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Welland v. Welland


February 3, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-172-94.

Per curiam.


Argued November 5, 2008

Before Judges Wefing, Parker and Yannotti.

In this post-judgment matrimonial matter, plaintiff Jane Welland appeals from an order entered on June 22, 2007 denying her motion for reconsideration of an order entered on April 27, 2007 terminating alimony payments as of March 15, 2007.

The parties were married on December 22, 1968 and divorced on April 21, 1997. A property settlement agreement (PSA) was incorporated into the final judgment. In the PSA, the parties agreed that defendant would pay plaintiff $120,000 a year in alimony at the rate of $10,000 per month. The PSA also included an anti-Lepis*fn1 provision, which precluded plaintiff from seeking modification of alimony for any reason but allowed defendant to move for modification if his annual income fell below $360,000. In accordance with the PSA, the parties' assets, which included three homes, a half-dozen vehicles and defendant's retirement accounts, were distributed equitably though not equally, with defendant receiving the greater share.

Defendant had been employed as a senior vice president of Citicorp. Although plaintiff has a B.S. from the University of Pennsylvania and a Masters Degree from Newark State College, she claimed that she could not work because of psychological issues.

In November 1999, defendant was terminated by Citicorp for cause after an investigation revealed that he had accepted lavish trips from vendors. Defendant sued Citicorp, claiming breach of contract, age discrimination and a violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. §§1001 to 1461. In 2003, the suit was decided in favor of Citicorp. Defendant claims he has been unable to obtain employment in his field since he was terminated by Citicorp.

In 2000, prior to disposition of the Citicorp suit, defendant sought a reduction in alimony based upon changed circumstances. The parties entered into a consent order resolving the motion and reducing alimony to $8,000 per month. In 2004, defendant sought to terminate alimony completely. The court denied that motion but further reduced his obligation to $7,000 per month. Although we do not have a statement of reasons or transcript of that motion, defendant claims that his application was denied because, at the time, he was receiving deferred compensation from General Electric and Citicorp totaling $238,041 for the year.

In 2007, defendant again moved to terminate alimony, claiming that his age -- now sixty-four -- precluded him from obtaining employment; that his deferred compensation accounts were fully paid out; and that his current income, derived entirely from social security, a pension and a small amount of dividends and interest, totaled only $40,886. Defendant's motion was granted and alimony was terminated as of March 15, 2007. At the time of the motion, however, defendant still owned two homes, one in Long Branch, New Jersey, and the other in Lutz, Florida; traveled extensively with his new wife; and owned several vehicles and motorcycles. Defendant's lifestyle is not indicative of a $40,000 per year income.

In this appeal, plaintiff argues: (1) the trial court is bound by the PSA; (2) the trial court failed to apply the changed circumstances criteria; (3) defendant is voluntarily unemployed; and (4) we should assume original jurisdiction and make findings of fact rather than remand the matter to the trial court.

"Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005)). We generally accord deference to a family court's findings of fact because of its special training and expertise in such matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference," however. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, plaintiff argues that the trial court erred in failing to analyze defendant's motion under the changed circumstances doctrine. Plaintiff maintains that defendant is voluntarily unemployed and should not be relieved of his alimony obligation. She argues further that the PSA allowed for modification but not termination of alimony.

In considering the motion, the trial court reviewed the parties' certifications and exhibits, including their case information statements, tax returns and other financial information. Based solely upon that documentary evidence, the trial court made credibility findings and concluded that the circumstances "call for a reduction . . . if not a termination" of alimony.

The court, however, apparently overlooked the parties' disputed facts relating to defendant's unemployability and his income. The court made credibility determinations based solely upon defendant's certification and documents submitted in support of his claims.

In our view, defendant has, at best, demonstrated a prima facie case for changed circumstances, warranting a plenary hearing to determine the credibility of his claims. Lepis, supra, 83 N.J. at 157. Moreover, the financial information of defendant's current wife may be necessarily involved in determining defendant's ability to continue his alimony obligation. Id. at 158. In addition to which, the court must make a determination as to plaintiff's need before relieving defendant of his alimony obligation after a twenty-nine-year marriage.

Plaintiff argues that the PSA allows for modification of alimony but not termination. We disagree. The language of the PSA allows for defendant to move for "modification" of alimony if his income falls below $360,000 and for "reduction" of alimony when he retires. In our view, the PSA allows for termination of alimony under certain circumstances, as well as for "modification" or "reduction" under certain circumstances. Reading the agreement otherwise could result in an absurd result, such as "modification" or "reduction" of alimony to $1.00 per week, as noted by the trial court.

Accordingly, we reverse the order of June 22, 2007 denying plaintiff's motion for reconsideration and the order entered on April 27, 2007 terminating alimony payments as of March 15, 2007. We remand the matter for further discovery and a plenary hearing to determine whether alimony may be modified in accordance with the PSA.

Reversed and remanded.

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