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Ashwood v. Klenert

October 10, 2008

JANET ASHWOOD (F/K/A KLENERT), PLAINTIFF-RESPONDENT,
v.
W. THOMAS KLENERT, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-579-03-C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2008

Before Judges C.L. Miniman and Baxter.

Defendant W. Thomas Klenert appeals from a July 2, 2007 order that denied his motion to terminate his permanent alimony obligation. He argues that the trial court misapplied the law of changed circumstances when it evaluated the collapse of the company he owned and his termination from subsequent employment. He maintains that the judge should have found that these changed circumstances were permanent rather than temporary, and should have ordered the termination of his $3,000 per month alimony obligation. We affirm.

I.

Defendant and plaintiff, Janet Ashwood, formerly known as Janet Klenert, were married on April 14, 1973. Twenty-nine years later, plaintiff filed a complaint for divorce. After an eight-day trial, Judge Accurso rendered a comprehensive written opinion that addressed an array of issues. The final judgment of divorce (JOD) was entered on June 19, 2006. Only limited portions of that opinion and JOD are pertinent to the issues defendant raises in the present appeal.

Among them is Judge Accurso's discussion of the collapse of the manufacturing company of which defendant was a co-owner for the fifteen years preceding the filing of the complaint for divorce. The company, known as Bess Manufacturing, Inc. (Bess), manufactured table linens, runners, doilies and decorative pillows. Toward the end of 2004, increasing strain between defendant and his two former business partners resulted in their agreement to purchase defendant's interest in the corporation for the sum of $900,000. In addition, defendant was to receive a four-year consulting contract for $100,000 per year beginning in January 2005.

Because Bess continued its downward slide after defendant left the company in 2004, his former partners had, at the time of the entry of the JOD, paid him only $115,000 of the $900,000 due as a result of the buy-out. Had defendant's former partners made each required monthly installment of $18,750, defendant would have received approximately $300,000 by the time the JOD was entered. The judge concluded that "[b]ecause of Bess's demise," it was "unlikely" that plaintiff and defendant would receive any amount close to the $1,300,000 owed by Bess to defendant.

At the time of the divorce trial, defendant was employed by Anchor Home Furnishings with an annual projected income of between $110,000 and $120,000. Based upon expert testimony, Judge Accurso concluded that defendant had an earning capacity of $120,000 per year and accordingly imputed to him that amount of income. She concluded that plaintiff had an earning capacity of $30,000 per year.

Judge Accurso's opinion also discussed plaintiff's inheritance from her mother, in the form of a testamentary trust with a current corpus of approximately $600,000. The trustees have refused to make any discretionary distribution of the corpus to plaintiff and were not obligated to make a mandatory distribution of trust corpus until June 21, 2008. Because no distributions had been made as of the date of trial, the judge concluded that, at least at that juncture, the inheritance should have no bearing on plaintiff's possible entitlement to alimony.

Ultimately, after considering the statutory factors contained in N.J.S.A. 2A:34-23(b), the judge ordered defendant to pay plaintiff $3,000 per month in permanent alimony.

Approximately two months after the JOD was entered, defendant filed his first motion to terminate that alimony obligation.*fn1 In his motion, he maintained that his monthly income had plummeted because he had been laid off from his employment at Anchor Home Furnishings (Anchor). He asserted that he had sought re-employment in the field of home furnishings, but had been unsuccessful in obtaining work. Consequently, he obtained a real estate license but had not yet earned any real estate commissions. In November 2006, Judge Fleming denied defendant's motion to terminate his alimony obligation, concluding that because defendant's reduction in income had lasted for only a few months, it was premature to consider the drastic remedy of eliminating defendant's spousal support obligation.*fn2

A mere four months later, on March 23, 2007, defendant filed his second motion to terminate his alimony obligation. It is from the denial of that motion that he now appeals. In support ...


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