July 9, 2013
ACHSA SHUSTER, Plaintiff-Respondent,
JOHN SHUSTER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-5947-89.
Lisa C. Krenkel argued the cause for appellant (Krenkel & Krendel, LLC, attorneys; Ms. Krenkel, on the brief).
Joan M. Donnelly argued the cause for respondent (Ocean-Monmouth Legal Services, attorneys; Ms. Donnelly and Jordan Dascal, on the brief).
Before Judges Waugh and St. John.
Defendant John Shuster appeals from the August 1, 2012 determination of the Family Part denying his motion to modify his alimony obligation and for a plenary hearing to determine the financial situation of plaintiff Achsa Shuster. We affirm.
The record reveals the following facts and procedural history.
The parties were married in 1974, and their son James was born in 1981. In 1988, plaintiff became physically and mentally ill and the parties separated. They divorced in 1991.
The judgment of divorce required defendant to pay plaintiff $250 per week in permanent alimony, and to maintain an insurance policy with plaintiff and James as beneficiaries. Defendant was the parent of primary residence for James. Plaintiff paid no child support. Although plaintiff was expected to contribute to James' college education, she did not do so. Soon after the divorce, defendant re-married.
Because of plaintiff's disabilities, she receives Social Security Disability benefits of $208 per month. However, alimony payments made her ineligible for Supplemental Security Income. At the time of the divorce, defendant was a veterinarian earning $39, 000 per year. He was employed by the Animal Hospital in Neptune, which he eventually purchased. In 1997, defendant and his current wife purchased the building that housed the hospital, which began to pay them rent of $1500 per month.
In April 2012, defendant filed a motion to modify alimony and for discovery of plaintiff's finances. Defendant was sixty-two years old and suffered from arthritis, ganglion cysts, and carpal tunnel syndrome. As a result of his health problems, defendant stated that his income had declined because he could no longer perform surgery. Defendant's physician agreed that he could not perform surgery or work full-time. Defendant filed a case information statement (C.I.S.) in 2012, as well as tax returns which established a decline in his income from $80, 278 in 2008, to $66, 820 in 2009, and $65, 215 in 2010; business and personal debt of $445, 513; assets of $511, 500; and monthly obligations of $9898. He did not file a C.I.S. from the time of the divorce, but instead produced a 1988 tax return.
Plaintiff cross-moved for an increase in alimony because of the rise in the cost of living, and for payment of $2506 in alimony arrears.
The motion judge, without a plenary hearing, ordered defendant to pay arrears and denied defendant's application for a downward modification of his alimony obligation, finding that defendant had not demonstrated a substantial change in circumstances warranting modification. Lepis v. Lepis, 83 N.J. 139 (1980). We agree.
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, supra, 83 N.J. at 157. "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. (quoting Mowery v. Mowery, 38 N.J.Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)) (alteration in original). 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)) (quotation marks omitted). 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).
We agree that defendant failed to make a prima facie case of changed circumstances which would warrant discovery of plaintiff's finances. For one thing, the award of $250 per week in permanent alimony was premised upon defendant earning $39, 000 per year. Even if defendant has experienced a decline in earnings from $80, 278 in 2008, to $65, 215 in 2010, this income is still substantially higher than the $39, 000 he was earning at the time of the divorce. On his C.I.S., defendant claims that he earned only $8500 in 2011, presumably because of the decline of the Animal Hospital's earnings. Nevertheless, he did not submit a tax return for 2011 and his monthly expenses continued to be nearly $10, 000.
Defendant also alleges that he can no longer perform surgery because of health problems. However, his only proof is a summary note from his doctor, rather than a more detailed certification. It is unclear whether the change in defendant's health is permanent. Moreover, as a licensed veterinarian, defendant might be capable of earning income notwithstanding his inability to perform surgery by performing other services.
It may be true that defendant has experienced business losses and has significant debt which impacts his earnings. However defendant still meets his personal monthly obligations of nearly $10000 Furthermore subsequent to the divorce defendant purchased the Animal Hospital as well as the building that houses it Presumably there is some equity and rental income that can be generated from that asset Even if defendant is no longer capable of performing surgery he has not established a prima facie showing that his earnings have diminished to such an extent as to warrant a reduction of his alimony obligation
We agree with the motion judge that defendant has failed to demonstrate a prima facie case of changed circumstances Lepis supra 83 N.J. at 157 We express no opinion as to whether defendant would be entitled to relief on a fuller record supported by certifications rather than unsigned notes and limited financial information