November 8, 2013
SANDRA L. JONES (n/k/a Sandra L. LeGore), Plaintiff-Respondent,
MICHAEL D. JONES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-400-08.
Brock D. Russell, LLC, attorney for appellant.
Trace and Jenkins, LLC, attorneys for respondent (Angie Gambone, of counsel and on the brief).
Before Judges Fisher and O'Connor.
The parties were divorced by way of a July 7, 2009 judgment, which incorporated a settlement reached a month earlier that included defendant Michael D. Jones's agreement to pay plaintiff Sandra L. Jones $425 per week in permanent alimony. The judgment explained that the alimony award was "based upon [p]laintiff's 2008 income of $94, 000 and [d]efendant's 2008 income of $167, 000."
On April 5, 2012 – nearly three years after their settlement and divorce – defendant moved for the termination or a downward modification of his alimony obligation. Plaintiff opposed the motion and cross-moved for counsel fees. The motion judge denied both motions without conducting an evidentiary hearing on defendant's claim of changed circumstances for reasons set forth in his June 1, 2012 order.
Defendant appeals that order, arguing he was entitled to an evidentiary hearing because he had demonstrated a substantial change in circumstances. We agree and reverse.
In his moving papers, defendant asserted that his 2008 income of $166, 477, from which the alimony award was calculated, consisted of earnings from employment as a part time tax assessor for both Cape May City and Cape May Point Borough in the amounts of $78, 979 and $29, 575, respectively, and an additional $57, 923 from his own real estate appraisal business. In his 2012 motion for an alimony reduction, defendant presented evidence that his income from these three sources in 2011 was $81, 007, $13, 000, and $3, 756, respectively – an annual total of $97, 763. Stated another way, defendant alleged that by 2011, he had suffered a forty-two percent reduction in what his income was in 2008.
Defendant also provided evidence regarding the intervening years of 2009 and 2010, during which he received an annual income of $105, 120 and $138, 604, respectively. The only source of income that remained relatively constant throughout these years was that derived from his position as tax assessor in Cape May City, where he earned $76, 021, $79, 311, and $81, 007, in 2009, 2010 and 2011, respectively. Defendant's income from Cape May Point dropped from the 2008 figure of $29, 575 to $12, 000 in 2009 – a sixty percent decrease; thereafter annual income from that source slightly increased to $13, 000 in 2010, and $13, 000 was again earned from this source in 2011. Defendant's income from his own real estate appraisal business has not reached the same level since the alimony obligation was fixed. It dropped from the $57, 923 earned in 2008 to $17, 099 in 2009; it then rose to $46, 293 in 2010 and fell to $3, 756 in 2011.
Because the motion judge's denial of defendant's motion was based upon his conclusion that the income decrease was not sufficiently substantial to warrant an alimony reduction – a determination based solely on the face of the motion papers – it warrants little deference. Defendant has alleged a forty-two percent decrease from the 2008 income upon which the alimony award was based. Those allegations constitute a prima facie case of changed circumstances and entitles defendant to an evidentiary hearing into whether the alimony obligation should be altered and, if so, to what level. See Lepis v. Lepis, 83 N.J. 139, 157-59 (1980); see also J.B. v. W.B., 215 N.J. 305, 327-28 (2013).
We also do not view the circumstances as presenting merely a temporary decline in defendant's income. Although we observed in Larbig v. Larbig, 384 N.J.Super. 17, 23 (App. Div. 2006), that there is "no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation, " we determined that a twenty-month passage of time from the last revisitation of the support award to the filing of a motion to modify suggested only a temporary change in income. Here, defendant's motion was filed thirty-three months after the alimony obligation was memorialized in the divorce judgment. Moreover, because the divorce judgment was based on an annual income that had ended six months prior to the entry of judgment, the motion judge had the benefit of information relating to defendant's income for the three years following the alimony calculation. We are satisfied the motion was not premature because the alleged change in income does not appear to constitute a temporary setback.
Today's judgment should not be viewed as suggesting any particular outcome on defendant's application. We hold only that defendant has presented a prima facie case of a substantial change in circumstances that entitles him to the opportunity to prove what he has asserted at a plenary hearing. We vacate the order denying the motion and remand for a reasonable period of time for discovery, followed by a plenary hearing.
Vacated and remanded. We do not retain jurisdiction.