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Bennekamper v. Bennekamper

August 21, 2008

ROBERT H. BENNEKAMPER, PLAINTIFF-APPELLANT,
v.
ROSE ANN BENNEKAMPER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Chancery Division, Family Part, Middlesex County, FM-12-11195-88J.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2008

Before Judges Winkelstein, Yannotti and LeWinn.

Plaintiff Robert H. Bennekamper appeals from an order entered by the Family Part on December 15, 2006, which denied his motion to terminate or modify alimony, granted defendant Rose Ann Bennekamper's motion to increase alimony, and awarded defendant counsel fees. Plaintiff also appeals from an order entered on January 20, 2006, which denied his motion for a change of venue from Middlesex to Ocean County. For the reasons that follow, we affirm the denial of plaintiff's motion to terminate or modify alimony and the increase in plaintiff's alimony obligation but set aside the award of counsel fees. We also affirm the denial of plaintiff's motion to change venue.

The parties were divorced in 1998 after a twenty-six-year marriage. Pursuant to the property settlement agreement (PSA) incorporated into their divorce judgment, plaintiff was obligated to pay defendant permanent alimony of $225 per week.

On April 29, 2005, plaintiff filed a motion to terminate or, alternatively, to reduce his alimony obligation. Defendant filed a cross-motion seeking an increase in alimony. On August 9, 2005, the trial court entered an order denying plaintiff's motion and increasing defendant's alimony to $370 per week. Plaintiff filed a motion for reconsideration of that order and requested a plenary hearing. Defendant cross-moved for enforcement of the order and requested counsel fees for both motions. On September 23, 2005, the court granted plaintiff's request for a plenary hearing and awarded defendant counsel fees totaling $5,790.

On October 26, 2005, the trial court ordered that discovery be completed within forty-five days. On December 8, 2005, plaintiff filed a motion to change venue, which the court denied by order of January 20, 2006.

The trial court held a plenary hearing on August 18, 2006, and filed a written decision on December 15, 2006. In that decision, the judge reaffirmed his earlier order denying plaintiff's motion to modify alimony and increasing defendant's alimony to $370 per week. The court also ordered plaintiff to pay defendant's counsel fees in the amount of $31,320 within ninety days. On May 2, 2007, the trial court entered an order requiring plaintiff to post the amount of $47,675 in the Superior Court Trust Fund. This amount represented $33,030 still due in counsel fees previously awarded; $12,035 in back alimony plaintiff owed to defendant; and $2,610 representing alimony arrears that had accumulated since the December 15, 2007 order.

On appeal, plaintiff contends that the court erred in (1) failing to find that plaintiff had established changed circumstances warranting termination, or at least modification, of his alimony obligation; (2) calculating plaintiff's current income; (3) awarding defendant $31,320 in counsel fees; and (4) denying a change of venue.

Having reviewed the entire record, with the exception of the counsel fee award, we affirm both the December 15, 2006 and January 20, 2007 orders. We briefly review the background of this matter.

I.

The parties have been divorced for ten years. At the time of the August 18, 2006 plenary hearing, plaintiff was 64 years of age and defendant was 63 years of age. In addition to the permanent alimony award to defendant, the parties' PSA provided that they would equally share equitable distribution of the following assets: (1) the net proceeds of sale of the marital residence; (2) the parties' individual retirement accounts (IRAs) and bank accounts; (3) and plaintiff's American Steel pension which was valued at $113,478. Upon sale of the marital residence, defendant received $56,448.60 representing her share, as well as $56,739 as her fifty percent share of plaintiff's pension.

During the marriage, plaintiff worked as a mechanic and driver, earning between $50,000 and $60,000 per year. Defendant was employed as a receptionist/secretary. After the marriage, plaintiff continued working for his same employer until he was laid off in January 2004. Plaintiff thereafter received unemployment benefits through 2005, at which time he decided to retire.

Plaintiff presented evidence that he currently suffers from carpal tunnel syndrome and has a 42% hearing loss in each ear. Plaintiff presented a report by Dr. Martin Riss in support of his carpal tunnel syndrome diagnosis; he also produced a ...


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