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Elaine J. Barton v. Richard Barton

May 24, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-446-94.

Per curiam.


Argued April 16, 2012 -

Before Judges Grall and Alvarez.

This is an appeal and cross-appeal from post-judgment orders concerning alimony and the obligation to secure it. The judge reduced defendant Richard Barton's alimony obligation from $800 to $550 per week and modified his obligation to secure alimony payment with a $400,000 life insurance policy by providing a lien against his estate in that amount, which defendant could reduce by $20,000 annually. Defendant contends that the court should have terminated these obligations, and plaintiff Elaine J. Barton contends that the court should have denied all relief and granted her request for counsel fees. We affirm.

The Bartons married in 1966, and they have two children who had both reached the age of majority when the parties separated in 1993. They divorced in 1996, and are now both about seventy years old.

The final judgment incorporates the Bartons' agreement on equitable distribution, but the question of alimony was tried to the court. At that time, the court found that plaintiff could earn between $15,000 and $20,000 per year and that defendant earned $125,000. The judge required defendant to pay $800 weekly alimony and maintain a $400,000 life insurance policy naming plaintiff as the beneficiary, noting that defendant could move for modification of the amount after five years.

Defendant is a lawyer, and throughout his career he specialized in workers' compensation defense. At the time of the divorce, defendant was a partner in a law firm, a position he held until he became an employee of the firm in 2008.

Defendant earned $125,000 a year from 2008 until January 2011, according to a letter from the firm addressed to defendant. During the first half of 2011, defendant's salary was $2000 per week, and for the second half of that year it was $1000 per week. In addition to salary, the firm paid for defendant's car insurance and lease and his medical insurance. The letter also states that defendant's employment with the firm would terminate as of January 1, 2012, a date about two months after defendant's sixty-ninth birthday.

Defendant was sixty-eight when he filed his motion to terminate or reduce his alimony obligation and eliminate his obligation to maintain a $400,000 life insurance policy. For over a year, he had been seeing a psychiatrist, who had advised him to discontinue his trial practice due to his panic attacks. In his doctor's opinion, defendant's prognosis was "guarded due to continuous work related stress." Defendant also presented a report from a vocational expert. In his opinion, defendant's age, specialized experience and present condition were "overwhelming" obstacles to his finding "alternative work activity as an attorney" and the probability of defendant's obtaining such work was "statistically inconsequential."

With his motion, defendant also provided information in support of his request to terminate life insurance for plaintiff's benefit. He had received notice from the insurer indicating that the cost would be raised from $2500 to $25,719 annually and invited him to consider alternatives.

After leaving the firm, defendant's monthly income was $2806 - a $1850 social security benefit, a $876 monthly mortgage payment from his former firm, and $80 interest. He had assets worth about $1,651,000*fn1 - a $200,000 home, a $4000 car, a $70,000 airplane, $272,000 in bank accounts, $720,000 in retirement accounts, and $385,000 in an investment account. He also had a stockholder interest in his former law firm with a value that had not been determined, but he anticipated receiving $240,000 if the firm could afford to pay him.

Defendant reported a monthly budget of $7069, $84,828 annually. It includes the following: $2205 for housing, $1174 for transportation and $3690 for personal expenses, which includes $400 for restaurants, $400 for vacations, $800 for sports and hobbies and $100 for additional savings. It does not include alimony payments or income taxes. At that rate of spending, defendant's expenses would exceed his gross income by about $92,756 annually with a $800 weekly alimony obligation and by about $51,156 without any alimony obligation.

Plaintiff was sixty-nine years old when she responded to defendant's motion. She too had left the workforce. She had earned about $13,000 annually working part-time until 2008, when her employer laid her off. Her monthly social security benefit was $830, and her health did not permit her to work. She listed assets with a total value of $806,500: a $245,000 home, a car worth $17,500, $17,000 in bank accounts, $170,000 in various IRAs, and retirement accounts worth $357,000. She reported a monthly budget of $5397, $64,764 per year. The budget ...

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