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Steidberger F. Austin v. Eleanor L. Austin

December 6, 2012

STEIDBERGER F. AUSTIN, PLAINTIFF-APPELLANT,
v.
ELEANOR L. AUSTIN, DEFENDANT-RESPONDENT.



Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically on November 9, 2012 - Before Judges Yannotti, Harris, and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part Monmouth County, Docket No. FM-13-1177-08-D.

Plaintiff Steidberger F. Austin appeals from the Family Part's March 16, 2012 post-judgment order that, among other things, denied his application for an evidentiary hearing and modification in alimony. We reverse and remand for further proceedings.

I.

Plaintiff and defendant Eleanor L. Austin were married in May 1984. One child, now an emancipated adult, was born of the marriage.

The parties were divorced pursuant to a judgment of divorce entered on February 25, 2009. That judgment incorporated the parties' Property Settlement Agreement (PSA), which provided that plaintiff pay permanent alimony to defendant in the amount of $1875 per month. The PSA recited that plaintiff "is a W-2 wage earner at a current salary of $105,000, plus bonuses." Defendant was identified as unemployed, but "[w]hen she is employed, [she] has been a W-2 wage earner at an approximate salary of $25,000."

Plaintiff's employment as a systems analyst in the financial industry was terminated in July 2010. While he was searching for a new job, he continued to pay alimony for several months. In early 2011, however, plaintiff filed a motion seeking to terminate or suspend his alimony obligation, averring that he was then receiving unemployment benefits in the amount of $600 per week, which would end on January 25, 2011. His Case Information Statement (CIS) indicated that for calendar year 2009, plaintiff's gross income was $149,722. Defendant's CIS disclosed that her calendar year 2010 income was $4,561, and listed plaintiff's gross income for the same period as $153,241.

Plaintiff unilaterally suspended alimony payments after February 2011.

On February 23, 2011, a Family Part judge denied plaintiff's motion without prejudice, ordering the parties to "submit the matter of modification of alimony to economic mediation." The order further provided that if mediation were unsuccessful, "the parties may request a plenary hearing." Mediation occurred on July 7, 2011 and was unsuccessful.

Coincident with the date of mediation, defendant was laid off by her employer. Then, in December 2011, she was diagnosed with cancer, which required weeks of treatment, and incurred health care costs that exceeded her social security and unemployment benefits.

In that same month, plaintiff received an offer of employment, set to start on January 9, 2012, for a base compensation of $82,500 per year. The job, according to plaintiff's attorney, is located in Pennsylvania and requires a two-hour journey to work each way.

Defendant finally filed a motion to compel the payment of alimony, which was unaffected by the February 23, 2011 order.

During the year between that order and her motion to enforce, plaintiff had not made any alimony payments. Plaintiff filed a cross-motion (1) renewing his request for a reduction of alimony due to changed circumstances, (2) asking the court to ...


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