Law Lessons from JOSEPH E. MIELE V. KATHY LEE MIELE, App. Div., A-1341-08T3, November 2, 2009:

Whether modification of alimony that was previously agreed to in a PSA is necessary rests on a determination relying “not only on numbers, but also on ‘what, in light of all the facts presented to [the judge], is equitable and fair, giving due weight to the strong public policy favoring stability of arrangements.’” Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.), certif. denied, 180 N.J. 354 (2004) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)); see also Rolnick v. Rolnick, 262 N.J. Super. 343, 353 (App. Div. 1993).

Such a fairness and equity determination involves consideration of such issues as the adequacy of the agreement at inception, the presumed understanding of the parties at that time, the reasonable expectation of the parties during the life of the agreement, and the manner in which the parties acted and relied on the agreement. Glass, supra, 366 N.J. Super. at 373; see Savarese v. Corcoran, 311 N.J. Super. 240, 248-49 (Ch. Div. 1997) (finding the parties intended the PSA, which included an anti-Lepis clause, to be an integrated agreement, in light of what the parties “actually understood at the time and how they conducted themselves subsequently”), aff’d, 311 N.J. Super. 182 (App. Div. 1998); cf. Dilger v. Dilger, 242 N.J. Super. 380, 385 (Ch. Div. 1990) (stating that to determine whether defendant’s retirement is a changed circumstance warranting modification of alimony, the court must first “examin[e] the intention of the parties as expressed in the agreement itself”).

Lynn v. Lynn, 165 N.J. Super. 328 (App. Div.), certif. denied, 81 N.J. 52 (1979), involved a supporting spouse who voluntarily changed his employment. See also, Dorfman v. Dorfman, 315 N.J. Super. 511, 516-17 (App. Div. 1998) (discussing evidence of the job-search efforts and results deemed sufficient to demonstrate that the husband’s underemployment was neither temporary nor voluntary).

In this case, however, the court noted that the payor spouse has demonstrated two, and possibly three, straight years in which his income has been substantially below the “anticipated gross income” estimated by the parties in the PSA. At some point, a reduction in earned income is more than merely passing or temporary. This may especially be the case during a significant downturn involving the economic sector in which the supporting spouse is employed. As the court held in Larbig, supra, 384 N.J. Super. at 23, 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.”

See related Blog Post, published in the New Jersey Family Law blog.

See related blog post by Maria P. Imbalzano, Esq., published in the New Jersey Law Blog by Stark & Stark: Modification of Alimony and Child Support in a Poor Economy

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