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Freda D. Plessinger, N/K/A Freda A. Diggs v. Albert J. Plessinger


July 27, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0086-03.

Per curiam.


Argued May 9, 2012

Before Judges Fuentes, Graves, and Koblitz.

The parties were married on June 15, 1983. Their judgment of divorce, which incorporated a property settlement agreement (PSA), was entered on June 12, 2003. No children were born of the marriage. Defendant Albert Plessinger appeals from two orders dated June 24, 2011. One order denied his application to modify his alimony and life insurance obligations based on changed circumstances or, in the alternative, to schedule a plenary hearing; the second order granted a motion by plaintiff Freda Diggs to enforce litigant's rights. Defendant also appeals from judgments entered against him for unpaid support arrears on July 13, 2011, and July 15, 2011. We reverse and remand for further proceedings.

The parties' PSA requires defendant to pay permanent alimony "in the amount of $135,000 per year, by way of equal monthly payments in the amount of $11,250 to be made on the first day of each month, commencing June 1, 2003, and continuing each month thereafter." As noted in the PSA, the alimony figure was based on defendant's gross income of "approximately $400,000 per annum" and an imputed income to plaintiff of $35,000 per annum. To secure defendant's alimony obligation, the parties further agreed as follows:

Husband shall maintain at least $413,000 worth of life insurance coverage as supplied through his employment, insuring his life, for the benefit of Wife, so long as he has an alimony obligation to her. In the event husband's employment no longer provides him with the aforementioned level of life insurance coverage, then husband shall pledge other assets, sufficient to address his life insurance obligation.

In May 2010, defendant filed a motion to modify or terminate his alimony and life insurance obligations. In a supporting certification, defendant stated he had back surgery in 1975, "two additional surgical procedures" in 1990 when his back pain returned, and "a recurrence of serious back pain" in 2004. According to defendant, he accepted a voluntary early retirement package from Honeywell in 2004, and he moved from New Jersey to Arizona with the intention of "getting the rest [his] physicians were recommending and resuming [his] career in a warmer climate." Defendant submitted various medical reports to substantiate his medical problems, and he attached copies of his 2008 and 2009 tax returns to his case information statement.

Defendant certified he began searching for a job in 2007, and he "applied for more than 300 employment positions" without "so much as a first interview." Defendant also stated that his only income, in the amount of $3,913 per month, was derived from his portion of his pension, which had been equitably distributed. In addition, defendant claimed he "exhausted all savings and retirement assets," and he had "no other assets to liquidate to remain current on [his] obligation."

Plaintiff opposed defendant's motion. In an oral decision on June 11, 2010, the court denied the motion because defendant voluntarily discontinued "a significant employment," and he did not demonstrate a sufficient change in circumstances to modify or terminate alimony. Nevertheless, the court ruled there would be "a forbearance of enforcement" of defendant's alimony payment for a period of sixty days to afford defendant an opportunity "to obtain gainful employment."

In August 2010, defendant accepted a position as Manager of Information Technology Operations with AAA Northern California, Nevada, and Utah. Defendant's starting salary was $120,000 per year. However, he was promoted in March 2011, and his salary increased to $160,000 per year. In addition, he received a car allowance of $850 per month. After he obtained employment, defendant increased the amount of alimony he was paying but did not pay the full amount required by the PSA.

On May 16, 2011, plaintiff filed a motion to hold defendant in violation of litigant's rights for "willful noncompliance with his support obligation." In her supporting certification, plaintiff stated "defendant's arrears total $119,750.00 and he has made it clear that he has no intentions of complying with [the PSA]." Plaintiff stated defendant was paying less than half of his alimony obligation, and she also alleged defendant's "new found employment" confirmed that his prior application to modify or reduce his support obligation was filed in bad faith:

There is no excuse for defendant's continued non-compliance, especially considering the fact that shortly after this Court's 2010 orders directing defendant to continue payment of his alimony obligation in the amount of $11,250.00 per month, defendant immediately obtained a "consulting job." Yet, defendant's new found employment speaks volumes as to the bad faith nature and misrepresentations advanced by defendant in support of his prior application for modification/termination of his support obligation. In short, defendant's financial setting is nothing more than [a] self-created sham to try to avoid/reduce his continued payment of support to me. [(Emphasis in original.)]

Defendant opposed plaintiff's enforcement motion and filed a cross-motion to modify his alimony and life insurance obligations retroactive to August 1, 2010, based upon a change in circumstances. In the alternative, defendant asked the court to schedule a plenary hearing to determine the issue. In his supporting certification, defendant stated plaintiff was "well aware" of the back pain and discomfort that ultimately led to his retirement because his back problems "plagued [him] most of [his] adult life." Plaintiff also stated his sole source of income was from his employment with AAA, and he certified he had been paying plaintiff $5000 per month once he became employed by AAA. In addition, defendant certified as follows:

I am sixty-three (63) years old, and I thank God every day that I was able to secure a position with AAA. I am not foolish enough to believe that, if I lost my job with AAA, I would be able to secure other employment at my age.

I have no assets to sell and/or liquidate to meet my obligation. I have already liquidated every asset that I received through equitable distribution and inheritance in paying more than $900,000 in alimony between January 1, 2004 and March 2010 when I began falling behind on my alimony obligation.

As it stands today, I could provide Plaintiff with 100% of every penny I earn until I am sixty-eight (68) years old and I would only then be back to even with Plaintiff continuing to receive nearly 80% of my income.

Following oral argument on June 24, 2011, the court granted plaintiff's enforcement motion and denied defendant's cross-motion to modify his support obligation or to schedule a plenary hearing. With respect to defendant's cross-motion, the court stated: "I can't get past him quitting . . . I can't get past it. . . . [I]t doesn't make any sense at all." Ultimately, the court concluded it would not "be doing [its] job if [it] didn't uphold the agreement of the parties."

The party seeking to modify an alimony or child support obligation "has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1956)). When a supporting spouse, such as defendant, seeks to reduce his alimony payment, he must demonstrate that changed circumstances have substantially impaired his ability to support himself. Ibid.; see also Miller v. Miller, 160 N.J. 408, 420 (1999) ("In an application brought by a supporting spouse for a downward modification . . . the central issue is the supporting spouse's ability to pay."). Furthermore, defendant's voluntary decision to accept early retirement does not automatically disqualify him from receiving relief. See Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992) (noting that the court must examine the individual circumstances of each case to determine whether the voluntary act was reasonable); see also Storey v. Storey, 373 N.J. Super. 464, 470-71 (App. Div. 2004) (noting the various factors a court should consider when "evaluating the 'reasonableness' and 'relative advantages' of an early retirement"); Sylvan v. Sylvan, 267 N.J. Super. 578, 581-82 (App. Div. 1993) ("An individual whose retirement was medically mandated even before age sixty-five may well stand on a different footing than one who voluntarily retired.").

In the present matter, we are satisfied the trial court should not have summarily rejected defendant's application to modify his alimony and life insurance obligations. Although the parties dispute defendant's reasons for leaving his employment at Honeywell, it is clear that he satisfied his support obligation for more than six years and there has been a substantial reduction in his income. Under these circumstances, we are satisfied defendant established a prima facie case of changed circumstances.

In view of the foregoing, the orders under review are reversed and the matter is remanded for such discovery as the trial court deems appropriate and a plenary hearing to determine whether defendant's alimony and life insurance obligations should be modified. If defendant is entitled to a modification of his support obligation, the court must also determine whether the reduction should be retroactive to some earlier date.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.


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