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Miele v. Miele

November 2, 2009

JOSEPH E. MIELE, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
KATHY LEE MIELE, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-337-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2009

Before Judges Miniman and Waugh.

Plaintiff Joseph Miele appeals the denial of his motion for a reduction in alimony. Defendant Kathy Lee Miele cross-appeals the denial of her application for counsel fees. We reverse and remand for further proceedings consistent with this opinion.

I.

We discern the following facts from the record. The parties were married in October 1978 and divorced in December 2005. They had two children, both of whom were emancipated at the time of the divorce.

The financial terms of the divorce were resolved through a property settlement agreement (PSA). The first paragraph of the alimony section of the PSA obligated Joseph*fn1 to pay "permanent alimony" in the amount of $2,167.00 per month. It provided that the obligation was based on Joseph's "anticipated gross income in the amount of $165,000.00 per year" and Kathy's "imputed gross income in the amount of $25,000.00 per year." The yearly alimony obligation was $26,004.00. That paragraph further provided that Joseph's obligation to pay alimony would terminate on his or Kathy's death, or Kathy's remarriage or cohabitation. It also provided that the obligation "may be modified or terminated based upon changed circumstances including, but not limited to, [Joseph's] retirement."

The second paragraph of the alimony section provided that, "in addition to the foregoing," Joseph was to "make a lump-sum payment to [Kathy] in lieu of a greater alimony award, which payment shall be in the amount of $170,000.00." The following additional language was handwritten as an addenda to that requirement: "The $170,000.00 payment to be made by [Joseph] to [Kathy] represents a buy-out of twelve (12) years of alimony at the rate of $26,000.00 per year, which amount has been tax effected and discounted for present value."

The fourth paragraph of the alimony section set forth the parties' agreement that they would exchange their W-2 and 1099 forms, as well as their tax returns, for the years 2006, 2007, and 2008. It provided that there would be no further financial disclosure absent a court order.

It appears that the reference to Joseph's "anticipated gross income" is related to the fact he had involuntarily changed employment in 2005, the year the PSA was signed. From 1986 until December 2004, when he was laid off, Joseph was employed by Charter One Mortgage. His total income from that employment for 2004 was $331,295.72, of which $109,298.00 came from the sale of stock options.*fn2 The non-stock-related income for 2004 was $229,997.72.

In January 2005, Joseph obtained employment at National City Mortgage, at which he is apparently paid on a commission basis only. For 2005, he earned $152,975.10, slightly less than the "anticipated gross income" of $165,000.00 mentioned in the PSA. In 2006, he earned $107,853.55; and in 2007, he earned $89,976.30. In connection with the motion at issue on this appeal, Joseph estimated that his 2008 income would be in the neighborhood of $95,000.00.

Joseph moved for a reduction in his alimony obligation in July 2007. Kathy opposed the motion and sought counsel fees. The Family Part judge denied the motion and awarded counsel fees to Kathy. No appeal was taken from that order.

Joseph filed a second motion for a reduction in alimony in July 2008. Kathy again opposed the motion and sought counsel fees. A different Family Part judge denied the ...


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