July 2, 2013
DENISE BLACK, Plaintiff-Respondent,
WILLIAM F. BLACK, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0254-00.
Law Offices of Robert W. Mayer, attorneys for appellant (Robert W. Mayer, on the brief).
Respondent has not filed a brief.
Before Judges Fisher and St. John.
Defendant William F. Black appeals the Chancery Division's orders of February 2, 2012, denying his motion to terminate alimony and child support, and March 26, 2012, denying his motion for reconsideration. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we reverse and remand.
The record discloses the following facts and procedural history.
Defendant and plaintiff Denise Black were divorced on September 18, 2002. Two children were born of the marriage, Nicole in 1991, and Samantha in 1993. The children are currently full-time college students.
At the time of the divorce, defendant was employed as a contractor earning $66, 000 per year. Certain ailments prevented him from performing physical labor. In November 2009, defendant began collecting Supplemental Security Income (SSI) in the amount of $705 per month. However, he was never determined to be permanently disabled. Instead, his disability status must be reviewed annually.
As of November 3, 2011, defendant owed more than $115, 000 in support arrears. His current obligations are $347 per week in child support for the two children, $200 per week as partial payment of arrears, and $100 per week in alimony, all of which total $647 per week. Defendant is also obligated to pay child support for a child from his second wife in the amount of $305 per week. His rent costs $400 per month.
Defendant filed a motion to terminate his obligation to pay child support and alimony because his disability makes it impossible for him to earn a living and his SSI is insufficient to support himself and also meet his obligations. Defendant further requested emancipation of the children but ultimately he conceded that because the children were full-time students, they were still dependent on him for support. The motion judge, without ordering financial disclosures from the parties, determined that the court could not modify defendant's support obligation because defendant had not established a permanent disability as he was considered only temporarily disabled. However, the judge suspended defendant's child support payments for a period of one year. Additionally, the judge denied defendant's motion for reconsideration because it was not timely.
Defendant has the burden of showing such "changed circumstances" as would warrant relief from the support or maintenance provisions involved. Martindell v. Martindell, 21 N.J. 341, 353 (1956). A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status. Lepis v. Lepis, 83 N.J. 139, 157 (1980). "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. This requires full disclosure of the [obligor] spouse's financial status, including tax returns." Ibid.
Furthermore, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred." Id. at 151 (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J.Super. 346, 354 (App. Div. 1988) (internal citation omitted), certif. denied, 114 N.J. 505 (1989). "[A] court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J.Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller v. Miller, 160 N.J. 408, 420 (1999).
Moreover, satisfying this threshold does not automatically result in a downward modification of defendant's support obligations. There is no firm rule governing when an existing support obligation has ceased to be "'equitable and fair[;]'" rather, courts are to weigh several factors dependent on the nature of each case. Id. at 153 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). These factors include whether the change in circumstance is temporary or permanent; whether the change was voluntary; whether it was motivated by bad faith or a desire to avoid payment; and whether the change in circumstance renders the payor unable to pay. See Larbig v. Larbig, 384 N.J.Super. 17, 23 (App. Div. 2006) (finding a reduction in income to be temporary); Kuron v. Hamilton, 331 N.J.Super. 561, 572 (App. Div. 2000) (finding the movant's good faith to be an "ingredient" to consider); Deegan v. Deegan, 254 N.J.Super. 350, 355 (App. Div. 1992) (finding that a voluntary change such as retirement may sometimes justify a modification).
Applying these principles to the issue of defendant's application for a modification of his support and alimony obligations, we agree that defendant has made a prima facie showing of changed circumstances.
We reverse and remand for disclosure of the parties' financial status, and a determination regarding whether there are changed circumstances sufficient to adjust defendant's obligations for child support and alimony.
Reversed and remanded. We do not retain jurisdiction.