May 20, 2009
LEON WILLIAMS, PLAINTIFF-APPELLANT,
DAWN WILLIAMS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FM-13-664-96C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 6, 2009
Before Judges Cuff and Fisher.
In this post-judgment matrimonial matter, plaintiff Leon Williams appeals an order denying his motion to reduce his alimony obligation to defendant Dawn Williams. We affirm.
The parties divorced in 1996 following a twenty-year marriage. The Dual Judgment of Divorce required plaintiff to pay alimony in the amount of $1000 monthly to defendant. Plaintiff continued to pay alimony on a monthly basis until July 2006.
It is undisputed that plaintiff was employed by JP Morgan Chase (Chase) for many years in its information technology department. In August 2006, plaintiff lost his job. He was making $185,000 annually and received a one-year severance.
In October 2006, plaintiff filed a motion to modify alimony based on cohabitation by defendant. On November 16, 2006, the motion was denied without prejudice. The judge did, however, allow a sixty-day period of discovery to explore whether the cohabitation conferred an economic benefit on defendant. Plaintiff did not conduct any discovery or pay alimony. In August 2008, defendant filed a motion to enforce plaintiff's obligation to pay alimony. Plaintiff filed a cross-motion to terminate alimony based on changed circumstances.
In support of his August 2008 cross-motion, plaintiff asserted that his severance pay ceased in August 2007, that he had tried but failed to find comparable work, and that he had attempted unsuccessfully to establish a consultant business focusing on information technology. Furthermore, he alleged that the only employment he could obtain was a position in a florist shop. Defendant asserts, and plaintiff does not deny, the florist shop is owned and operated by plaintiff's girlfriend.
In the Case Information Statement (CIS) that accompanied his motion, plaintiff stated that he received $1,733.33 in gross monthly income ($20,800 annually), and had monthly shelter expenses of $820, monthly transportation expenses of $588, and personal expenses, exclusive of alimony, of $1895. He also disclosed a savings account with a balance of $90,000, three vehicles valued at $33,000, and an Individual Retirement Account valued at approximately $676,000.*fn1 Plaintiff revealed modest liabilities totaling $10,000.
By contrast, defendant's CIS revealed $49,000 annual salary as a teacher, $823 annual pension, and $10,000 annual rent from a condominium owned by her. Her monthly shelter expenses, including costs associated with the leased condominium, totaled $2687, her monthly transportation expenses totaled $177, and her personal expenses totaled $430. She revealed approximately $292,000 in assets and $88,000 in liabilities.
Judge Coogan denied plaintiff's motion. Although plaintiff had lost his job and had not obtained similar employment, the judge found that plaintiff did not establish a prima facie case of changed circumstances. The judge found that plaintiff had sufficient assets to continue to meet his alimony obligation. He noted that plaintiff received a year's salary as severance but ceased to pay his alimony upon termination of his employment. Judge Coogan also granted defendant's motion to enforce the alimony obligation. He found that plaintiff owed $27,000 to defendant and ordered him to pay $2500 each month ($1500 attributable to arrears and $1000 to alimony). Judge Coogan stayed this order conditioned on a deposit of $15,000 with the Probation Department.
On appeal, plaintiff argues that he established a prima facie case of changed circumstances that entitled him to an order terminating his alimony obligation. In the alternative, he urges that the judge should have conducted an evidentiary hearing on the issue. Defendant argues that the motion judge properly denied plaintiff's motion because he failed to establish a prima facie case of changed circumstances.
Orders for support "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. The moving party bears the burden to make a prima facie showing of changed circumstances. Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). A decrease in the obligor's income may be a changed circumstance warranting a revision of a support obligation. Lepis v. Lepis, 83 N.J. 139, 151 (1980).
In Lepis, the Supreme Court addressed the changed circumstances standard. Id. at 157-59. Although expressed in the context of an application to reduce child support, the basic showing for a reduction in alimony is similar. The obligor must establish a diminution in income, earned and unearned, or a substantial increase in the financial circumstances of the former spouse or a combination of changes for both parties. Id. at 151; Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997).
A reduction in salary has long been recognized as a change in circumstances. See, e.g., Martindell v. Martindell, 21 N.J. 341, 355 (1956) (a decrease in resources, standing alone, justifies a reduction in alimony). However, a reduction in salary, even the loss of a large income, may not warrant a reduction in a support obligation if the reduction is temporary.
Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006). If the obligor has assets that produce or have the potential to produce unearned income to meet on-going support obligations, the loss of earned income may not create a changed circumstance. See Connell v. Connell, 313 N.J. Super. 426, 432-33 (App. Div. 1998) (inherited assets and the income produced by such assets are factors to be considered in calculation of a support award).
Here, plaintiff received a severance package that continued his salary for a year. Nevertheless, plaintiff discontinued payment of alimony as soon as his employment ceased notwithstanding receipt of full salary for another year. Plaintiff had substantial assets from which he could pay his support obligation. Although a retirement fund formed a substantial portion of his assets and his Chase pension had been subject to equitable distribution at the time of his divorce in 1996, plaintiff conceded that only a portion of the previously distributed pension asset comprised the current retirement fund. Plaintiff bore the burden to distinguish between the exempt and non-exempt portion of this fund. Innes v. Innes, 117 N.J. 496, 503-04 (1990). He did not do so. Under these circumstances, loss of employment did not lead inexorably to the conclusion that plaintiff had experienced a change of circumstances that required elimination of his alimony obligation.*fn2