On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-1399-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Chambers.
Plaintiff Roddy R. Ennico appeals from the order of July 12, 2007, denying his request to terminate his alimony obligation to his former wife, defendant Louise M. Ennico.
After a twenty-six year marriage,*fn1 the parties were divorced in 1997. Three children were born to the marriage, all of whom are now emancipated. In the Property Settlement and Support Agreement dated March 18, 1997, reached at the time of the divorce, plaintiff agreed to pay defendant permanent alimony in the sum of $6,000 per month. At the time, he was employed in the securities industry on Wall Street, and he was earning a salary of about $200,000 per year.
Thereafter, in 1998, plaintiff lost his job, and he had to deplete his savings and sell assets in order to meet his daily living expenses and pay his alimony obligation. As a result, he applied to the court for a reduction in his alimony payments. Plaintiff's employment expert at that time indicated that plaintiff's future employment prospects were likely to result in earnings of between $50,000 and $100,000 per year. Plaintiff indicated that his net worth was only $188,399. The parties reached a settlement of that application, memorialized in the Order Modifying Final Judgment dated August 25, 2000, in which defendant's alimony obligation was reduced to $2,500 a month.*fn2
Defendant, who was a full-time homemaker for most of the marriage, states that she modified her lifestyle in light of this reduction in her alimony. She sold what she describes as a luxury town home in favor of a smaller, older and less expensive home in a retirement community. She was able to obtain a position earning $12 an hour which she held until the company went out of business in late 2000. She now does some baby-sitting to supplement her income. In her certification to the court, she indicated that her monthly income consists of alimony, her share of plaintiff's pension totaling $329 a month, baby-sitting income totaling $430 a month, and payments from her individual retirement account (IRA) totaling $500 a month. These sums cover her expenses of $3,364 a month, with a few hundred dollars to spare. At the time of the application below, she had assets, including the equity in her house, of $489,600.
Since the modification agreement, plaintiff relocated to California with his second wife. He suffered a major heart attack and has been diagnosed with triple vessel disease, although there is no medical opinion in the record that he is medically unfit to work. He was able to secure employment earning $90,000 per year, but that employment ended in 2004. The next year plaintiff and his second wife established a mortgage business, investing their personal assets in that business. Unfortunately, the business failed a year later in 2006. Their gross income for 2006, as reflected on their personal federal income tax return was $80,949. Defendant and his second wife have a personal obligation of $200,000 arising from the business. In addition, defendant has been named personally in three lawsuits arising from his involvement in the mortgage business, and he has paid attorney fees of $70,000 in his defense. He and his second wife undertook legal guardianship of his second wife's grandson, causing them to incur additional expenses for the child's care.
Due to these financial setbacks, plaintiff filed this second post-judgment application seeking to terminate his obligation to make alimony payments. At the time of the application, plaintiff was unemployed*fn3 and invading assets to meet his alimony obligation and living expenses. A review of plaintiff's 2007 Case Information Statement (CIS) reflects that plaintiff's monthly household expenses total $17,045, exclusive of the alimony payments. These expenses include a mortgage payment of about $3,600 a month on a $1.1 million home in California, lease payments for two Mercedes Benz vehicles for plaintiff and his second wife, debt service of $3,918 per month, and expenses for his second wife's grandchild. Plaintiff's expenses are in stark contrast to defendant's living expenses of only $3,364 per month. Plaintiff's 2007 CIS indicates that his net assets are valued at $265,200, including his share of the equity in his home. While this sum is substantially less then defendant's assets, this sum is actually more than the amount of net assets plaintiff had when his alimony payments were reduced in 2000.
After entertaining oral argument on July 12, 2007, the trial court rendered an oral decision that date denying plaintiff's application to terminate the alimony payments. On August 29, 2007, the trial court issued a written decision pursuant to Rule 2:5-1(b). In that written decision, after setting forth the applicable law and the facts of the case, the trial summarized its decision as follows:
At oral argument, the Court found that Plaintiff had failed to make a prima facie showing of a change in circumstances. The court found that in fact, Plaintiff's income had increased from 2000 to 2006. In 2000, Plaintiff had been unemployed, while in 2006, Plaintiff earned $80,949.00 gross, according to his own 1040. Accordingly, the Court found that no plenary hearing was necessary.
Additionally, the Court found that Plaintiff was voluntarily and temporarily underemployed. The Court found that Plaintiff had voluntarily moved to Southern California, had voluntarily invested in Dynamax Mortgage, and had voluntarily assumed guardianship over his new wife's grandson. The Court also found that although Plaintiff had suffered a heart attack, Plaintiff's skill is in the financial field, a field which does not typically require manual or physical labor.
The Court found that Plaintiff did not have any bar to employment in the financial field. The Court notes that Plaintiff did not at any time argue that his employment status was now ...