October 10, 2012
PATRICIA WOMER F/K/A PATRICIA POLING, PLAINTIFF-RESPONDENT,
JACK P. POLING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-199-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2012 -
Before Judges Axelrad and Ostrer.
In this matrimonial matter, defendant Jack P. Poling appeals from the trial court's order denying his request for various forms of post-judgment relief, and the court's award to plaintiff Patricia M. Womer, his former wife, of relief on her cross-motion. We affirm in part, and reverse and remand in part.
The parties were married in June 1990 in New London, Connecticut. She was twenty-nine, and he was almost twenty-three. Defendant was employed by the U.S. Coast Guard. The parties have a daughter, born March 1991, and a son, born April 1994. The family moved from place to place following defendant's assignments. Ultimately, they resided in Dennis Township in Cape May County, while defendant was stationed at the Coast Guard Training Center.
The parties separated in 2009, and plaintiff filed a complaint for divorce in Cape May County on February 13, 2009. Defendant moved to Virginia in May 2009, after he was transferred to the Coast Guard Shore Infrastructure Logistics Center. He moved to dismiss the complaint for lack of jurisdiction, which the court denied on July 21, 2009.
Trial was held over two days in June 2010. The court entered a one-page final judgment of divorce (FJD) dated June 18, 2010, which incorporated the court's eight-page written opinion of the same date.*fn1 The FJD itself ordered the parties' cash accounts "split 50/50" with a payment to plaintiff of $7,257 in ten days; ordered $500 per week in alimony and $200 per week in child support through probation for the parties' teenage son who resided with plaintiff; and upon the sale of the marital home (which both parties had vacated by that time), ordered the proceeds be split equally, giving defendant credit for mortgage payments made before sale.
The remaining terms of the FJD must be gleaned from the written opinion. In the opinion, the court found plaintiff had established a cause of action. The court conclusorily stated, "All of the jurisdictional requirements have been met."
The court stated the only real issue at trial was support. The court imputed $30,000 in annual earnings to plaintiff, as she had earned roughly that amount as a title clerk before being laid off. The court held that defendant earned $10,416 a month, including base pay of $7,493, a housing allowance of $2,217, and a food allotment of $223. The court noted the housing and food allotments were tax-free.
After briefly reviewing the statutory factors for equitable distribution, the court concluded the "marital estate . . . should be split 50/50." The court addressed the marital home and cash accounts, but was silent about defendant's pension.
Turning to alimony, the court concluded "this is not a term alimony case." The parties had stipulated that the marital lifestyle was $5,690 a month. The judge noted that the parties' daughter lived near defendant and the parties' son lived with his mother while attending high school. The court conceded "there simply isn't enough money to go around" to replicate the marital lifestyle for both. The court concluded that the alimony of $500 a week, "after an application of the child support guidelines," would "roughly equalize the parties' net incomes" without taking into account the tax-free status of part of defendant's income.*fn2
The court addressed a tuition benefit defendant received as a Coast Guard member, in connection with the parties' obligation to support their children's college education.
Apparently that benefit can be used either for the children or for the defendant himself. Plaintiff's position was that in the event the defendant does not use it for himself that it be used for the children. That benefit if used for the children in the plaintiff's view would be considered as financial aid for the children and the parties' net college responsibilities split thereafter. The defendant's view appears to have been that assuming the benefit were used for the children that that would be part or all of his contribution. In the court's view assuming that neither of the parties is going into their pockets for a benefit that it is to be considered as a grant or scholarship and the parties' relative responsibilities for college expenses should be based upon the net obligation after application of any grants or scholarships such as this particular benefit.
As the excerpt indicates, the court did not expressly allocate responsibility for college expenses.
The court also stated it would make a "partial award of attorney fees for the plaintiff." The court ordered plaintiff's counsel to submit a certification within ten days. But, without reviewing that certification, the court ordered defendant to pay plaintiff half of those fees, whatever they were, within thirty days.
Neither the final judgment, nor the court's opinion, specifically addressed equitable distribution of defendant's pension, nor the procurement of life insurance to secure his alimony and child support obligation.
The judge invited the parties to submit written requests for clarification in the event of questions or "loose ends." No appeal was taken from the final judgment of divorce.
