On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1122-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 16, 2012 -
Before Judges Axelrad and Sapp-Peterson.
In this post-judgment matrimonial matter, plaintiff husband appeals from a Family Part order denying his motion to terminate or reduce alimony and awarding counsel fees to wife. Husband had asserted a material mistake of law, R. 4:50-l, and changed circumstances. He renews these arguments on appeal, additionally contending the changed circumstances warranted a plenary hearing. We affirm in part and remand in part.
Robert Maybury (husband) and defendant Joean Maybury (wife) were married in l994, and had four children. Wife has a son, Ryan, born in 1988, from a prior marriage. The parties were divorced on April 9, 2011, which judgment incorporated their property settlement agreement (PSA). The PSA obligated husband to pay wife alimony of $575 per week.
On or about February 17, 2011, husband filed a motion requesting, among other things, that the court terminate or modify his alimony obligations and award him counsel fees. Wife filed a cross-motion in opposition and requested counsel fees. Following oral argument on March 25, 2011, the court denied husband's motion and awarded wife $840 in counsel fees, memorialized in a written opinion and order of the same date. This appeal ensued.
On appeal, husband argues the trial court misapplied the standard of review and erred as a matter of law in denying his motion. Husband contends he established a prima facie showing of changed circumstances and the court disregarded wife's change in economic circumstances, and that the alimony terms are no longer fair and equitable to him as he can no longer maintain his former standard of living. Husband also contends the court abused its discretion in the counsel fee award and failed to apply the requisite factors.
Husband and wife were married for fourteen years. Husband certified that during the marriage he was employed at the Mt. Holly Municipal Utilities Authority (MUA) and served as a committee person for Westampton Township. According to husband's Case Information Sheet (CIS) dated October 15, 2008, his gross income was $94,404 in 2007, and his net annual income was $79,199.84. He listed his weekly deductions at $365.20 and net average weekly income at $1450.26. In addition, husband reported the receipt of $71.15 per week gross, $64 per week net, from his political office, raising his total annual income to about $98,104 gross, $82,528 net. Husband's reported monthly expenses totaled $4769.68.
Wife certified that, during their marriage, she served exclusively as the homemaker and primary caretaker of the children while husband worked full-time. She also noted she became disabled during the marriage and qualified for Social Security Disability. According to the 2008 CIS, wife's gross income from these benefits in 2007 was $8538, and her net income was $6707.
The parties executed the PSA, both represented by counsel. The PSA noted the final accepted agreement was the parties' fifth draft. The PSA provided the parties were to share joint legal custody of the children born of the marriage, with wife as the parent of primary residence. Husband was obligated to pay wife $309 per week in child support, effective upon the sale of their marital home. The PSA's income assumptions underlying this amount were contained in the child support guidelines worksheet attached to it.
Husband was also obligated to pay $575 per week in alimony, effective upon the sale of the marital home. These obligations were "based upon Husband's gross annual income of $103,000 and Wife's benefits from the Social Security Administration in the amount of $8,064 as of 2008." The PSA provided these alimony obligations were taxable to wife and deductible to husband. The PSA also reflected that "[h]usband maintains various retirement account[s], including a PERS, 457 Plan, and a Deferred Compensation Plan[,]" which net value would be evenly divided between the parties.
In February 2011, husband filed a motion in the Family Part requesting, in part, termination or modification of his alimony obligation based on either or both mutual mistake under Rule 4:50-1, and changed circumstances, and modification of his child support obligations based upon a "material mistake of law."*fn1 Husband certified that under the PSA his child support and alimony ...