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Kathleen Hendrickson v. Mark Hendrickson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 5, 2012

KATHLEEN HENDRICKSON, PLAINTIFF-RESPONDENT,
v.
MARK HENDRICKSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1946-04B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2012

Before Judges Fisher and Alvarez.

Defendant Mark Hendrickson appeals post-judgment matrimonial orders which denied his motion to terminate his limited duration alimony obligation to plaintiff Kathleen Hendrickson. For reasons somewhat different from those provided by the motion judge, we conclude that defendant's retirement from his place of employment was an insufficient ground for a cessation of his alimony obligation and affirm.

The parties were married in 1992. At the time of the 2006 divorce judgment, Mark was fifty-six and Kathleen was fifty years old. The divorce judgment incorporated a property settlement agreement (PSA), which, as relevant here: required Mark to pay to Kathleen limited duration alimony of $265 per week for eight years; designated Mark the primary residential custodian of their only child, who was born in 1992, with Kathleen retaining visitation rights; and reduced Mark's alimony obligation by $145 per week, an amount that represented Kathleen's child support obligation.

On October 7, 2011, Mark moved for, among other things not presently relevant, termination of his alimony obligation based on changed circumstances and the recalculation of Kathleen's child support obligation based on their current incomes. Mark asserted he had been employed, by the time of the divorce, for thirty-two years at Fort Monmouth as a logistics management specialist, earning $79,420 per year. According to his certification, prior to Fort Monmouth's closing in 2011, Mark was offered a position at the Aberdeen Proving Grounds in Maryland that would have resulted in a reduction of his gross and net pay.*fn1 Mark also asserted that he retired because, if he accepted employment in Maryland, there would be a detrimental impact on his income, as well as additional financial losses.*fn2

Mark additionally claimed he decided to retire because of his health, asserting, without providing anything other than these broad allegations, that he has chronic cardiac and urologic conditions. Mark also asserted that his retirement annuity would generate a monthly payment of $3,475, of which $541.75 would be due to Kathleen based on an order equitably distributing his pension, leaving him with the gross monthly amount of $2,933.25. Consequently, Mark asserted that he could no longer afford to pay alimony to Kathleen at the rate of $265 per week because it would leave him with only $941.47 per month on which to live.

The motion judge denied all the relief requested by Mark for reasons set forth in a written decision appended to his December 5, 2011 order. Among other things, the judge determined that Mark's retirement at the age of sixty-one was earlier than anticipated by the PSA and, because it constituted an early retirement within the meaning of Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992), Mark's retirement ought not be considered as a changed circumstance warranting termination of his alimony obligation.

Mark moved for reconsideration, which, he claimed, would require the granting of all the relief he sought in the prior motion. In his supporting papers, Mark argued, among other things, that the judge was mistaken in holding, in his December 5, 2011 written opinion, that "the parties['] [PSA] included a limited duration alimony award," which "would be paid by the defendant to the plaintiff until the defendant's retirement" at the age of sixty-five. By way of a written decision attached to an order entered on February 10, 2012, the judge granted reconsideration in part and clarified his earlier ruling but ultimately did not terminate Mark's alimony obligation or any other aspect of the divorce judgment.

Mark appeals, arguing:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY ASCRIBING TERMS TO THE PARTIES' PROPERTY SETTLEMENT AGREEMENT THAT WERE NOT INCLUDED IN SAME.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO RECONSIDER ITS ORDER DATED DECEMBER 5, 2011 BECAUSE IT FAILED TO ADDRESS THE [DEFENDANT'S] ARGUMENT ABOUT ADDITIONAL TERMS THE COURT ASCRIBED TO THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.

III. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO DETERMINE THAT [DEFENDANT] MADE A PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCES ENTITLING HIM TO A REVIEW OF HIS ALIMONY OBLIGATION.

IV. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO APPLY THE TEST FROM DEEGAN v. DEEGAN, 254 N.J. SUPER. 350 (APP. DIV. 1992) AFTER IT DETERMINED THAT [DEFENDANT] HAD "RETIRED EARLY."

We affirm.

Mark is correct that the motion judge mistakenly apprehended the impact of his retirement on the alimony obligation. The parties did not agree that Mark's retirement would end the limited duration alimony provision. To the contrary, the PSA states only that Mark's death, Kathleen's death or the passage of eight years would end his alimony obligation. But the judge's misconception of this fact does not mean that Mark is entitled to relief. To the contrary, the referenced provision of the PSA further confirms that Kathleen was correct in claiming that Mark's retirement was not an event that permitted termination of the alimony obligation. We review orders not opinions. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Heffner v. Jacobson, 100 N.J. 550, 553 (1985); Price v. Hudson Heights Dev., LLC, 417 N.J. Super. 462, 467 (App. Div. 2011). Although based on a factual misunderstanding, the judge ultimately came to the right conclusion. The Legislature has declared that the length of a limited duration alimony award may not be modified "except in unusual circumstances," N.J.S.A. 2A:34-23(c), which we have viewed as requiring a "heightened" showing, see Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 356 (App. Div. 2009); Gordon v. Rozenwald, 380 N.J. Super. 55, 67 (App. Div. 2005). Mark's retirement, whether or not viewed as an early retirement, was not an unusual circumstance warranting termination of the limited duration alimony award.

We lastly discuss Point III, in which Mark contends that the motion judge erred in considering whether the circumstances alleged by him in his original motion entitled him to a "review" of his alimony obligation. We assume, in this regard, that Mark is arguing he was entitled to a downward modification of the alimony amount or at least a plenary hearing. We reject this point for a number of reasons. First, Mark did not move for a reduction of the alimony obligation based on changed circumstances; he moved only for its termination. Second, Mark did not assert in his moving papers that he was unable to secure employment to replace that from which he retired; indeed, Mark acknowledged that he could have continued his employment with the federal government but unilaterally deemed it more feasible to retire earlier than anticipated by the PSA.*fn3 Even if Mark's decision to retire was reasonable in light of Fort Monmouth's imminent closure, he did not attempt to demonstrate that other employment was not available to him. And, third, Mark did not demonstrate a prima facie case because he failed to provide a complete current case information statement (CIS) -- by providing no information about his former or current assets*fn4 --as required by Rule 5:5-4(a); this circumstance alone warranted a denial of the motion insofar as it might be expansively viewed as seeking a reduction in the alimony award. See Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

We find insufficient merit in any of Mark's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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