The Appellate Division “give[s] deference to a trial judge’s findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole.” Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). To vacate an award of alimony, the Appellate Division “must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or . . . must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record[.]” Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993), appeal after remand, 290 N.J. Super. 35 (App. Div. 1996).

The award of alimony is largely discretionary with the trial judge. Steneken v. Steneken, 367 N.J. Super. 427, 434-35 (App. Div. 2004), aff’d in part and modified in part, 183 N.J. 290 (2005). That discretion is informed, however, by thirteen factors set forth in N.J.S.A. 2A:34-23(b). Those factors are intended to further the overarching goal of alimony, which is to assist the supported spouse in maintaining a lifestyle reasonably comparable to the one enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). The trial court is required to analyze all thirteen factors and in contested define the marital standard of living pursuant to the fourth factor as a base line for potential future modifications. Id. In addressing the obligated spouse’s earning capacity, it is within the judge’s discretion to “employ as a benchmark the amount of time plaintiff had devoted to his work during the marriage and to expect him to continue working at that level.” Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002).

Any income generated by the supporting spouse during the marriage is relevant to the proper determination of an alimony award. See Rogers v. Gordon, 404 N.J. Super. 213, 223-25 (App. Div. 2008) (holding in calculating alimony, that the trial court properly imputed income for a husband’s “side jobs” that generated additional income during the marriage); Clarke, supra, 349 N.J. Super. at 58 (holding that the trial court may consider overtime employment when determining the proper amount of alimony).

However, the law requires the court to consider net income, not gross income when determining support obligations. Caplan v. Caplan, 364 N.J. Super. 68, 89 (App. Div. 2003), aff’d, 182 N.J. 250 (2005).

A party may not deliberately remain underemployed in order to shirk his or her support obligations, and a trial court has the discretion to impute a higher income to any individual it believes is doing so. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). There are, however, no bright-line rules which govern the imputation of income. Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004).

However, there is no legal authority for either imputing income to a teacher who does not work in the summer, or holding that a teacher who does not work in the summer is “underemployed.”

In alimony cases, the trial judge must analyze the thirteen factors in N.J.S.A. 2A:34-23(b). The judge must also articulate, on the record, the “specific findings of fact and conclusions of law” that support his or her conclusions. Pressler, Current N.J. Court Rules, comment on R. 1:7-4 (2010). Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law. Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996); Curtis v. Finneran, 83 N.J. 563, 570 (1980). If sufficiently clear factual findings are absent from the record, the Appellate Division will remand to the trial court for additional findings. Curtis, supra, 83 N.J. at 571.

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Not every long-term marriage results in an economic dependency that must be addressed with an award of alimony.

The duration of the marriage is one of many factors that courts must consider. N.J.S.A. 2A:34-23b(1)-(13). A judge may find several other factors to be more pertinent: age, and the fact that plaintiff was approaching a retirement age appropriate for one in her position; the marital standard of living and the parties’ ability to maintain it; contributions during the marriage, both economic and noneconomic; the equitable distribution of property; and the income available through investment of assets. Ibid.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A support award made at the time of divorce, whether by agreement or court order, may be adjusted based upon a finding of substantial changed circumstances. Lepis v. Lepis, 83 N.J. 139, 149-50 (1980). Courts must undertake a two-step process before modifying a support or maintenance provision. Id. at 157; Crews v. Crews, 164 N.J. 11, 28 (2000). First, the movant must make a prima facie showing of such changed circumstances as would warrant relief; then, the court will order discovery of an ex-spouse’s financial status and consider both parties’ financial positions, including the supporting spouse’s ability to pay. Lepis, supra, 83 N.J. at 157. For modification of an alimony award, the movant must demonstrate that “changed circumstances have substantially impaired the ability to support himself or herself.” Ibid. This refers to “the ability to maintain a standard of living reasonably comparable to the standard enjoyed during the marriage.” Crews, supra, 164 N.J. at 28. When a movant is seeking to modify child support the “guiding principle is the ‘best interests of the children.’” Lepis, supra, 83 N.J. at 157.

