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Wolkoff v. Wolkoff

August 15, 2008

EUGENE HARVEY WOLKOFF, PLAINTIFF-RESPONDENT,
v.
ARLETTE SARFATI WOLKOFF, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-0010-85.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 28, 2008

Before Judges Winkelstein and LeWinn.

Defendant Arlette Wolkoff appeals from the Family Part's January 29, 2007 order denying her request to increase the alimony and life insurance obligations of plaintiff Eugene Wolkoff, as well as her request for counsel fees.

The parties were married in 1971. Three children were born of the marriage, the youngest of whom is now twenty-eight years old. The parties were divorced on December 17, 1985. Their divorce judgment incorporated a property settlement agreement (PSA) whereby defendant received permanent alimony of $1150 per month and $900.00 per month in child support, subject to cost-of-living adjustments.

In 1989, defendant moved to increase alimony and child support claiming an increase in the children's needs; an increase in plaintiff's income; and her inability to contribute to her support as contemplated in the PSA. A plenary hearing was held on February 14, 1990, resulting in an order issued on May 21, 1990, increasing child support but denying all other relief. Upon plaintiff's motion to reconsider that order, the Family Part judge entered an order on July 27, 1990, reducing the amount of the child support increase and otherwise affirming plaintiff's support obligations.

In September 2004, defendant moved to compel production of plaintiff's tax returns from 1994 through 2003. Another Family Part judge entered an order requiring the parties to exchange their tax returns for 2001 through 2003.

On November 29, 2005, defendant filed a second motion to modify alimony based on a claim of changed circumstances. A third Family Part judge heard oral argument on February 10, 2006, and, on January 29, 2007, issued an order denying (1) defendant's request for an increase in alimony; (2) an increase in plaintiff's life insurance coverage; and (3) counsel fees.

On appeal, defendant raises the following issues for our consideration:

POINT I.

THE TRIAL COURT ERRED IN FINDING THAT THE MARITAL STANDARD OF LIVING WAS ESTABLISHED BY [THE 1990 JUDGE'S] DECISION, WHICH GRANTED THE DEFENDANT AN INCREASE IN CHILD SUPPORT BUT MAKES NO MENTION OF ALIMONY OR MARITAL LIFESTYLE.

POINT II.

THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE DEFENDANT'S SUBSTANTIAL CHANGE IN CIRCUMSTANCES WARRANTING A MODIFICATION OF ALIMONY.

POINT III.

THE TRIAL COURT COMMITTED ERROR IN FAILING TO HOLD A PLENARY HEARING ON THE ISSUE OF RECALCULATION OF SUPPORT UPON THE EMANCIPATION OF THE CHILDREN, PURSUANT TO . . . [THE] DECEMBER 2004 ORDER.

POINT IV.

THE COURT ERRED IN FAILING TO ENFORCE THE PARTIES' AGREEMENT AS TO THE PLAINTIFF'S LIFE INSURANCE OBLIGATION.

We concur with defendant that the Family Part judge did not establish the marital standard of living in 1990. We further concur with defendant's contention that the Family Part judge erred in failing to conduct a plenary hearing in 2006, based on defendant's claim of a change in circumstances. Therefore, we reverse the order of January 29, 2007, and remand for a plenary hearing. Because plaintiff's life insurance obligation is related to his alimony obligation, and because an award of counsel fees must abide final disposition of defendant's motion, we direct the trial court to re-visit those matters on remand.

I.

A. The 1990 Hearing

In their motion papers as well as their testimony at the 1990 hearing, the parties presented conflicting views of the marital lifestyle.

The parties lived in Westfield, New Jersey, for the first ten years of the marriage. Throughout the marriage, plaintiff was employed by Merck and Company and/or its subsidiary. Defendant earned a bachelor's degree in architecture from the Pratt Institute in 1973, but remained unlicensed. Defendant was employed prior to the birth of the parties' first child in 1974. After the birth of their second child, defendant worked part-time as a draftsperson until becoming pregnant with the third child. Between 1980 and 1981, defendant worked as a building inspector for the town of Westfield.

In 1981, plaintiff's employer temporarily assigned him to Buenos Aires, Argentina, and the family moved there. The parties rented their Westfield home to a tenant during this time.

Defendant certified that, while living in Argentina, the parties rented a home for $6000 per month. She described the home as 6000 square feet in size, with five bedrooms, five bathrooms, two kitchens, a pool and a separate home for a live-in maid. Defendant certified that the parties belonged to a country club, dined out several times ...


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