THOMAS A. SOBE v. ANNE E. SOBE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0394-04T10394-04T1

THOMAS A. SOBE,

Plaintiff-Appellant,

v.

ANNE E. SOBE,

Defendant-Respondent.

 

 

Argued October 12, 2004 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, Docket No. FM-12-1484-00.

Lydia Fabbro Keephart argued the cause

for appellant (Pellettieri, Rabstein, and

Altman, attorneys; Ms. Keephart of counsel;

Nicole J. Huckerby, on the brief).

H. William Bressaw, argued the cause

for respondent.

PER CURIAM

Plaintiff Thomas A. Sobe appeals from the order of the Family Part denying his post-divorce judgment motion seeking a downward modification of his spousal support obligation. The original alimony award was set by the court by virtue of a negotiated settlement. The court denied plaintiff's motion based on a finding of no substantial change in circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). We reverse. We are satisfied that, in determining plaintiff's current income, the motion judge erroneously included income received by plaintiff from a previously equitably-distributed pension.

These are the salient facts. The original amount of $600 weekly alimony payments was negotiated and determined by the parties in June of 2001, when plaintiff's annual salary was $87,000. At the time the court entered the divorce judgment, plaintiff was employed as a consultant. He was also receiving retirement payments from his pension from A.T.&T. This pension was also a marital asset, and was therefore equitably distributed by the court as part of the final judgment of divorce.

Shortly after the divorce, plaintiff was terminated from his consulting position. This was not unexpected. In fact, the settlement agreement between the parties explicitly reflected plaintiff's right to seek a downward modification of his support obligation, in implicit recognition of this eventuality.

In his letter-opinion denying plaintiff's application for a reduction in alimony, the motion judge made the following findings of facts:

Plaintiff is a Data Base Administrator and works with mainframe systems. He has done this for his entire career in the computer field (20-25 years). He has not been a programmer since 1984. It is uncontroverted that the number of entities using mainframe systems is constantly dwindling. They are no longer used at AT&T, Plaintiff's employer for many years. As this trend continues, the universe of possible employers, at his present level of salary, also dwindles. Additionally, it would appear that Plaintiff's age militates against his getting a job in the Information Technology field. Dr. Kincaid's testimony that there is age discrimination in this field, in spite of its illegality, was uncontroverted and not even attacked on cross-examination. Kincaid, Plaintiff's earning capacity expert, testified that if there were jobs available, Plaintiff could earn between $52,000.00 and $61,000.00 per year. It appears that Plaintiff's earning potential is in a downward trend because of his age, his experience, his training, and his industry as a whole.

The court further found that plaintiff's 2004 income, derived exclusively from his employment, was $51,500. Thus, based on these findings, plaintiff successfully proved that his annual income had been reduced by $35,500 since the $600 weekly alimony award was established. Despite these findings, the court denied plaintiff's motion, because, when combined with his pension benefits, his annual "income" was actually $84,000, or "approximately 95% of the amount used to set alimony, in the Final Judgment." For purposes of this motion, this method of calculating plaintiff's income is erroneous as a matter of law.

N.J.S.A. 2A:34-23(b)(13) provides that:

When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.

This point was also made clear by the Supreme Court in Innes v. Innes, 117 N.J. 496, 504-05 (1990). The fact that, in Innes, the pension benefits were distributed through a QDRO is inconsequential. The statute's unequivocal injunction is applicable in every situation where, as here, a pension asset has been equitably distributed.

The order of the Family Part is reversed. The matter is remanded for the court to determine plaintiff's motion consistent with this opinion.

 
Reversed and remanded.

(continued)

(continued)

4

A-0394-04T1

October 28, 2005