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Butera v. Toy

November 16, 2010

VIRGINIA BUTERA, PLAINTIFF-APPELLANT,
v.
TIMOTHY MICHAEL TOY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1097-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2010

Before Judges R. B. Coleman and J. N. Harris.

Plaintiff Virginia Butera appeals from a February 5, 2010 order granting a downward modification of defendant Timothy Toy's obligation to pay Butera permanent alimony. Based upon our review of the record, the arguments advanced and the applicable law, we reverse and remand for discovery and a plenary hearing.

I.

The parties were married on August 23, 1980, and have one child, born February 21, 1987. They were divorced by Final Judgment of Divorce entered on August 4, 1999. That Final Judgment of Divorce incorporated a Property Settlement Agreement (PSA) which provided, in pertinent part, for defendant to pay alimony to plaintiff at the rate of $45,000 per year from January 1, 1999 through December 31, 2004, then at a rate of $75,000 per year commencing January 1, 2005. The PSA specified that the level of alimony payable to plaintiff was based upon an income level for defendant of $350,000 per year and an imputed income of $20,000 per year for plaintiff.

Defendant worked as an attorney with a major New York City law firm, earning approximately $425,000 in 1998 near the time of the divorce proceedings. Following the parties' divorce, in June 2005, defendant left that law firm and started working with a Houston, Texas based firm to assist it in establishing a New York office. In that capacity, defendant earned an annual income of approximately $743,000 for 2006, 2007 and 2008.

Plaintiff is now a tenured associate professor, Chair of the Art and Music Departments, and Director of an Art Gallery at the College of St. Elizabeth. She earned approximately $56,000 total in 2008. During the marriage, plaintiff stayed at home with virtually no income from 1982 until 1997. Her total earnings over the subsequent ten years, 1998-2008, was approximately $384,000.

In early 2009, defendant sent notice to plaintiff by electronic mail indicating that his contract with his law firm would be terminated by June 2009, and that he had no prospects of future employment. He informed plaintiff that he would likely be earning insufficient income to pay the support due and owing to her, until he has an income again. In June 2009, defendant signed a six-month lease on space to establish his own law firm as a sole practitioner. Defendant unilaterally stopped paying his alimony obligations.

II.

On September 29, 2009, defendant filed a pro se notice of motion in the Chancery Division, Family Part, seeking, among other relief, to terminate his obligation to pay alimony effective October 1, 2009. At the time, defendant was two months in arrears for alimony. His motion was based on an alleged change of circumstances as to plaintiff and as to himself since the entry of the final Judgment of Divorce.

Plaintiff filed a cross-motion asking that defendant's motion be denied, that arrearages be entered as a judgment and paid; that proof of life insurance be provided; and that she be awarded counsel fees.

On December 4, 2009, the Family Part judge who heard oral arguments entered an order that (1) denied defendant's motion to terminate alimony without prejudice; (2) ordered the parties to attend mediation with the judge's law clerk; (3) denied plaintiff's request for counsel fees without prejudice; (4) ordered defendant to continue paying life insurance premiums as required by the parties' previous agreement; and (5) ordered defendant to submit to the court and opposing party, a "full and complete" Case Information Statement (CIS) by December 18, 2009. The order also noted that defendant's motion to terminate alimony could be renewed if the mediation failed.

The parties attended mediation on January 12, 2010, but an agreement was not reached. The parties mediated again on January 27, 2010, again without success. Thereafter, defendant refiled his motion, which led to the court's February 5, 2010 order. In that order, the court memorialized its determination that defendant had "undergone a bona fide change of circumstances." Accordingly, the court granted a reduction in alimony from the $75,000 per year or a rate of $6,250 per month established by the original PSA to $1,400 a month, retroactive to September 30, 2009. The order recited that plaintiff "is free to make a motion with respect to this alimony at any time she feels there is a basis and certainly after she has received the information contained in paragraph two," which required defendant to "produce a complete picture of his net worth and his 2010 tax returns to plaintiff on February 5, 2011." The order denied that portion of defendant's motion that sought to terminate life ...


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