On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2574-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012
Before Judges Fuentes, Grall and Ashrafi.
Alleging long-term unemployment, defendant Thomas Foley appeals from an order of the Family Part denying his motion to reduce his alimony obligation pursuant to a judgment of divorce. We conclude that the Family Part denied ex-husband's motion under a misconception of the relevant period of unemployment.
We reverse and remand for reconsideration and potentially for an evidentiary hearing to determine whether ex-husband has proven changed circumstances in accordance with Lepis v. Lepis, 83 N.J. 139 (1980).
The parties married in 2004 and divorced in 2010. They have one child, a daughter born in 2005. During the marriage, ex-husband worked as a human resources manager in New York, with an ending salary of $94,500 (about $1,817 gross per week). At the end of May 2010, while the divorce action was pending, ex-husband was involuntarily terminated from his position, and he began collecting unemployment benefits of $405 per week. He remained unemployed at the time that a divorce trial was held resulting in a dual judgment of divorce entered on November 19, 2010.
The judgment of divorce granted the parties joint legal custody of the child, with ex-wife Jennifer Foley as the parent of primary residence and ex-husband entitled to two mid-week parenting times. Although we have not been provided transcripts from the trial or a statement of reasons for the trial judge's rulings, it appears from counsel's remarks on the post-judgment motions that the trial court concluded the five-and-a-half month period of unemployment at the time of trial was not of sufficient duration to justify limiting ex-husband's income to the amount of unemployment benefits.
The trial judge imputed income of $85,000 to ex-husband, and he was ordered to pay limited duration alimony for three years at $18,000 per year, that is, $346 per week, commencing February 1, 2011. He was also ordered to pay $50 per week in child support until February 1, 2011, at which time child support would be recalculated based upon the adjusted incomes of the parties, taking into consideration the alimony obligation and either imputed or actual income for each. Additionally, the judgment required ex-husband to pay 72% of marital debts and ex-wife to pay 28%. Ex-husband was also ordered to pay a total of $15,000 at the rate of $416.66 per month as reimbursement of attorney's fees incurred by ex-wife. Other financial considerations, such as the sale of the marital home and division of IRA and 401K accounts, were included in the judgment as equitable distribution of marital assets.
Initially, the Probation Department arranged for garnishment of ex-husband's unemployment benefits to cover the $50 per week in child support and to provide $30 per week toward the alimony obligation. As arrears accumulated, however, the Probation Department moved for enforcement of ex-husband's support obligation. In May 2011, a hearing officer determined that ex-husband had arrears of $4,604 and recommended that he pay a total of $416 per week, consisting of $50 child support, $346 alimony, and $20 toward the arrears. A Family Part judge approved the recommendation and signed an order authorizing the Probation Department to issue an arrest warrant if ex-husband missed two or more payments.
In June 2011, ex-husband filed a motion to reduce or abate his alimony payments based on changed circumstances. Ex-wife responded with a cross-motion to enforce the support payments and to adjust child support retroactive to February 1, 2011, as ordered in the judgment of divorce. Ex-husband submitted a case information statement with his motion indicating that he had earned income of $36,342 in 2010 and received unemployment benefits of $21,337, for a total income in the prior year of $57,679 (about $1,109 gross per week).
At the time of oral argument on the post-trial motions in August 2011, ex-husband and his attorney stated that he had obtained temporary employment in June 2011 at an hourly wage, but he was still netting less than $400 per week. The Probation Department had ordered garnishment of his wages from temporary employment at the rate of 65%, which together with an additional $70 per week that he was paying toward his arrears, left him with less than $120 per week for his own living expenses. He argued he could not pay his temporary housing expenses at a motel, at a long-term monthly rate of $38.41 per night, or to pay other minimal living expenses so that he could continue searching for a job. He had applied for food stamps in January 2011. He also stated he had been diagnosed with ataxia, which according to his doctor, "would interfere with his work as he cannot ambulate well."*fn1 Furthermore, he suffered from panic attacks as a result of the stress of divorce and threats from the Probation Department to have him arrested. He claimed he had paid $169.72 per month for COBRA insurance coverage that increased to $443.50 per month and that he has an additional $80 of monthly medical expenses.
Ex-husband asserted he had made good faith efforts to find permanent employment. He applied for approximately 200 jobs by email, with 187 of those applications submitted through an employment website. He provided documentary evidence of rejections from several positions after interviewing for those jobs.
Ex-wife had moved with the child to her parents' home. She was employed as a phlebotomist at wages of $18 per hour, thirty-five hours per week. She stated her parents were paying for her attorney's expenses but should not be ...