Sometime after entry of the final judgment, defendant retired from the Coast Guard. He said he did so to avoid involuntary separation. Defendant stated he had testified at trial that he was passed over for promotions and, in his view, faced involuntary separation "due to budget cuts and reduction in force."*fn3 Defendant stated he was passed over a second time - although the timing of that is unclear from the record. He explained, "Prior to the convening of an administrative discharge board, I retired due to the fact that I found a full time job with the federal government. I received my first retirement payment on November 1, 2010 in the amount of $4006." Defendant's new federal government annual salary was $105,211.
Shortly after defendant's retirement, plaintiff's counsel wrote to defendant in early November 2010 seeking his concurrence to entry of a consent order memorializing stipulations the parties allegedly entered on the record during the trial, but which had not been made in writing, nor memorialized in the FJD. The letter is not included in the record. However, based on defendant's counsel's reply, we infer that plaintiff claimed the parties stipulated that she would receive half of defendant's pension benefits accrued during the marriage. Plaintiff's counsel also apparently sought an order compelling defendant to obtain life insurance to secure his support obligations.
In a late November 2010 response, defendant's counsel asserted there was no agreement regarding insurance, but was willing to discuss the matter. Implicitly conceding an agreement regarding pension, counsel sought a reduction in defendant's alimony. He wrote, "Now that Mr. Poling was non-selectively retained and forced out of service there should be a deduction in his alimony payment to reflect the coverture fraction of her retirement interest."
On December 17, 2010, without formal motion, plaintiff's counsel wrote to the court to request a modification of the FJD to include the parties' alleged stipulations. She submitted a proposed form of order. Defense counsel objected.
The court conducted its own review of the record and issued a post-judgment order on January 27, 2011 that supplemented the terms of the FJD. The court found that plaintiff was to receive half of the marital portion of defendant's military retirement benefits, excluding the Thrift Savings Plan, using a coverture fraction, based on marriage between June 3, 1990 and February 13, 2009, the date of the complaint. Therefore, the court directed defendant to pay plaintiff $1,871.30 as her share of the parties' retirement accounts. Defendant was required to pay plaintiff directly her share of pension payments already received "if the military is unable to do so as the pension is currently in pay status."
The court also directed defendant to pay plaintiff $4,100 for her equitable share in the cash value of the parties' life insurance policies. The court further corrected the date of marriage reflected in the FJD to June 3, 1990. In a letter to the parties accompanying the order, the court wrote that the supplemental order was consistent with the parties' stipulations on the record at the start of trial, which he had reviewed.
Defendant did not file an appeal from the January 2011 order.*fn4
On March 10, 2011, defendant filed a motion for several forms of post-judgment relief, including: a reduction in alimony due to his retirement and subsequent job change that resulted in a reduced income; contribution for college tuition for the parties' daughter; contribution toward $8200 in sports camp fees for their son; and counsel fees. Defendant asserted he suffered a significant reduction in net income, as his new federal salary was $105,211 a year, which was all subject to income tax, as opposed to his Coast Guard salary, which included an untaxed portion allocated for housing and food. He also asserted that with receipt of her share of his pension, plaintiff's total income, including alimony, child support, and imputed income, far exceeded the marital lifestyle.
He further asserted that he had been paying for all of the parties' daughter's college expenses. Even after utilizing all his benefits available under the Post-9/11 G.I. Bill, see 38 U.S.C.A. §§ 3301-3323, including those not earmarked for education, he claimed he was responsible for over $12,000 outof-pocket. Defendant also sought a change of venue to Ocean County, where plaintiff and the parties' son lived.
Plaintiff filed a cross motion in aid of litigant's rights regarding defendant's pension payment obligation. She opposed defendant's request for an alimony reduction, noting that she had been unable to earn close to the $30,000 imputed to her. She also stated that she was not consulted about their son's sports camp and could not afford it.
In addition, plaintiff sought an order requiring defendant to purchase and maintain a life insurance policy in the amount of $550,000 to secure alimony, and life insurance policies of $100,000 for each child, until they were emancipated. She asserted, "During the trial, I believe it was prior to the actual trial starting, it had been agreed that in lieu of pursuing the Survivor Benefit Plan (SBP) for his military pension, that Defendant would purchase life insurance with a benefit of $550,000. I do not recall if this was placed on the record." In reply, defendant denied such a stipulation, but stated that he maintained $130,000 of insurance for the benefit of each child.
