ALAN MARCH v. MINDY GOLDBERG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5801-05T35801-05T3

ALAN MARCH,

Plaintiff-Appellant,

v.

MINDY GOLDBERG,

Defendant-Respondent.

_________________________________________

 

Argued September 11, 2007 - Decided

Before Judges Coburn, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, FM-19-307-95.

Francis W. Donahue argued the cause for appellant (Donahue, Hagan, Klein, Newsome & O'Donnell, P.C., attorneys; Mr. Donahue, of counsel and on the brief; Lynn J. Varisano, on the brief).

Ann M. Pompelio argued the cause for the respondent.

PER CURIAM

In this matrimonial case, plaintiff, Alan March, sought termination of the permanent alimony provided by him to his former wife, defendant, Mindy Goldberg, pursuant to their property settlement agreement. He contended that termination of alimony was appropriate because his former wife could maintain the marital standard of living on the income she earned and the terms of the agreement allowed for an adjustment in alimony payments based on changed circumstances. After conducting a plenary hearing, the trial court denied the application. Since the record supports the trial judge's determination that termination of the alimony was unwarranted, we affirm. We expressly do not address the issue of whether a reduction in the alimony is appropriate, since that issue was not raised before the trial court.

The parties were married in 1976 and had three children. Plaintiff is a certified public accountant, and defendant is a nurse. Defendant had stopped working full time when their second child was born in 1982. She did some part time work thereafter, but earned only nominal income. Thus, during most of the marriage, plaintiff was the supporting spouse. The parties' first home was a ranch style house in a middle class neighborhood in Paramus, which they purchased in 1977 for about $60,000 to $65,000. They, thereafter, sold that house and purchased an upscale 5,000 square foot home in Sparta for $410,000, which had four bedrooms and two and one-half baths. While the parties did not spend extravagantly, the family took vacations, owned reasonably priced cars, and shopped from low to high priced stores.

The parties separated in 1994 and were divorced in 1999. The record indicates that for the five years preceding their separation, plaintiff's income averaged about $92,000 a year.

The parties entered into a property settlement agreement dated January 15, 1999, which was incorporated into the Judgment of Divorce dated February 22, 1999. Paragraph 14 of the property settlement agreement provides for the payment of alimony as follows:

Husband agrees to pay to Wife, as permanent alimony, the sum of Four Hundred and Twenty-Five ($425.00) Dollars per week commencing the week of January 11, 1999.

Husband's obligation to pay alimony will end, and he will be released from the obligations thereof, upon the death of Wife.

In addition, Husband's obligation for alimony payments to Wife shall cease upon Wife's remarriage, or upon the death of Husband.

If Wife is cohabiting with a man or woman to whom she is not married or related by blood, who is making financial contributions to the benefit of Wife in a relationship tantamount to marriage, then, and in such event, alimony payments shall cease. . . .

The parties acknowledge their right in the future to request that the Court modify the amount of alimony being paid based upon a material change in the parties [sic] financial circumstances but agree not to make such an application during the twenty four (24) months immediately after the execution of this Agreement.

Paragraph 17(b) of the agreement required plaintiff to pay, as additional alimony, the monthly costs of defendant's health insurance for a period of two years. However, in the event defendant obtained employment and her employer offered free or less expensive coverage, she was required to elect that coverage, and plaintiff was required to pay the cost of that coverage.

The agreement also gave plaintiff custody of two of the children, while defendant had custody of one child, although that child later went to live with the father. Provisions were made for child support payments, not in issue before this court. The marital residence was sold, and defendant received $60,000, representing seventy-five percent of the proceeds.

After the divorce, defendant used her share of the proceeds from the sale of the marital home to buy a townhouse, where she resides. The townhouse was purchased for $150,000; she put down $60,000 and obtained a mortgage for $90,000. The value of the townhouse at the time of the hearing was about $300,000. From the description in the record, defendant appears to be residing in a comfortable townhouse. It has three levels totaling 1,800 square feet, with two bedrooms, two and one-half baths, a combined living room dining area, kitchen, laundry room, basement, fireplace, patio, deck, and one-car garage. The townhouse is part of a condominium community which has tennis courts and a pool. Defendant has no savings or investments.

After the divorce, defendant returned to the workforce as a nurse. In 2004, the year immediately prior to the hearing below, her annual income was $63,219. Plaintiff's annual income was $95,427 for 2004, only slightly more than it was at the time of the divorce. However, pursuant to the property settlement agreement, plaintiff was required to make alimony payments of $425 per week, totaling $22,100 per annum. Once the alimony payments are made, plaintiff's net income decreases to $73,327, while defendant's increases to $85,319. As a result, the alimony payments leave the supporting spouse with less money than the spouse entitled to support. The inequity of these circumstances was not raised in plaintiff's argument before the trial court and, hence, was not addressed by the trial judge, although this discrepancy is argued on appeal.

