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Brown v. Brown

May 25, 2010

THOMAS BROWN, PLAINTIFF-APPELLANT,
v.
THELMA B. BROWN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-144-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2010

Before Judges Payne and Waugh.

Defendant Thomas Brown appeals the July 10, 2009, order of the Family Part with respect to his application for termination or reduction of his obligation to pay spousal support to plaintiff Thelma B. Brown, his former wife.*fn1 Although the order resulted in a reduction in the amount of support, defendant argues that the obligation should have been terminated or the reduction more substantial and that the motion judge failed to address his contention that certain income received by him should not have been taken into account in calculating support. We affirm the order on appeal to the extent it denied the termination of alimony, but remand to the motion judge for reconsideration and further explanation of the reasons for the reduction in alimony.

I.

We discern the following facts from the record. The parties were married in 1992. Both parties were disabled during the marriage. Thomas, who was born in 1939, was in the military from 1961 to 1970, when he was honorably discharged because of service-related injuries. Although he was apparently employed by the State of New Jersey following his discharge, he was eventually determined to have a one hundred percent service-related disability in 1999. He currently receives income from a veterans disability pension, a New Jersey Public Employees Retirement System pension, and Social Security.

Thelma, who was born in 1945, became disabled shortly after the marriage, although the details are not clear from the record. It appears that she started to receive Social Security Disability benefits in 2002. She also receives alimony, as explained below. It is not clear from the record whether she also receives Social Security retirement benefits. She is on Medicare, but has additional expenses for supplemental coverage, co-pays, and similar items related to health expenses.

Thomas filed for divorce in 2002. However, to facilitate Thelma's continued eligibility for health insurance through the Veterans Administration, Thomas agreed to withdraw his complaint for divorce. Instead, the parties agreed to a consent judgment on Thelma's counterclaim for separate maintenance. The initial consent judgment, dated February 26, 2003, set forth certain positions and facts with respect to spousal support, but did not include an amount for such support because it was to be determined by the court.

14. . . . Neither party is making a claim for a distribution of retirement benefits as an asset and acknowledge that the benefits being paid to each as and for pension, disability, and social security is ongoing available income to the parties to be considered by the Court in determining the alimony issue. The plaintiff, Thomas Brown, specifically reserves his right to argue that the income being generated from his Veteran's pension should not be includable for alimony purposes. The defendant, Thelma B. Brown, specifically reserves her right to argue that the income lost to her as a result of her pension being cashed in during the marriage should be a consideration in connection with the alimony issue.

18. The parties enter into the following stipulations:

A. The income of the plaintiff, Thomas Brown, is as follows: State of New Jersey pension in the amount of $673.84 per month; Veteran's Administration Disability pension in the amount of $2,300.00 per month; and Social Security in the amount of $1,127.00 per month for total monthly net income of $4,100.84. The defendant, Thelma B. Brown, reserves her right to argue that the plaintiff, Thomas Brown, is able to generate income from his side business.

B. The income of the defendant, Thelma B. Brown, is as follows: Social Security Disability income in the amount of $1,136.00 net per month.

An amended judgment, reflecting a settlement of the support and other reserved issues, was entered on March 24, 2003. The amended judgment required Thomas to pay $1,000 per month as "permanent alimony," ...


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