She also sought an order requiring defendant to provide information regarding the Post-9/11 G.I. Bill, and what college expenses were covered and in what amount. She questioned whether defendant had accurately accounted for a $1452 monthly living expense stipend for their daughter. She sought attorney's fees. She also sought an order garnishing defendant's wages from his new employer.
In a May 3, 2011 decision, the court denied defendant's motion in its entirety. The judge also ordered defendant to pay plaintiff immediately her share of his pension for November 2010 to April 2011. The court set the monthly amount due at $1,752.63,*fn5 with a sanction of $100 a day if unpaid.
Regarding the reduction of alimony, the court held that defendant's new annual income of approximately $107,000 was not "such a dramatic reduction from the $10,000 per month assumed in the memorandum of decision to warrant a modification, especially less than one year after the court's decision." The court also held that defendant retired voluntarily and "there is no evidence whatsoever that Mr. Poling had to retire other than his own self[-]serving assertions." The court held, "To the extent that he does complain that those circumstances are beyond his control, they were certainly evident at the time the court made its decision." The court also ordered defendant to purchase life insurance policies as plaintiff requested to secure his existing support obligations.
As for the parties' daughter's college expenses, the court found that defendant was "play[ing] games." The court stated, "At the time of trial the benefit available for the child's educational expenses was discussed and addressed by the court. He gives no indication as to what that benefit will pay and what it won't pay and what will be due out of pocket. Accordingly, that application is denied." The court ordered defendant to provide documentary information regarding the Post- 9/11 G.I. Bill to plaintiff. The court also denied defendant's request for contributions toward the parties' son's proposed camp expenses.
The court took note of the fact that defendant had filed a federal administrative appeal contesting the court's jurisdiction to equitably distribute his Coast Guard pension. The court found the filing to be evidence of an intent "to avoid his responsibilities." Based on defendant's efforts to "avoid compliance," the judge granted plaintiff's request for attorney's fees of $4,890.00.
The court denied the request to change venue because the marital home was still unsold and the court was familiar with the case.
Defendant presents the following points for our consideration:
The Family Part Judge committed reversible error by sanctioning Appellant $100 per day for non-compliance with his order and awarding counsel fees because the Appellant as a military member availed himself of his right for a federal administrative appeal asserting 10 USC 1408(c)(4) concerning the lack of Jurisdiction of the Family Part Court regarding the distribution of his pension.
The Family Part Judge committed error by offsetting the college expenses against the military member's GI Bill without requiring contribution from the spouse.
The Family Part Judge committed error in finding that non-selective retention of military member does not constitute a change of circumstances where the military member has a substantial reduction in income based upon new employment.
The Family Part Judge committed error by denying a venue change.
The Family Part Judge committed error in awarding insurance coverage in the amount of $550,000 to the Respondent until Appellant turns sixty-five years old.
Our standard of review is guided by well-established principles. We are required to accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it." Div. of Youth & Family Servs. v. F.M., ___ N.J. ___, ____ (2012) (slip op. at 49); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Deference is also appropriate where a Family Part judge has drawn on his or her familiarity with the long history of a case.
However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). Also, if the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
When the evidence discloses genuine material issues of fact, a family court's failure to conduct a plenary hearing to resolve those issues is a basis to reverse and remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968), superseded on other grounds, N.J.S.A. 2A:17-56.23a, as recognized in, Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995). We must always determine whether there is sufficient credible evidence in the record to support the trial court's factual determinations. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
We turn first to defendant's challenge to the court's sanction of $100 a day for as long as defendant failed to comply with the order compelling transfer of defendant's pension consistent with the court's January 2011 supplemental order.
Monetary sanctions are a proper tool to compel compliance with a court order. Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997); Franklin Twp. Bd. of Educ. v. Quakertown Educ. Ass'n, 274 N.J. Super. 47, 55-56 (App. Div. 1994). The sanctions may not be solely punitive and the judge must consider the financial situation of the parties and whether either of the parties acted in bad faith. Ridley, supra, 298 N.J. Super. at 381. Absent a showing of proper legal justification or reasonableness, intentional noncompliance with court-ordered obligations may be considered an act of "bad faith." Borzillo v. Borzillo, 259 N.J. Super. 286, 293 (Ch. Div. 1992). Abusing or misusing the judicial process to avoid obligations, and acts by a losing party that are vexatious, wanton, or carried out for oppressive reasons, can also establish bad faith. Id. at 293-94.
