October 16, 2009
STEPHEN IANNEILLO, PLAINTIFF-APPELLANT,
FRIEDA IANNEILLO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Hudson County, Chancery Division, Family Part, FM-09-2193-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Grall and Lewinn.
Plaintiff Stephen Ianneillo appeals from an order enforcing his permanent alimony obligation to defendant Frieda Ianneillo, awarding defendant counsel fees on the motion and denying his cross-motion for a reduction of alimony. Because plaintiff failed to establish a prima facie case of changed circumstances warranting the relief he requested, we affirm.
These are the pertinent and undisputed facts. Plaintiff and defendant married in August 1970. Their two children were born before January 1975. When plaintiff filed his complaint for divorce in 2006 and defendant filed her counterclaim, the parties were both fifty-three years of age and their children were emancipated.
The Ianneillos were able to resolve the economic issues incidental to their divorce. Consequently, on March 26, 2007, they executed a property settlement agreement which the court incorporated in their dual final judgment of divorce.
The Ianneillos agreed to permanent alimony in the amount of $10,000 per year payable in bi-monthly installments. They specified that the amount was based upon plaintiff's earning about $92,000 per year and defendant's earning about $44,000 per year. They further acknowledged, "both parties are gainfully employed and are capable of supporting themselves and can maintain a reasonably comparable lifestyle as that acquired [sic] during the marriage based upon the financial terms set forth in [the] Agreement." Plaintiff agreed to maintain a life insurance policy in the amount of $100,000 designating defendant as the sole beneficiary to guarantee his alimony obligation, and defendant agreed that he could reduce the benefit amount by $5000 every year. The Ianneillos agreed to divide the proceeds of the sale of their marital residence, $215,222.14 equally.
Finally, the Ianneillos had an understanding about counsel fees and costs on subsequent motions to enforce the final judgment. Their agreement provides: "In the event one party breaches a provision of this Agreement and the other party is compelled to seek [c]court intervention for enforcement, the breaching party shall be responsible for the non-breaching party's counsel fees and costs if the non-breaching party is successful on the merits."
Fourteen months after the divorce, on May 19, 2008, plaintiff, who was a senior account manager, and some of his co-workers were notified via conference call that they were being "laid off" effective the following day. Plaintiff collected unemployment compensation for two months while he looked for other work.
Plaintiff did not make the alimony payment due on May 15, 2008. Instead, he told defendant he had lost his job. In June he wrote to defendant urging her to agree to a termination of alimony in return for his promise to maintain life insurance naming her as the beneficiary in accordance with their final judgment of divorce.
In July 2008, plaintiff accepted work at a salary of $1200 per week, or $62,400 per year. After unsuccessful negotiations through the parties' attorneys, plaintiff paid defendant $1316.47 to cover alimony payments due from May 15 through August 15, 2008. The amount of the payment reflects plaintiff's unilateral decision to reduce the bi-weekly payment after May 15 from the $416.66 required by the judgment to $300.05. Thereafter, defendant moved to enforce the judgment, and plaintiff filed his cross-motion for modification.
Beyond asserting that his employment search was diligent and that the responsibilities and duties of his new job were comparable to those of his former job, plaintiff provided no information about his efforts to obtain comparable work and pay or the terms and conditions of his employment. He submitted a pay stub reflecting the salary paid for his first six weeks on the job.
The case information statement and tax return plaintiff submitted in support of his cross-motion reflect that he remarried in 2007. The tax return also indicates that his present wife is in the business of refinishing furniture and deducts operating expenses for use of their home in calculating her profits and loss from that business. Their home has a fair market value of $835,000 and a mortgage of $619,000.
Plaintiff's case information statement lists a monthly mortgage expense, inclusive of property tax, of $3484.10.
In support of his request for a reduction of his alimony obligation, plaintiff contended that given his diminished earnings he could no longer meet his expenses and pay alimony to defendant.
Support orders are subject to increase or reduction when the party seeking modification shows that the relief is warranted. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Changes in circumstances that warrant modification of support are those that substantially affect the parties' relative need and ability to pay. Id. at 151, 155; Stamberg v. Stamberg, 302 N.J. Super. 35, 43 (App. Div. 1997). "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157. Ability to support oneself is measured against the marital standard of living. Id. at 150.
There are well-established criteria a court must consider in determining whether the spouse seeking modification has established a prima facie case for modification. A temporary change is generally deemed inadequate. Id. at 151, 155. And regardless of likely duration, a change in actual income, without more, is not determinative because ability to pay support is a function of the party's assets and the income that he or she could "derive from personal attention to business."
Id. at 150 (quoting Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)). Moreover, when a change in ability to pay support is attributable to a voluntary choice about post-marital lifestyle made by the supporting spouse, our courts recognize that the supporting spouse's choices are limited to the extent that they require a "discontinuance of the financial aid the former spouse" needs to maintain the marital standard of living. Deegan v. Deegan, 254 N.J. Super. 350, 359 (App. Div. 1992) (establishing criteria for considering requests to modify support to accommodate early retirement).
In this case, plaintiff's request for a reduction of alimony was based upon a lay-off promptly followed by his reemployment at a lower salary. His claim was that he was left without the ability to meet his current expenses.
Focusing on the magnitude of the mortgage obligation plaintiff undertook to purchase his new marital residence and the relative insignificance of his alimony obligation in comparison to the monthly mortgage payment he assumed to purchase that home, Judge Sogluizzo concluded that plaintiff's claimed inability to pay alimony was attributable to a financial obligation he voluntarily incurred without regard for his pre-existing obligation to pay alimony.
The evidential materials submitted on the motions support the judge's factual findings, and the law supports her conclusion. With respect to the equities implicated, a supporting spouse who opts to assume a lifestyle that cannot be sustained without depriving his former spouse of needed support, is in the same position as a supporting spouse who opts for early retirement without giving adequate consideration to an obligation to pay alimony. In both cases, the life-style choice must be made in consideration of the pre-existing support obligation. Ibid. Judge Sogluizzo reasoned that if plaintiff did not have an obligation to make the monthly mortgage payment he reports, he would be in a position to pay alimony in the agreed amount.
Although we could affirm the denial of plaintiff's cross-motion solely for the reasons stated by Judge Sogluizzo, there are additional grounds that warrant denial of his cross-motion for modification of alimony. Plaintiff describes the employment action that led him to look for new work as a "lay-off." He did not assert facts that, if believed, would establish that his present earnings are a circumstance that is more than temporary. Further, his conclusionary assertions about "diligent" efforts to find new work at a higher salary do not compare favorably with showings our courts have deemed adequate to establish that apparent underemployment is "involuntary" underemployment. See, e.g., Dorfman v. Dorfman, 315 N.J. Super. 511, 517 (App. Div. 1998) (discussing the evidence of the job-search efforts and results deemed sufficient to demonstrate that the husband's underemployment was neither temporary nor voluntary).
Plaintiff's objection to the award of counsel fees in defendant's favor lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendant was successful on her motion to enforce plaintiff's alimony obligation; the parties' agreement as well as Rule 5:3-5(c)(8) support an award of fees incurred to enforce a support obligation.
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