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Donet v. Donet

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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