On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-806-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Simonelli.
Defendant Ronald Weaver appeals from the January 12, 2010 Family Part order denying his motion to terminate permanent alimony based on changed circumstances, and granting the cross-motion of plaintiff Mehrvash Weaver to temporarily modify alimony. We affirm.
The parties were married on April 20, 1979, and divorced on December 12, 2002. Their Property Settlement Agreement (PSA), which was incorporated into the final judgment of divorce, required defendant to pay $2900 per month for permanent monthly alimony for thirty-six months and $2800 per month thereafter. The parties based the alimony amount on plaintiff having and anticipating no gross earned income in excess of $10,000 per year and defendant earning a yearly $90,000 gross income with eligibility for bonus income.*fn1 At the time of the divorce, plaintiff was sixty-two years old and defendant was fifty-two.
The PSA also contained the following provisions:
6. Husband's alimony obligation as set forth herein shall continue until such time as either party dies, Wife remarries and/or an Order of the Superior Court of New Jersey suspends or terminates alimony consistent with the existing New Jersey case and statutory law respecting the issue of alimony.
9. Husband and Wife mutually waive any rights he/she may have under the Lepis decision to later argue that such subsequent change in circumstances rendered the amount of alimony either unfair or inequitable.
10. Husband and Wife each acknowledge that the case of Crews v. Crews has been explained to them and further acknowledge that neither will be able to maintain a lifestyle reasonably comparable to that which they enjoyed during their marriage. Notwithstanding that fact, each party is willing to accept the terms of the within Agreement and waive any right either may have to make a future application to increase support based on lifestyle.
The parties equally divided approximately $200,000 from the net proceeds of the sale of the marital home, and plaintiff received an additional $39,000 from defendant's share. The PSA also required the sale of a timeshare property located in Pennsylvania and the equal division of the net proceeds between the parties.*fn2 Plaintiff also received $213,000 from defendant's retirement benefits. Thus, plaintiff received approximately $352,000 in equitable distribution, not including the Pennsylvania timeshare, which had not yet been sold.
Defendant became unemployed in October 2007. He received $26,085 in unemployment benefits in 2008. He claimed he began depleting other assets to pay plaintiff's alimony. In December 2008, defendant filed a motion to modify alimony. By order dated February 6, 2009, the trial judge temporarily reduced alimony to $1400 monthly, effective February 6, 2009, and ordered its reinstatement to $2800 monthly when defendant obtained employment.
In August 2009, defendant obtained employment with an annual salary of $60,000. Thereafter, pursuant to the February 6, 2009 order, the $2800 monthly alimony payment was reinstated. Relying on paragraph 6 of the PSA, in October 2009, defendant filed a motion to terminate alimony. He argued his financial circumstances had changed because his new annual income is $60,000, or less than one-half of his previous income, and his net worth was $88,954. Conversely, plaintiff's circumstances had improved "dramatically" in that she owns a home worth $250,000 with no mortgage, and has a $250,000 retirement account, making her net worth $500,000.
Plaintiff filed a cross-motion to temporarily modify alimony to $1867 monthly, effective the date of the filing of defendant's motion and until he obtained employment with a minimum $90,000 annual salary. Plaintiff certified that despite her entitlement to a greater amount of alimony, she agreed to the lesser amount because it would be permanent, that is, until she died or remarried. Also, she did not seek an increase in alimony when defendant's gross income increased to $145,656 in 2007; she was almost seventy years old, in poor health, had never worked, ...