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Smith v. Smith

Superior Court of New Jersey, Appellate Division

August 2, 2013

ARLEEN T. SMITH, Plaintiff-Respondent,
v.
JEFFREY T. SMITH, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 16, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1001-99C.

Law Offices of James M. Newman & Associates, LLC, attorneys for appellant (Sebastian Ferrantell, on the brief).

Respondent has not filed a brief.

Before Judges Koblitz and Accurso.

PER CURIAM

Defendant Jeffrey T. Smith appeals from the denial of his post-judgment motion to terminate his alimony obligation. We affirm.

The parties were divorced in 1999, after a forty year marriage. Plaintiff is seventy and defendant seventy-one years old. Each of them has one of their four emancipated children living with them. One of the parties' daughters and her ten-year-old-daughter live with plaintiff. Another daughter, her husband and their ten-year-old triplets live with defendant. Both parties claim to receive no financial support from these adult children living in their households.[1]

At the time of their divorce, defendant was employed as a delivery driver for the New York Daily News earning approximately $90, 000. The parties' judgment of divorce required defendant to pay alimony of $500 per week. The court reduced that sum to $350 in January 2011, following defendant's loss of his job, and further reduced it to $250 when his unemployment benefits ended.

This latest round of post-judgment motions began with plaintiff moving in aid of litigant's rights to collect alleged alimony arrears of approximately $20, 000. Plaintiff certified that she worked as a retail sales clerk earning $15 per hour and that her employer limited her hours to between twenty-eight to thirty hours per week. She claimed to suffer from an irregular heartbeat, which required muscle relaxants and medication to control, and noted that her job required her to be on her feet all day. She certified that her credit card debt exceeded $38, 000, that she was two quarters behind on her property taxes, and that her condominium association was threatening her with legal action as she owed over $3500 in maintenance fees. She claimed to be totally dependent upon defendant's support payments to survive.

Defendant cross-moved to retroactively reduce his alimony and to terminate it going forward. Defendant certified that he was not in arrears of approximately $20, 000, because he was entitled to credits of over $11, 000 going back before their divorce was finalized. He claimed he was terminated from his job in 2009, grieved it, and officially retired in 2011. He averred that he has "tried to get other employment" but when "the company sees my age[, ] they laugh at me." He claimed to suffer from high blood pressure, an enlarged prostate, emphysema and psoriasis. He certified that "[d]riving a truck is really a young man's profession that I cannot do any longer."

The motion judge denied defendant's motion to terminate his alimony but further reduced it to $140 per week, without prejudice, retroactive to the filing date of his cross-motion.[2]In a written statement of reasons, the judge noted the parties' ages and the difficult financial circumstances both were facing. Although accepting defendant's explanation of his termination and subsequent retirement, the judge noted that he had not produced any proof that he could not obtain a "DOT card" which he needed to continue work as a truck driver.[3]

Notwithstanding, as both plaintiff and defendant were past the traditional age of retirement, the judge determined that "both parties may work to obtain additional income to supplement their lifestyles, but [the court] will not require either party at this stage in each party's life to continue working for purposes of calculating alimony." The court accepted defendant's projected income ...


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