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Fox v. Fox

January 5, 2010

LEE M. FOX, PLAINTIFF-RESPONDENT,
v.
EILEEN R. FOX, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-357-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 19, 2009

Before Judges Lisa, Baxter and Alvarez.

Defendant Eileen R. Fox appeals from an alimony award entered post-divorce, claiming it is inadequate, and the denial of her request for counsel fees and costs. For the reasons set forth below, we affirm.

Plaintiff Lee M. Fox and defendant married on June 4, 1988 and have two adult children. The parties separated on August 18, 2003; a dual final judgment of divorce was granted on February 17, 2006. In the divorce action, each was made responsible for their individual counsel fees.

Defendant appealed but almost immediately sought a temporary remand to the trial court for reconsideration of alimony in light of her Social Security Disability (SSD) award. An order was entered remanding the matter for that purpose on January 31, 2007.

As a result of the remand hearing, the trial court on January 11, 2008 ordered plaintiff to pay $492 per week in permanent alimony until February 2009, when the payment would decrease to $365 per week due to defendant's anticipated eligibility for Medicare.*fn1 On January 31, 2008, an amended order was entered, which is unrelated to this appeal. Plaintiff simultaneously filed a motion seeking reconsideration of the January 11 alimony order and requesting the court to compel defendant to provide proof of medical insurance coverage. Defendant cross-moved for a recalculation of alimony based on changed circumstances triggered by the sale of her residence in Clayton, New Jersey, the loss of rental income that had been imputed to her as the owner of the Clayton property, and her relocation to Kentucky. In an April 18, 2008 order, the court granted plaintiff's request to compel defendant to provide proof of health insurance and denied both parties' requests for reconsideration of the January 11 alimony order. Thereafter, in orders dated July 28, 2008 and August 11, 2008, the court also denied defendant's motion for reconsideration of the denial of her request for counsel fees and costs.

Plaintiff is in the business of repairing school bus seats and also conducts antiques auctions. Plaintiff's position throughout all proceedings in the trial court has been that despite defendant's physical conditions, she is able to work on at least a limited basis. Defendant suffers from lupus and progressive hearing loss. She received approximately $110,000 by way of equitable distribution, including her share of the proceeds of sale of the marital home.

Plaintiff's most recent case information statement (CIS) indicated 2004 net income of $41,700, plus an additional $2020 in unearned gross income. Defendant's February 20, 2008 CIS indicated net 2007 income from alimony of $22,210 as well as monthly unearned income of $771 in SSD. She currently pays her brother $1000 monthly rent for the modular three-bedroom, two-bath home she now occupies in Kentucky. According to the settlement statement attached to defendant's moving papers, she netted only $7600.20 from the sale of the home she purchased individually in New Jersey after the sale of the marital residence. The home was actually in foreclosure at the time of sale. While residing in that second property, defendant had unrelated adults living with her who paid no rent. At the time of the remand hearing, defendant claimed she had no health insurance because she could not afford any, and that she had not had health insurance since the divorce trial. She further testified that she could not afford to pay for regular doctor visits or medication for her lupus condition without insurance. She also claimed that to have maintained medical insurance after the divorce would have cost her $328.55 monthly for a policy having a $10,000 deductible.

Defendant has not worked, or attempted to find work, since October 2003 because of her medical conditions. She did acknowledge at the remand hearing having worked a couple of auctions earning $360 in one year. She testified that she was permitted to earn up to $900 a month without the loss of SSD.

Defendant's position was that her medical expenses would decrease substantially once she was on Medicare, but she did not provide more detailed information with regard to those expenses. Defendant's SSD payments of $771 per month began in February 2007. She became eligible for Medicare as of February 2009.

Defendant's points on appeal are:

POINT I. THE COURT ERRED IN FAILING TO CALCULATE THE DEFENDANT'S TAX CONSEQUENCE WHEN DETERMINING HER NEED FOR SUPPORT.

POINT II. THE REMAND JUDGE ERRED IN ARBITRARILY DESIGNATING A DATE FOR THE DECREASE IN SUPPORT WITHOUT CONSIDERING THE COST OF MEDICARE AND A MEDICARE SUPPLEMENT AND ASSUMING THAT THE ...


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