On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-973-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris and Newman.
Defendant, J. Garvin Walsh, the former husband of plaintiff, Marjorie M. Walsh, appeals from orders setting the amount of his alimony obligation for the year 2008, denying his motions for recusal of the trial judge, and denying his motion for reconsideration of the order denying recusal. We reverse the order of alimony and remand for recalculation of the alimony award. We affirm the orders denying recusal of the trial judge.
We need not trace the extended history of this case which was before this court in Walsh v. Walsh, No. A-4046-03 (App. Div. Aug. 11, 2006). That decision affirmed in part, reversed in part, and remanded for further proceedings consistent with that opinion. We also reversed and remanded for additional proceedings on the cross-appeal. The trial court rendered a decision on remand and that decision is before our court which was heard back-to-back with this appeal on April 21, 2010.
Turning to this appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT'S AWARD OF ALIMONY WAS UNDERTAKEN WITHOUT SUFFICIENT FINDINGS OF FACT OR CONCLUSIONS OF LAW, IS NOT SUPPORTED BY THE EVIDENCE IN THE RECORD, AND SHOULD BE REVERSED.
THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING AN AWARD OF ALIMONY WITHOUT GIVING PROPER CONSIDERATION TO APPELLANT'S NEEDS.
THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING AN AWARD OF ALIMONY THAT EXCEEDED APPELLANT'S ABILITY TO PAY.
THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING AN AWARD OF ALIMONY ON THE BASIS OF AN IMPERMISSIBLE IMPUTATION OF INCOME, AND ON AN ANTICIPATED LIQUIDATION OF APPELLANT'S ASSETS.
THE DECISION OF THE TRIAL COURT TO IMPOSE AN ADDITIONAL $2,000 PER MONTH ALIMONY OBLIGATION ON APPELLANT IN ORDER TO PREVENT FORECLOSURE ON THE MARITAL HOME ADDRESSED AN ISSUE THAT WAS NOT BEFORE THE COURT, AND THUS WAS A MISTAKEN EXERCISE OF DISCRETION WHICH SHOULD BE REVERSED.
THE RECORD BELOW PROVIDES A REASONABLE BASIS FOR APPELLANT'S BELIEF THAT THE TRIAL COURT HAS RENDERED AN UNFAIR AND BIASED HEARING AND JUDGMENT IN THIS MATTER. ON THE BASIS OF THAT REASONABLE BELIEF, JUDGE HANSBURY SHOULD BE DISQUALIFIED FROM FURTHER PARTICIPATION IN THIS MATTER, AND THE DECISIONS OF THE COURT BELOW SUBSEQUENT TO ITS DENIAL OF APPELLANT'S MOTION FOR DISQUALIFICATION (March 28, 2008) SHOULD BE REVERSED.
Before addressing defendant's contentions as to the alimony calculation, it is well to consider the controlling principles of law. An alimony order is subject to review and modification upon a showing of changed circumstances. N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 145-46 (1980); see Crews v. Crews, 164 N.J. 11, 24 (2000). The party seeking such modification has the burden of demonstrating that changed circumstances have occurred. Innes v. Innes, 117 N.J. 496, 504 (1990); Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998). One changed circumstance that can result in a downward modification is a decrease in the supporting spouse's income. Crews, supra, 164 N.J. at 30; Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999).
Thus, when the supporting spouse seeks a decreased alimony obligation due to changed financial circumstances, evidence regarding that spouse's changed circumstances "would be material in determining whether [that spouse] can show that changed circumstances have substantially affected his or her ability to support himself or herself and the supported spouse." Crews, supra, 164 N.J. at 30-31. In establishing alimony, a court may "take into account assets received by either party in the equitable distribution of the marital property." Miller v. Miller, 160 N.J. 408, 420 (1999). In short, in an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse's ability to pay. A supporting spouse's potential to generate income [through both earned income and the use of other assets] is a significant factor to consider when determining his or her ability to pay alimony. [Miller, supra, 160 N.J. at 420 (emphasis added) (citations omitted)].
The Miller Court further reiterated that the same factors applied in initially establishing alimony should be considered on a motion for a modification of a support order; namely, the dependent spouse's needs, that spouse's ability to contribute thereto, and the supporting spouse's ability ...