Factors to be considered on a motion for modification include “the dependant spouse’s needs, that spouse’s ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependant spouse at the former standard.” Id. at 152. Examples of changed circumstances include an increase in the cost of living; an increase or decrease in the supporting spouse’s income; and subsequent employment by the dependent spouse. Id. at 151. Changed circumstances “are not limited in scope to events that were unforeseeable at the time of divorce.” Id. at 152. Criteria include whether the change in circumstances is continuing and whether the MSA has made explicit provision for the change. Ibid. See also Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.) (holding that the marital standard of living is central to determining changed circumstances, but that the agreement between the parties is also entitled to significant consideration), certif. denied, 180 N.J. 354 (2004).

Our courts have consistently rejected requests for modification based on circumstances which are only temporary. See, e.g., Larbig, supra, 384 N.J. Super. at 22-23.

However, as the court recognized in Larbig, supra, “[t]here is, of course, no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation.” 384 N.J. Super. at 23. At some point, a reduction in earned income may be more than merely passing or temporary, particularly in view of the drastic downturn in the financial market and brokerage-related jobs in which husband (in this case) is employed.

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There are circumstances where previously known facts and information, properly established and relevant to such issues as child support, are brought to the attention of the court, and they should not, as a matter of law, be barred or disregarded. Family Part decisions, including support, must be equitable and just, and ultimately, properly documented information should, as a general rule, be considered when brought to the court’s attention.

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

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Once the moving party has established “a prima facie showing of changed circumstances warranting relief[,] . . . the court [has] the right to order full discovery regarding the financial circumstances of the other spouse.” Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div. 2002).

A ninety-day period of discovery may be warranted in such a case before a plenary hearing is conducted. See R. 5:5-1(e).

“Disputes of material fact should not be resolved on the basis of certifications nor in reliance upon ambiguous terms in a property settlement agreement.” Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) (citing Conforti v. Guliades, 128 N.J. 318, 328-29 (1992)).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Not every Lepis application requires a plenary hearing. Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.), certif. denied, 142 N.J. 455 (1995); Lepis, supra, 83 N.J. at 159.

[T]o be entitled to a hearing on whether a previously-approved support award should be modified, the party moving for the modification “bears the burden of making a prima facie showing of changed circumstances.” Specifically, the party seeking modification of an alimony award “must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself.”

[Crews v. Crews, 164 N.J. 11, 28 (2000).]

See also Miller v. Miller, 160 N.J. 408, 420 (1999).

As a necessary and preliminary step to meeting this burden, a movant is required to submit both a current and a prior CIS. R. 5:5-4(a).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

“An award of support is within the discretion of the trial court. It will not be disturbed unless it is ‘manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice.’” Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)). Findings by trial judges——including those assigned to the Family Part——are considered binding on appeal when supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Moreover, “[b]ecause of the family courts’ special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.” Id. at 413.

Every application to modify a support 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.” Martindell v. Martindell, 21 N.J. 341, 355 (1956). The appellate court will not grant the trial judge such discretion, however, “if they are based upon a misunderstanding of the applicable legal principles.” See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

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

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A court is authorized to modify alimony orders “from time to time as circumstances may require.” N.J.S.A. 2A:34-23. Moreover, as the trial court recognized, “[w]hen 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; see also Miller v. Miller, 160 N.J. 408, 420 (1999) (“In an application brought by a supporting spouse for a downward modification in alimony, such as the present case, the central issue is the supporting spouse’s ability to pay.”).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

It is proper for the court to find “no basis to impute additional income to defendant over and above her Social Security Disability benefit,” if plaintiff presented no evidence rebutting the defendant’s prima facie showing of her inability to work. (citing Golian v. Golian, 344 N.J. Super. 337, 342-43 (App. Div. 2001)).

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The award of spousal support is broadly discretionary. This discretion is codified in N.J.S.A. 2A:34-23(b) which provides that “[i]n all actions . . . for divorce . . . the court may award . . . permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party.” Of course, the exercise of this discretion is not limitless. In itemizing the thirteen specific criteria to be considered in fixing alimony, the statute sets guidelines and objective standards which frame the exercise of the court’s discretion.
[Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005).]

In determining an alimony award, the trial court must consider the following statutory factors:

(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or nonfinancial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
(13) Any other factors which the court may deem relevant.
[N.J.S.A. 2A:34-23b.]

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

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