Law Lessons from STEPHEN IANNEILLO V. FRIEDA IANNEILLO, App. Div., A-1686-08T1, October 16, 2009:

Support orders are subject to increase or reduction when the party seeking modification shows that the relief is warranted. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Changes in circumstances that warrant modification of support are those that substantially affect the parties’ relative need and ability to pay. Id. at 151, 155; Stamberg v. Stamberg, 302 N.J. Super. 35, 43 (App. Div. 1997). “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.” Lepis, supra, 83 N.J. at 157. Ability to support oneself is measured against the marital standard of living. Id. at 150.

There are well-established criteria a court must consider in determining whether the spouse seeking modification has established a prima facie case for modification. A temporary change is generally deemed inadequate. Id. at 151, 155. And regardless of likely duration, a change in actual income, without more, is not determinative because ability to pay support is a function of the party’s assets and the income that he or she could “derive from personal attention to business.” Id. at 150 (quoting Bonanno v. Bonanno, 4 N.J. 268, 274 (1950)).

Moreover, when a change in ability to pay support is attributable to a voluntary choice about post-marital lifestyle made by the supporting spouse, our courts recognize that the supporting spouse’s choices are limited to the extent that they require a “discontinuance of the financial aid the former spouse” needs to maintain the marital standard of living. Deegan v. Deegan, 254 N.J. Super. 350, 359 (App. Div. 1992) (establishing criteria for considering requests to modify support to accommodate early retirement).

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