with Plastic Surgery Arts.

On December 15, 2006 -- less than three months after entry of the judgment of divorce -- defendant moved for a downward modification, citing as a changed circumstance a reduction of his income to the gross annual amount of $80,510, which consists of pension payments to which he was entitled based upon his retirement a few months earlier. Defendant asserted in his sworn statement that his income was, as a result of his retirement, "a full one third less [than] my prior income."

Plaintiff opposed the motion. Although defendant's moving papers made no mention of where he was then employed, plaintiff argued that she understood defendant was working as a real estate broker on Long Beach Island and objected to the fact that he failed to attach any pay stubs or other indicia of his income through this other employment. Plaintiff also asserted that she believed defendant "planned all along to retire, and negotiated in bad faith during the divorce proceedings."

In reply, defendant asserted that he had "received no pay at [his] current employment" and, thus, had no pay stubs to provide. He also denied that his retirement was voluntary or precipitous, claiming:

My department and the Middlesex County Prosecutor[']s Office were conducting a criminal investigation [regarding certain Highland Park officials, including defendant's] direct supervisor. This is a confidential criminal matter that is still open and I am not at liberty to elaborate in this writing. Suffice it to say that I was subject to harassment and interference directly from my supervisor and that when I attempted to remedy the situation the elected body chose to support [my direct supervisor]. I was subject to undue political backlash, and personally harassed by my immediate supervisor, who was directly interfering with the criminal investigation.

The motion judge entered an order on February 2, 2007, which directed the completion of discovery within sixty days and indicated the need for a plenary hearing to resolve the parties' factual disputes.

The plenary hearing occurred on October 9, 2007, before a different judge. Only the parties testified. At its conclusion, the judge rendered an oral ...


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