Defendant argues that he has a good faith basis to challenge the court's equitable distribution of his pension. He relies on the Federal Uniformed Services Former Spouse Protection Act (FUSFSPA), 10 U.S.C.A. § 1408, which empowers state courts to treat military retirement benefits as marital property subject to equitable distribution provided "the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court."*fn6 Defendant argues the court lacked jurisdiction over his pension because he was living in Cape May County only because of his assignment to the area's Coast Guard Training Center; his domicile was elsewhere; and he did not consent to the court's jurisdiction.
Simply put, defendant is too late to challenge the court's equitable
distribution of his pension. R. 2:4-1. Concededly, the court did not
order distribution of the pension in the original FJD. Arguably,
absent an order distributing the pension, defendant would have had no
reason to appeal the judgment on the grounds it was at odds with
FUSFSPA, nor to appeal the court's finding of personal jurisdiction.*fn7
There is a distinction between the court's exercise of
personal jurisdiction over defendant, which may be based on minimum
contacts, and the court's exercise of subject matter jurisdiction over
federal military retirement benefits, which is defined by the federal
statute. See, e.g., Steel v. United States, 813 F.2d 1545, 1548-49
(9th Cir. 1987); In re Marriage of Akins, 932 P.2d 863, 866-67 (Colo.
Ct. App. 1997).
However, in its January 2011 supplemental order, the court clearly exercised jurisdiction over the Coast Guard pension and ordered half the coverture portion awarded to plaintiff. According to the trial court's review of the record, defendant stipulated to the equitable distribution of his pension. Arguably, that constituted consent to jurisdiction under 10 U.S.C.A. § 1408. In any event, defendant did not appeal from the January 2011 order. Defendant is foreclosed now from collaterally questioning the order's correctness absent an appropriate motion under Rule 4:50.
Given defendant's resistance, we discern no abuse of discretion in imposing a coercive sanction to obtain defendant's compliance. In its January 2011 order, the court ordered defendant to make payments. Defendant did not seek a stay. He did not appeal. He simply refused to comply, forcing plaintiff to seek an order in aid of her rights.
Nor do we view the amount of the sanction to be unreasonable. The sanction may be in an amount "sufficient to sting and force compliance," but may not be "so excessive as to constitute ruinous punishment." Franklin Tp. Bd of Educ., supra, 274 N.J. Super. at 56 (internal quotation and citation omitted). See also Ridley, supra, 298 N.J. Super. at 381. The $100 a day sanction translates into $3000 a month. The record does not indicate that the sanction would be "ruinous."
Defendant also appeals from the court's denial of his request for plaintiff's contribution toward their daughter's college costs. He argues plaintiff should be responsible for paying half of the $12,419.59 in costs he states were not covered by his Post-9/11 G.I. Bill benefits. He also challenges the court's determination that all funds available under the Post-9/11 G.I. Bill, whether earmarked for education or not, should be allocated toward the children's education and treated as any other scholarship or grant. Plaintiff questions the alleged $12,419.59 shortfall, and challenges defendant's decision to save funds received under the Post-9/11 G.I. Bill for their son.
As we discern genuine issues of material fact, we reverse and remand for the parties to engage in reasonable discovery regarding college expenses, sources of support including defendant's benefits under the Post-9/11 G.I. Bill. The court shall make appropriate fact-findings, after a plenary hearing if necessary, regarding the contributions already made by defendant, out-of-pocket and by use of his benefits under the Post-9/11 G.I. Bill, and shall determine appropriate contributions from the parties for both children.
Defendant is entitled to both tuition assistance and a housing stipend while pursuing an education under the Post-9/11 G.I. Bill. 38 U.S.C.A. § 3313(c). Tuition benefits are paid directly to educational institutions, while housing stipends and books and supplies stipends are sent to the beneficiary. See VA Pamphlet, "Post 9/11 GI Bill It's Your Future," available at http://gibill.va.gov/documents/pamphlets/ch33_pamphlet.pdf. Defendant is authorized to transfer his benefits to eligible dependent children. 38 U.S.C.A. § 3319(c)(2). He is limited to transferring no more than thirty-six months of benefits. 38 U.S.C.A. § 3319(d). The statute prohibits treatment of the benefits as marital property subject to equitable distribution.
