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Marian Parish v. Melvin Parish

June 14, 2012

MARIAN PARISH, PLAINTIFF-RESPONDENT,
v.
MELVIN PARISH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-667-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2012

Before Judges Ashrafi and Fasciale.

In this post-judgment matrimonial matter, defendant-ex-husband appeals from orders denying his motion for review of his alimony obligation and his motion for reconsideration. We reverse and remand for a plenary hearing.

The parties were married for almost ten years. They were divorced in November 2001. At the time of the divorce, husband was fifty-eight years old and wife was almost forty-seven years old. A property settlement agreement negotiated with the assistance of attorneys was incorporated into the judgment of divorce. It provided for equitable distribution of marital assets, including a fifty percent transfer of the marital portion of the husband's pension rights and 401(k) account to the wife and her right to keep the entirety of her own pension and bank accounts. Husband, in turn, retained the marital residence and agreed to pay all outstanding debts associated with the house.

By paragraph 3.1 of the agreement, husband agreed to pay $365 per week to wife in alimony. The same paragraph designated husband's income at that time as $6,265 gross per month and wife's income from a disability pension as $1,880 gross per month. The last sentence of the paragraph stated: "This alimony award shall be reviewable in seven (7) years."

Paragraph 3.1.5 of the agreement, entitled "Early Retirement," addressed the possibility that the husband could be offered an early retirement plan by his employer in lieu of involuntary termination. It provided that husband's acceptance of such an offer would not be considered a voluntary reduction of pay but also would not automatically warrant reduction of his alimony obligation.

Husband did not retire early from his employment. He retired at the end of 2009, after he reached sixty-five years old, and his income decreased to $3,720 per month. In October 2010, he filed a motion under paragraph 3.1 of the property settlement agreement for review and recalculation of his alimony obligation.

In a supporting certification, husband stated that the parties had anticipated at the time of the divorce that he would retire at sixty-five years old. He referred to his deteriorating medical conditions - cataracts that made it difficult for him to see a computer screen, high blood pressure, and diabetes. He stated he had already paid alimony to wife for a term longer than the time of the marriage, and he could no longer afford to pay it. He stated he was forced to use the equity in his home to borrow money for alimony and his own expenses.

The trial court heard argument and denied husband's motion without holding an evidentiary hearing. In a written decision, the court concluded that husband had not shown a prima facie case of changed circumstances in accordance with Lepis v. Lepis, 83 N.J. 139, 157-59 (1980), or justification for reduced income by retirement in accordance with Deegan v. Deegan, 254 N.J. Super. 350, 357-59 (App. Div. 1992). After the trial court denied husband's motion for reconsideration by an order dated April 1, 2011, husband filed this appeal.

We acknowledge that the Family Part is granted broad discretion in awarding financial support in a matrimonial action, including whether the amount of alimony should be modified. Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). The Family Part's conclusions on a motion to modify alimony are not disturbed on appeal unless the court has made an error of law, Avery v. Avery, 209 N.J. Super. 155, 163 (App. Div. 1986), or the court's ruling is "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[,]'" Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Here, the dispute involves construction and application of the parties' agreement, specifically, the meaning of the last sentence of paragraph 3.1: "This alimony award shall be reviewable in seven (7) years." The narrow question before us is whether husband was required as a matter of law, despite that provision, to show changed circumstances under Lepis, supra, 83 N.J. at 157-59, to be entitled to a post-judgment hearing to determine whether his alimony obligation should be reduced. We hold that the agreement could supersede the Lepis requirement of making a prima facie showing of changed circumstances, and that the proper interpretation of paragraph 3.1 required an evidentiary hearing to confirm the intent of the parties.

The trial court reasoned that because the property settlement agreement did not state expressly that husband intended to retire at age sixty-five, the seven-year review under paragraph 3.1 still required that he show changed circumstances to warrant a plenary hearing and potential modification of alimony. Based on the parties' written submissions on the motion, the trial court concluded that husband had not shown justification for retiring and thus reducing his income as he was required to do under the holding of Deegan, supra, 254 N.J. Super. at 358. The court ...


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