JOHN C. BATTISTA v. CAROL D. BATTISTA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1853-04T31853-04T3

JOHN C. BATTISTA,

Plaintiff-Appellant,

v.

CAROL D. BATTISTA,

Defendant-Respondent.

 

Argued December 7, 2005 - Decided

Before Judges Weissbard, Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FM-17-240-98.

Robert J. O'Donnell argued the cause for appellant.

Tracey F. Oandasan argued the cause for respondent (Acton, Point & Oandasan, attorneys; Ms. Oandasan, on the brief).

PER CURIAM

Plaintiff John Battista appeals from the Family Part's September 17, 2004, and October 29, 2004 orders, respectively denying his request to modify or terminate alimony and awarding defendant Carol Battista $4000 in counsel fees. We affirm.

The parties were married in 1972 and divorced by final judgment (the FJD) of August 6, 1999. The FJD required plaintiff to pay $200 per week to defendant in permanent alimony, plus $183 per week in child support for E.B., one of two children born of the marriage. After E.B. was emancipated effective December 2000, the Family Part granted defendant's motion to increase plaintiff's alimony obligation from $200 per week to $400 per week. Plaintiff appealed and we affirmed. Battista v. Battista, No. A-4619-00 (App. Div. Nov. 12, 2002).

Plaintiff retired from his job at Verizon in August 2004 at the age of fifty-six. He then moved to terminate or modify his alimony obligation. Following a plenary hearing, Judge Farrell, in a written opinion on September 17, 2004, denied plaintiff's application. In his October 29, 2004 opinion the judge awarded defendant $4000 in counsel fees. On appeal, plaintiff raises the following legal arguments:

I. THE TRIAL COURT FAILED TO APPROPRIATELY CONSIDER THE TESTMIONY AND EXHIBITS PRESENTED AT THE PLENARY HEARING WHEN WEIGHING THE FACTORS USED TO DETERMINE WHETHER THERE SHOULD BE A TERMINATION OR MODIFICATION OF ALIMONY WHERE THE PAYOR VOLUNTARILY RETIRED.

II. THE TRIAL COURT FAILED TO ADDRESS PLAINTIFF'S REQUEST FOR A MODIFICATION OF HIS SUPPORT OBLIGATION AND DID NOT CONSIDER THE FACTORS SET FORTH IN N.J.S.A. 2A:34-23(B).

III. IT WAS INAPPROPRIATE FOR THE TRIAL COURT TO AWARD COUNSEL FEES WHERE THERE WAS NO TESTIMONY BY THE DEFENDANT REGARDING ANY OF THE FACTORS SET FORTH IN R. 5:3-5(c), NOR ANY ANALYSIS OF THOSE FACTORS BY THE TRIAL COURT.

We have carefully considered plaintiff's arguments in light of the applicable law. We conclude that his contentions are without merit and do not warrant extended discussion in a full written opinion. R. 2:11-3(e)(1)(A)&(E). We affirm substantially for the reasons expressed by Judge Farrell in his written opinions. The judge's findings were supported by the substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We add only the following.

"[O]rders pertaining to alimony or other support 'may be revised and altered by the court from time to time as circumstances may require[.]'" Gibbons v. Gibbons, 86 N.J. 515, 525 (1981) (quoting N.J.S.A. 2A:34-23); see also Lepis v. Lepis, 83 N.J. 139, 157 (1980). "The burden of persuasion is on the obligor." Storey v. Storey, 373 N.J. Super. 464, 469 (App. Div. 2004). A party seeking modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Factors to consider to determine whether a reduction or termination of alimony is warranted upon the retirement of a party were examined in Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992). Speaking for the court, Judge, now Justice, Long, said:

Whether circumstances have really changed so as to warrant modification requires a court to study the parties' financial condition at the time of the divorce, as well as at the time of the application. . . . Where the change is involuntary, all that is required is an analysis of the alterations in the parties' financial circumstances. However, where the change is a voluntary one, other considerations come into play.

. . . .

We . . . have concluded that considerations enunciated in In re Marriage of Smith, 77 Ill. App.3d 858, 862-63 . . . (App. Ct. 1979) are a good starting point:

Relative factors are the age, health of the party, his motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement and the ability of the other spouse to provide for himself or herself.

"[R]easonableness" of the early retirement should be a factor, as should the expectations of the parties and the opportunity of the dependent spouse to prepare to live on the reduced support. . . .

[E]ven in a case in which the retiring spouse has been shown to have acted in good faith and has advanced entirely rational reasons for his or her actions, the trial judge will be required to decide one pivotal issue: whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse. Only if that answer is affirmative, should the retirement be viewed as a legitimate change in circumstances warranting modification of a pre-existing support obligation.

