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Donet v. Donet

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 5, 2009

CARLOS A. DONET, PLAINTIFF-APPELLANT,
v.
DONNA MARIE DONET, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1013-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2009

Before Judges Rodríguez and Chambers.

Plaintiff Carlos A. Donet appeals from the order of October 31, 2008, denying his application to terminate his alimony payments to his former wife, defendant Donna Marie Donet. We affirm.

I.

The record indicates that the parties were married on November 1, 1980, and two sons were born to the marriage. While plaintiff worked full-time during the marriage, defendant sometimes did not work and at other times worked part-time. The parties were divorced on May 23, 2006. The sole marital asset, the marital home, was sold, and the proceeds were divided between the parties. At the time of the divorce, the parties stipulated that the oldest son, who was living with plaintiff, was emancipated. Plaintiff was directed to pay defendant child support payments for the younger son, who was living with defendant at the time.

The trial court awarded defendant permanent alimony in the amount of $10,200 per year. In doing so, the trial court took into account such factors as the length of marriage and the age, health, education, and relative earning capacities of the parties. It found that based on her education and past work experience, defendant had an earning capacity of about $11,000 per year, and that plaintiff earned $45,000 per year, although he had an earning capacity of somewhat more than that. It found that defendant's necessary expenses were $23,160 a year.

In September 2008, a little more than two years after the divorce, plaintiff moved before the trial court for various forms of relief, including termination of the permanent alimony payments based on changed circumstances. The parties reached agreement on a number of issues, and other issues were resolved by the trial court. Plaintiff has appealed the court's denial of his application to terminate alimony.

Plaintiff contends that he made a sufficient showing of changed circumstances to justify termination of his alimony payments. Specifically, the changed circumstances he asserts are that the parties' youngest son is now in college and living at college, not with defendant;*fn1 that defendant's income increased to $14,877 in 2007, which is almost $4,000 above the $11,000 imputed to her by the trial court at the divorce trial; that defendant received a tax credit of $1,400 in 2007; and that defendant incurred no federal tax liability in 2007, while the divorce court has assumed her taxes would be $3,180. While plaintiff was unemployed when the motion was made, by the time it was heard, he had retained employment at about the same income level he had at the time of his divorce, namely, $45,000 per year.

II.

The purpose of an alimony award is "to assist the supported spouse in achieving a lifestyle that is reasonably comparable" to the marital standard of living. Crews v. Crews, 164 N.J. 11, 16 (2000). The court has the power to modify an alimony award based on changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980); see also N.J.S.A. 2A:34-23 (providing that support orders "may be revised and altered by the court from time to time as circumstances may require"). Since the goal of an alimony award is to enable the dependent spouse to maintain the standard of living the parties enjoyed while married, that standard serves as the "touchstone" for adjudicating motions to modify the alimony award. Glass v. Glass, 366 N.J. Super. 357, 370-71 (App. Div.), certif. denied, 180 N.J. 354 (2004).

The support award will be decreased to the extent it is unnecessary to maintain the standard of living of the dependent spouse. Lepis v. Lepis, supra, 83 N.J. at 152-53. Thus, a significant improvement in the financial circumstances of the dependent spouse is a changed circumstance warranting reconsideration of a support award. Glass v. Glass, supra, 366 N.J. Super. at 371 (stating that "'a significant change for the better in the circumstances of the dependent spouse,' [] may obviate the need for continued support" (citation omitted)). However, the change must be "significant" and not a "modest" increase in income. Id. at 379.

The burden is on the litigant seeking a modification of the support award to first make a prima facie showing of changed circumstances. Crews v. Crews, supra, 164 N.J. at 28. Once a prima facie showing has been made, the court may order any necessary discovery and conduct a plenary hearing to resolve any questions of fact. Lepis v. Lepis, supra, 83 N.J. at 157-59. Whether to modify an alimony award based on changed circumstances rests in the sound discretion of the family court. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).

Based on this record, we find no abuse of discretion here. The increase in defendant's earnings from the projected $11,000 per annum to $14,877, while a goodly percentage, is modest in terms of actual dollars. The record is silent on whether the tax benefits in defendant's 2007 income tax return reflect permanent or temporary benefits. Temporary changes are insufficient to support a finding of changed circumstances. Innes v. Innes, 117 N.J. 496, 504 (1990). Certainly, the facts presented by plaintiff would not warrant a termination of alimony, since defendant's increase in income as alleged by plaintiff is still less than the alimony payments she receives. While the facts alleged by plaintiff may be approaching a showing of changed circumstances, the trial court did not abuse its discretion in finding that this threshold has not been met.

We also reject plaintiff's contention that the trial court erred in failing to impute additional income to defendant, because she is working only part-time and not full-time. In order to impute income, the court must make a finding that the party is voluntarily underemployed without just cause. Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). The party must be "intentionally failing to earn that which he or she is capable of earning." Ibid. The imputation of income is discretionary and requires the judge to "realistically appraise" the party's job prospects and earning capacity. Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004).

At the divorce trial, plaintiff had also claimed that defendant was voluntarily underemployed. At the time of the divorce, the trial court found that defendant had not completed high school, that she was 52 years old, that she was in poorer health than plaintiff, that she did not have any substantial vocational skills, and that her earning capacity was $11,000 per annum. In rejecting plaintiff's argument at that time that defendant was underemployed, the divorce court stated:

Plaintiff's theory that Mrs. Donet is voluntarily underemployed, and that her economic condition is her own fault has not resonated with this court. When you analyze her education level, her skills, her historic earning capacity, you match that with her age and her health, that argument fails and... plaintiff has failed to carry his burden of proof on that issue.

We do not see that these fundamental circumstances have changed, that would warrant imputating income to defendant at this time.

The other issues raised in this appeal do not merit further discussion. R. 2:11-3(e)(1)(E). For all of the reasons set forth above, the decision of the trial court denying plaintiff's application to terminate alimony is affirmed.

Affirmed.


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