In September 2004, plaintiff moved to terminate the alimony payments, and also sought to compel defendant to contribute to certain medical and college expenses of the parties' daughter who was residing with plaintiff. (The expenses regarding the daughter are not at issue in this appeal.) Plaintiff maintained that the property settlement agreement required termination of support because defendant had obtained reemployment and because defendant could sustain the marital lifestyle with her own income. Plaintiff conceded that he had the ability to make the payments and that he was currently able to maintain the marital lifestyle.

The trial court held a five day plenary hearing on July 11, 12, 27 and 28, 2005, and August 1, 2005, and issued a written decision on November 7, 2005, denying the application to terminate the alimony. The trial judge noted that defendant had a right to permanent alimony since she was the dependent spouse and had been out of the workplace for most of the marriage. He also found that the parties enjoyed a marital lifestyle "between middle and upper middle class" and that defendant's current lifestyle was not equivalent to her marital lifestyle. Plaintiff's argument that defendant's reemployment as a nurse constituted "changed circumstances" was rejected by the trial court. The trial judge determined that, at the time the property settlement agreement was made, both parties anticipated that defendant would return to nursing. He noted that defendant's current income is roughly equivalent to what she would have been expected to earn as a nurse when the property settlement agreement was reached and that she could not enjoy the marital lifestyle based on this income alone. Plaintiff's subsequent motion for reconsideration was denied. The trial court awarded defendant counsel fees in the amount of $4,153 on the motion for reconsideration. This appeal followed.

On appeal, plaintiff contends (1) that the trial court erred in failing to find that defendant's income was a significant change of circumstances warranting modification of her alimony; (2) that certain factual findings by the trial court were not supported by the record; (3) that the trial court failed to quantify the standard of living that the parties enjoyed during the marriage; and (4) that the award of counsel fees to defendant was unwarranted.

I

Under the terms of the parties' property settlement agreement, the trial court had the discretion to modify or terminate the alimony payments if changed circumstances were found justifying such action. The property settlement agreement, as noted above, specifically permits modification or termination of the alimony after the passage of two years from the date of the agreement "upon a material change in the parties [sic] financial circumstances."

Defendant attempts to circumvent this provision by arguing that this court's decision in Glass v. Glass requires the continuation of the permanent alimony set forth in the agreement. Glass v. Glass, 366 N.J. Super. 357 (App. Div.), certif. denied, 180 N.J. 354 (2000). In Glass, as here, the former husband sought to terminate the alimony payments provided in the property settlement agreement, due to the former wife's employment. Id. at 361. The former husband's ability to pay was not at issue. Id. at 367. Since the former wife was able to maintain the marital standard of living based on her own income and had also been able to accrue substantial assets, the trial court granted the application. Id. at 368. The appellate court reversed. Id. at 380. In doing so, the Glass court noted that the property settlement agreement was an integrated agreement. Id. at 373. By entering into the property settlement agreement, the former wife had waived her interest in her former spouse's business and had accepted a low amount of support in exchange for permanent alimony. Id. at 374-75. The Glass court stated that an analysis of changed circumstances requires not only "careful scrutiny of financial needs and resources to maintain a marital lifestyle, but it involves as well understandings, aspirations and expectations." Id. at 376. Under the circumstances in Glass, the decision to terminate the permanent alimony was reversed. Id. at 380.

The outcome in the present case is not controlled by Glass for two reasons. First, unlike the Glass agreement, which was silent on the subject of modification, defendant's and plaintiff's agreement expressly permits modification after the passage of two years, based on "a material change in the parties [sic] financial circumstances." This provision was sensible at the time, since defendant would be returning to the workforce after a long absence and the amount that she would be able to earn was not specifically known. Indeed, at the hearing before the trial court, defendant expressly acknowledged that she understood that the agreement permitted her alimony to be reduced based upon a change in circumstances. Secondly, it does not appear that defendant traded interests or assets in exchange for the permanent alimony as the wife did in the Glass case. While defendant attempted to make this argument before the trial court, claiming that she gave up claims for arrears in child support, payment of certain medical bills and an interest in plaintiff's 401(k) plan (valued at $4,628.80 at the time of the complaint) in exchange for the permanent alimony, this argument fails since she received about $60,000, representing seventy-five percent of the equity in the marital home.

