October 18, 2010
JANE C. MARMO, PLAINTIFF-RESPONDENT,
CHRISTOPHER P. MARMO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-171-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010
Before Judges Skillman and Espinosa.
This is an appeal from a post-judgment order in a matrimonial action. The parties were divorced in December 2005. Before their divorce, the parties entered into a property settlement agreement under which defendant agreed, among other things, to pay plaintiff $36,500 per year in permanent alimony and approximately $14,000 per year in child support.
During the marriage, defendant had been earning approximately $140,000 per year as an optometrist in his own private practice in New Jersey. Around the time of the divorce, defendant sold his optometry practice and moved to Arizona, where he became employed as an optometrist by Nationwide Vision Center. Defendant alleges that he was misled by Nationwide into believing that he was going to earn $120,000 per year after moving to Arizona, but that his actual adjusted income for 2008 was only $106,338.
Defendant filed a motion for a reduction of his alimony obligation in early 2008 based on the reduction in his income between 2005, when the property settlement agreement was entered into, and 2008. The trial court denied this motion. The parties filed cross-motions in the spring of 2008 relating to defendant's child support obligations and the parties' respective obligations for the costs of their children's college educations. These motions resulted in the entry of orders that substantially reduced defendant's child support obligations, but required him to pay 59% of the children's college education expenses.
On July 23, 2009, defendant was terminated from his employment with Nationwide. Less than a month later, on August 14, 2009, defendant filed a motion for the termination or reduction in his alimony and child support obligations including college education expenses. Defendant's motion was based primarily on the termination of his employment.
The trial court denied defendant's motion, except that it temporarily reduced his alimony obligation to $1500 per month for the period from August 17, 2009 to March 1, 2010. In an order entered on September 29, 2009, the court gave the following reasons for granting only this limited relief with respect to alimony:
Defendant has by his own admission only been unemployed since July 23, 2009, the effective date of his termination by Nationwide Vision. Two months of unemployment is typically not considered to be a long-term or permanent change of circumstances. However, the current economic recession has changed the prospects of re-employment. Defendant certifies that he has made every effort to scour the Phoenix area looking for work in his field, but has found no available opportunities. . . .
Neither party disputes that the recent termination of Defendant's employment with Nationwide has dramatically reduced his income.
However, Defendant has taken steps to mitigate his loss of income by starting his own practice in a colleague's facilities. The court finds that Defendant, who is receiving unemployment and will take some time to build up a practice, has shown a substantial basis for a reduction of alimony, but the burden should be his to demonstrate that his financial downturn persists.
Defendant appeals from the part of the September 29, 2009 order that denied him any additional relief from his support obligations. Plaintiff did not file a cross-appeal from the part of the order that temporarily reduced defendant's obligation for the payment of alimony.
On appeal, defendant presents the following arguments:
I. CLAIMANT HAS SUCCESSFULLY PROVEN A CHANGE IN CIRCUMSTANCES AND THE COURT ERRED IN DENYING HIS MOTION TO ELIMINATE ALIMONY.
II. CLAIMANT HAS SUCCESSFULLY PROVEN A CHANGE IN CIRCUMSTANCES AND THE COURT ERRED IN DENYING HIS MOTION TO ELIMINATE CHILD SUPPORT WITH REGARD TO HIS DAUGHTER, PAIGE MARMO.
III. THE COURT ERRED IN DENYING CLAIMANT'S MOTION TO ELIMINATE COLLEGE FUNDING WITH REGARD TO HIS DAUGHTER, PAIGE MARMO.
We reject the arguments presented under Point I of defendant's brief substantially for the reasons set forth in the trial court's September 29, 2009 order. The court did not abuse its discretion in concluding that defendant's unemployment and consequent reduction in income had not persisted for a sufficiently long time to warrant the conclusion that his reduction in income was permanent. Defendant had been unemployed for less than a month when he filed the motion and for only approximately two months when the trial court heard the motion. Such temporary unemployment does not ordinarily warrant a finding of a permanent reduction of income. See Donnelly v. Donnelly, 405 N.J. Super. 117, 127-31 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 21-23 (App. Div. 2006). If defendant's reduction in income persists, he may at that time renew his motion. If such a motion is filed, the court should also give additional consideration to plaintiff's employment status and ability to obtain more lucrative employment.
We also reject defendant's argument regarding his obligation to pay child support for his daughter Paige and a portion of her college expenses, as set forth under Points II and III of his brief, substantially for the reasons set forth in the order of the trial court. We note that defendant's statements in his appellate brief regarding his relationship with his daughter are not supported by the evidence presented in support of the motion that resulted in entry of the September 29, 2009 order.
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