38 U.S.C.A. § 3319(f) ("Entitlement transferred under this section may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.").
The record reflects that defendant's tuition benefits defrayed tuition of $3356 for the fall 2010 semester at the parties' daughter's university. The daughter also received defendant's housing stipend of $1452 a month. She utilized almost five months of the thirty-six total months of benefits as of October 12, 2010.
Defendant submitted a certification that set forth actual or projected expenses incurred on behalf of his daughter totaling $32,881.83, but the amount spanned more than a two-year period between January 13, 2010 and February 1, 2012. He certified that the Post-9/11 G.I. Bill contributed $7509 directly to the daughter's university, and had paid and would pay additional benefits of $12,953.24 for the fall and spring semesters of the 2010-2011 school year. He did not explain the basis of that $12,953.24 figure. However, assuming a nine-month school year, that amount is roughly consistent with plaintiff's documented assertion that the parties' daughter receives a housing stipend of $1452 a month. Total tuition benefits of $7509 in tuition, plus nine months of housing stipends totals more than $20,000 a school year in Post-9/11 G.I. Bill benefits. However, defendant alleges expenses of $32,881.83 for two years, less than what appears to be the available Post-9/11 G.I. Bill benefits.
Defendant is defraying various expenses for his daughter, including automobile, cell-phone, and groceries. It is unclear whether those are eligible, in whole or in part, to be covered by the housing stipend. In sum, we find no basis on this record to conclude that defendant's Post-9/11 G.I. Bill benefits were insufficient to cover his daughter's education-related expenses, including tuition, room, board, books and supplies.
We also disagree with defendant that the court already determined the parties must split evenly any amounts required after accounting for Post-9/11 G.I. Bill benefits. The court's written decision that was incorporated in the FJD recites the parties' respective positions, including plaintiff's position that the parties should "split" the college costs remaining after subtracting all Post-9/11 G.I. Bill benefits that defendant did not use for himself. The court agreed that any benefits used for the children should reduce both parties' responsibility for college costs, but the court did not address the division of those costs between the parties. Nor did the court affirmatively order defendant to utilize all benefits for the children.
There is no dispute the parties' daughter is a full-time student at a four-year university. The parties also do not apparently dispute that she has an aptitude and commitment to a college education. The issue of the appropriate allocation of the parties' daughter's college expenses should be decided. In order to allocate the parties' respective obligation, the court must consider the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982):
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
The court should also be prepared to address the allocation of college expenses for the parties' son. Defendant may exhaust his Post-9/11 G.I. Bill benefits in defraying his daughter's expenses - inasmuch as he may transfer only thirty-six months of benefits. Apparently, the parties' son is near, or at college age. Given the contentiousness of the parties, and the lack of specificity in the FJD, the court should consider addressing this issue to reduce the risk that disagreement between the parties may interfere in his matriculation.
We consider next defendant's motion to reduce alimony based on a change of circumstances consisting of his retirement and reduced earnings. Alimony orders are always subject to review and modification upon a showing of changed circumstance. Lepis v. Lepis, 83 N.J. 139 (1980). The party seeking modification of support obligations has the burden of showing "changed circumstances" warranting relief. Id. at 157. A significant decrease in the supporting spouse's income is recognized as a change in circumstance. Id. at 151. However, a party's receipt of retirement income that was equitably distributed may not be considered to assess a reduced need of the supported former spouse, or increased ability to pay of the supporting former spouse. N.J.S.A. 2A:34-23(b) ("When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.").
There also is no mathematical formula for determining what circumstance is significant. See Walles v. Walles, 295 N.J. Super. 498, 510, 517-18 (App. Div. 1996) (affirming modification where payor's gross income dropped over $300,000, from a prior level of $656,000); Beck v. Beck, 239 N.J. Super. 183, 186-87 (App. Div. 1990) (finding changed circumstances where supporting spouse's income had "declined dramatically over the last several years" and showed a drop in gross income from $155,000 to $118,000 in one year, available income was reduced by children's college costs, and supported spouse's income had risen).