The provision in the property settlement agreement allowing modification of the alimony award is consistent with case law which provides that an alimony award made at the time the divorce was entered, whether by agreement or court order, may be adjusted based on a finding of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 149-50 (1980).

When evaluating whether a modification in the support award is required, the court must consider the needs of the dependent spouse in light of the marital standard of living. Crews v. Crews, 164 N.J. 11, 29 (2000). Alimony is designed to enable the supported spouse to achieve a lifestyle that is "reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Id. at 16. While changed circumstances may generate a need to increase the alimony payments, they also may cause a decrease in the award because the payments are unnecessary to enable the supporting spouse to maintain the marital standard of living. Lepis v. Lepis, supra, 83 N.J. at 153. When considering support awards, the court should take "[a] closer look . . . at the supported spouse's ability to contribute to his or her own maintenance, both at the time of the original judgment and on applications for modification." Id. at 155. Support payments may be reduced where there has been "a significant change for the better in the circumstances of the dependent spouse." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997).

The issue before the trial court was whether defendant had enjoyed a significant change in circumstances resulting from her increased income that warranted termination of alimony. The burden of proof fell upon plaintiff, since the party seeking to change the support award has the burden of making a prima facie showing of changed circumstances. Miller v. Miller, 160 N.J. 408, 420 (1999). Plaintiff sought to establish that defendant would be able to maintain the marital standard of living on her income alone without the alimony payments.

The trial judge found that the marital lifestyle fell somewhere between middle and upper middle class. He went on to find that defendant's present lifestyle was not equivalent to her marital lifestyle. In reaching this conclusion, the trial judge noted the difference between the 5,000 square foot marital home and defendant's current 1,800 square foot condominium, the fact that defendant had taken only two vacations in the years since the divorce, that she regularly uses her home equity credit line, and that she has no savings or pension. Plaintiff disagrees with these findings, presenting various arguments and evidence to show that they are inconsistent with the proofs. For example, plaintiff makes a strong argument that the amenities of defendant's current condominium community are substantially equivalent to the marital home.

The facts in this case highlight the difficulty in comparing the lifestyle of a family of five with the lifestyle of a single person in trying to determine whether the single person is able to maintain a lifestyle comparable to the marital one. However, the scope of our review of the trial judge's fact findings is limited, and those findings will be upheld if supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Further, in light of the special expertise of judges in the family court, this court accords deference to the fact findings made there. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In terms of the marital standard of living, the record here supports the trial judge's findings that the parties lived a comfortable middle to upper middle class lifestyle. He considered the upscale marital home, the occasional expensive vacations, the family's cars, shopping and dining habits, the monthly household expenses, costs for the children, and the family's pattern of debt. In determining defendant's lifestyle at the time of the hearing, the trial judge considered her residential setting, car, vacation patterns, savings, monthly expenses, and income. The record is sufficient to support a finding that defendant could not support herself at a lifestyle comparable to the marital one, at least without any alimony.

Neither the trial judge nor the parties below addressed the inequity that plaintiff has raised on this appeal. Namely, due to the relative sizes of the parties' incomes, once the alimony payments are made, defendant, the dependent spouse, has more income than plaintiff, the supporting spouse. As noted above, once the alimony payments are added to defendant's income, she has an annual income of $85,319, and plaintiff, the supporting spouse, is left with an annual income of only $73,327. The equity of this situation is doubtful. A support award made at the time of the divorce remains enforceable without modification only so long as it remains "fair and equitable." Lepis v. Lepis, supra, 83 N.J. at 148-49. Since termination rather than modification of alimony was sought, and given the expertise of family court judges on these issues, we will not, on this record, make a decision on the modification of the alimony award. However, nothing here precludes plaintiff from making further application before the trial court for such relief.

II

Plaintiff contends that the trial court erred when it awarded defendant counsel fees on plaintiff's motion for reconsideration. Notably, the trial court did not award defendant counsel fees on the motion or plenary hearing but made an award for only those fees defendant incurred in opposing the motion for reconsideration. Those fees totaled $4,153. After considering the arguments and briefs of counsel on this point, we are satisfied that plaintiff's objections to the counsel fee award are "without sufficient merit to warrant discussion in a written opinion," in accordance with R. 2:11-3(e)(1)(E), and affirm substantially for the reason set forth in the statement of reasons provided by the Honorable Thomas L. Weisenbeck, J.S.C. when granting the award.

Affirmed.

 

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A-5801-05T3

October 9, 2007