On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-22264-90C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Hayden.
In this post-judgment matrimonial matter, defendant Fredric Goulden appeals provisions of the Family Court order dated August 27, 2010, denying his motion to modify or terminate alimony payments to plaintiff Sue Goulden. For the reasons that follow, we reverse and remand.
The record reflects that plaintiff and defendant were married on August 13, 1972. They have three children, now emancipated. The parties obtained a dual judgment of divorce on April 28, 1993, which incorporated their property settlement agreement (PSA). The agreement provided permanent alimony of $400 a week to plaintiff for five years, and $300 a week thereafter. At the time of the agreement defendant owned his own business and earned approximately $90,000 per year. In discussing alimony, the PSA states in pertinent part:
The husband specifically acknowledges and agrees that he shall NOT be entitled to a reduction as a result of wife's employment which has been anticipated in the resolution of this issue. Likewise, the wife shall not have the right to seek any increase in support in the event that she does not generate the income that was contemplated by the parties at the time they reached this accord.
In 1999, defendant sold his business and worked as a consultant to the new owner for a few years. He also filed a motion for modification of alimony and child support, based upon an allegation of changed circumstances. After an extensive discovery period, defendant withdrew his motion due to his new employment and the cost of litigation. In 2005, defendant and his new wife moved to Florida and currently live in Boca Raton.
In July 2009, defendant again filed a motion to reduce his alimony obligation based on changed financial circumstances. Defendant also requested the trial judge to order plaintiff to disclose her current finances and schedule a plenary hearing. He reported in his Case Information Statement (CIS) that he had only earned $60,000 in 2008. In explaining the decreased income, defendant asserted that "business is bad," and that he did not always get paid. He also alleged that plaintiff must have received a "financial windfall" because she bought an expensive home worth $600,000. He certified that there must have been a significant improvement in her lifestyle but he did not know the extent or the source.
Plaintiff opposed defendant's motion. She acknowledged receiving a modest inheritance when her father died in 2004, just as defendant had received when his parents died. She stated that she had used the inheritance, the proceeds from the sale of her home and her savings to buy a home in a secure retirement community. She pointed out that she was a disabled brain cancer survivor who was living on disability payments and savings, and she needed the alimony.
On October 29, 2009, the judge denied defendant's motion. The judge noted that defendant's CIS showed that, when unearned income was included, he had a total income in 2008 of approximately $79,000. Finding that defendant's current income was not significantly less than his income at the time of the divorce, the judge held that defendant had failed to establish a prima facie case of changed circumstances. Furthermore, the judge found defendant's assertion that plaintiff was financially well off was not relevant to the issue of defendant's changed circumstances. Based on the parties' agreement in the PSA that plaintiff's employment income would not be used to modify the alimony payment, the judge found that plaintiff's financial good fortune could not be considered to establish changed circumstances. Defendant did not appeal this order.
In August 2010, defendant filed again for a reduction or termination of alimony, an order compelling plaintiff to disclose her finances, and counsel fees and costs. Defendant provided his current CIS, which showed $40,203 in earned income and $21,049 in unearned income in 2009. He also asserted that in 2010 he had earned $13,100 as of June 30, 2010. He stated that the company he worked for was failing but he doubted any other business would hire him as he was sixty-four years old. He also reported that he had health issues, including coronary artery disease, high blood pressure and a recent diagnosis of prostate cancer. He also certified that plaintiff had come into a recent inheritance of about one million dollars.
Plaintiff opposed defendant's motion and also sought counsel fees. She stated that only by selling her home and her parents' home, was she able to buy the home where she currently resides. She questioned the veracity of defendant's alleged low income and pointed out that the company he worked for was half owned by his wife and operated out of his home. Plaintiff stated that defendant's ...