Law Lessons from CELINA GONZALEZ-POSSE v. JOSE RICCIARDULLI, 410 N.J. Super. 340 (App. Div. 2009), A-6446-06T3, November 9, 2009:

Once changed circumstances have been established, Lepis v. Lepis, 83 N.J. 139, 151 (1980); Martindell v. Martindell, 21 N.J. 341, 353 (1956), the standard that governs an application for modification of spousal support set in a PSA is the same that applies at the time of the original judgment of divorce: “the dependent spouse’s needs, that spouse’s ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependent spouse at the former standard.” Lepis, supra, 83 N.J. at 152. The extent of actual economic dependency determines the duration of support as well as its amount. Gayet v. Gayet, 92 N.J. 149, 154 (1983). Moreover, a trial court is only obligated to follow a settlement agreement to the extent it is equitable and just. Innes v. Innes, 117 N.J. 496, 518 (1990).

In an application brought by a supporting spouse for a downward modification in alimony, a focal issue is the supporting spouse’s ability to pay. Miller v. Miller, 160 N.J. 408, 420 (1999). Ability to generate income is not the only measure, however, and the inquiry may also include the dependent’s earning capacity and actual income, including any increase therein. Ibid.; N.J.S.A. 2A:34-23(b)(1); (5); (10) and (11). In the end, “[e]ach and every motion to modify an alimony obligation ‘rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.’” Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (2006)).

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

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