However, not every decrease in income justifies modification. A temporary change in a former spouse's income does not warrant modification. See Innes v. Innes, 117 N.J. 496, 504 (1990) ("Temporary circumstances are an insufficient basis for modification."). There is "no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation." Larbig v. Larbig, 384 N.J. Super. 17, 19, 23 (App. Div. 2006) (rejecting modification request filed twenty months after entry of judgment, finding that the period of time "strongly suggested defendant's reduced income had not become permanent").
Income reduction from retirement also does not necessarily require modification. Our courts have addressed the factors that a court must consider in determining whether to modify alimony because of retirement. See, e.g. Silvan v. Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993) (identifying various factors that should be considered in analyzing whether retirement justifies alimony modification); Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992) (same); Dilger v. Dilger, 242 N.J. Super. 380, 387-88 (Ch. Div. 1990) (same).
The trial court exercises broad discretion in this area. "The Legislature has left applications to modify alimony to the broad discretion of trial judges." Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). See also Larbig, supra, 384 N.J. Super. at 21 ("appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters") (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). Consequently, an appellate court may reverse only if it concludes: the trial court clearly abused its discretion, failed to consider "all of the controlling legal principles," or it must otherwise be "well satisfied that the finding[s] [were] mistaken," or that the determination could not "reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole." [Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (citations omitted) (alteration in original).]
Applying that deferential standard of review, we do not discern error in the court's exercise of discretion to deny a modification when the motion was filed. On the other hand, we are mindful of the impact of defendant's reduction in income. His gross salary has dropped by $15,000 a year, over ten percent. Moreover, he lost the benefit of receiving roughly $27,000 of income free of tax - a loss of almost $7,000, assuming a marginal bracket of twenty-five percent. It was also inappropriate for the court to discredit defendant's certified statements that he changed jobs because he faced a likely layoff at the Coast Guard, particularly given the circumstantial evidence supporting his claim, including that he was passed over for promotions. See, e.g., Conforti v. Guliadis, 128 N.J. 318, 328-29 (1992) (generally, disputed issues of fact should not be decided simply on evidence found in conflicting affidavits). Nonetheless, defendant's reduced income is of short duration. As the trial court observed, defendant filed his modification motion less than a year after entry of the FJD. It is unclear whether defendant will, relatively quickly, recover some of the ground he lost, through promotions or pay increases.
For those reasons, we shall not upset the court's decision. Our determination does not preclude defendant from renewing his request for modification if he can demonstrate that his reduction in income is permanent. At that time, of course, if the court finds a prima facie showing of changed circumstances, plaintiff would be entitled to document her alleged reduction in income and increased need, based on her inability to match the income imputed to her.
We briefly address the two remaining issues before us. We discern no basis to disturb the court's order requiring defendant to maintain life insurance to secure his alimony obligation. Trial courts are specifically authorized to order either spouse "to maintain life insurance for the protection of the former spouse" in the event of the payor spouse's death. N.J.S.A. 2A:34-25. The purpose is to assure a sufficient fund for the payor's support obligation should he die before fulfilling that responsibility. Jacobitti v. Jacobitti, 135 N.J. 571, 580 (1994).
Defendant has not alleged that he would face difficulty qualifying for insurance, or the cost of insurance would be excessive. Our decision does not preclude defendant from seeking modification of the requirement to tailor the death benefit more precisely with defendant's projected remaining obligation. Cf. Konczyk v. Konczyk, 367 N.J. Super. 551 (Ch. Div. 2003) (supported spouse receiving limited term alimony not entitled to full death benefit of insurance provided to secure alimony payment, but only an amount equal to remaining alimony obligation), aff'd, 367 N.J. Super. 512 (App. Div. 2004). On the other hand, we note that while the trial court required insurance only through age sixty-five, defendant's alimony obligation is permanent and does not automatically expire at age sixty-five, although defendant would be entitled to a hearing on a request for reduction. See, e.g., Silvan, supra, 267 N.J. Super. at 581.
Finally, we address defendant's appeal from the court's denial of a change of venue. While the court may transfer venue in post-judgment Family Part motions where both parties reside outside the county, Rule 4:3-3(a)(4), we discern no error in the court's denial. The judge's familiarity with past proceedings would assist the court in efficiently resolving future post-judgment motions.
Affirmed in part and reversed and remanded in part.