Thus, where a payor spouse has substantial reasons for retiring (i.e., health concerns) and the effect on the payee spouse is minimal (due, for example, to other available income, qualifying for social security, or new employment) the balance will be struck in favor of the payor. Where, on the other hand, the payor spouse simply wants a new life and the payee spouse will become destitute without support, the payee's interests will prevail. Where the interests are in equipoise, the payor spouse's application will fail because he or she is unable to show that the advantage substantially outweighs the disadvantage to the payee.

[Id. at 355, 357-58.]

In this case, Judge Farrell meticulously applied the Deegan analysis. In arriving at his conclusion, he made the following findings:

At trial, Plaintiff testified that he received $95,000.00 in gross severance pay which was reduced to approximately $65,000.00 after taxes. He used those proceeds to pay off credit card debt, remodel his home, buy furniture and for day-to-day living expenses. As of the last date of the hearing herein (June 30, 2004), the Plaintiff remained unemployed although he testified that he had "feelers out". . . .

Plaintiff lives with his fiancé[e] who helps defray some of his expenses. He had the opportunity to accept an annuity which would pay him up to $2,964.00 per month[;] however, Plaintiff testified that he felt that he could reinvest his lump sum payment for a greater return.

Defendant continues to work with earnings which are comparable to her earnings during the marriage. She had some modest investments, including some monies which come from her interest in her parents' home. Unfortunately, Defendant had a reoccurrence of cancer in December, 2003 which resulted in surgery and chemotherapy. This resulted in some loss of income and additional medical expenses in 2003. She receives little or no income from overtime and has modest balances in her checking accounts.

. . . .

Plaintiff paints a picture of a "forced" retirement. That is, he suggests that although his retirement was "voluntary", he had little choice in the matter. . . . [I]n reality he was not able to offer any proof that any employee was terminated after not applying for early retirement. There is nothing in the record to suggest that Plaintiff could not have continued working for Verizon had he not chosen this option.

There is another, more important factor to weigh in considering the reasonableness of Plaintiff's decision. He chose to "cash out" his pension and reinvest it in an annuity which cannot be withdrawn until he is 59 1/2 years of age. He received a severance payment that equated to approximately 1 year of his gross income. In reality, that payment would cover his living expenses through 2004. In other words, the Plaintiff exacerbated his financial situation and now comes before the Court requesting a reduction or termination of alimony because he has no income.

The Defendant had little or no opportunity to prepare to live on reduced support. Plaintiff arbitrarily terminated his support payments to Defendant without any court order or her consent. Defendant's testimony and certification established that she has no opportunity for increased earnings.

Plaintiff suggests that the parties planned for him to retire as early as the age of 55 years. Nothing in the record supports this contention. I acknowledge that the parties discussed such an early retirement at some point in their marriage. I find that this was nothing more than "wishful thinking" and that they did not carry out any plan to move toward such a retirement prior to their divorce.

My weighing of the Deegan factors suggests that the Plaintiff's early retirement was not "reasonable" and therefore, his application should be denied. Even if my assessment of these factors is incorrect, I find that Plaintiff's advantage to retiring does not substantially outweigh the disadvantage to the Defendant. I agree that the proofs establish that the Defendant can cover her expenses. She has been able to do this through her earnings, her alimony and some modest interest earned through investments. These investments are based on equitable distribution as well as some monies received in payment of her interest in her family home. A reduction and/or termination of alimony would be devastating to Defendant. I would suggest that the Defendant's lifestyle could properly be classified as "frugal". Our courts have recognized that parties should not be punished for living a reasonable lifestyle which permits modest savings.

These findings are well supported by the plenary hearing record. As we noted in our prior decision, defendant, in her mid-fifties, has little prospect for increased earnings. Nor did she, as Judge Farrell pointed out, have any opportunity to prepare to live on reduced support. Judge Farrell found that plaintiff's advantage in retiring did not substantially outweigh the disadvantage to defendant. That conclusion is entirely consistent with the facts.

Plaintiff complains that the Family Part failed to consider a reduction in alimony, focusing simply on whether the proofs would support a termination of alimony. That argument is not supported by either the record at the plenary hearing or Judge Farrell's September 17, 2004 opinion, in which he noted: "A reduction and/or termination of alimony would be devastating to defendant." (our emphasis).

Finally, plaintiff argues that the trial court did not give proper consideration to that portion of N.J.S.A. 2A:34-23b, which indicates that to calculate alimony the court shall not consider income generated by a share of a retirement benefit that has been treated as an asset for equitable distribution. Plaintiff argues that because the final judgment of divorce equitably distributed his pension, the amount of income he receives from his pension may not, in any event, be considered towards alimony. While plaintiff is correct in his reading of the statute, that does not alter the court's conclusion that plaintiff was unable to demonstrate that the advantage he gained by retiring substantially outweighed the disadvantage to defendant that would be brought about by the reduction or termination of her alimony. The court's references to plaintiff's pension income were properly confined to its consideration of that threshold issue. In other words, though the motion judge did not discuss that section of N.J.S.A. 2A:34-23b, that omission was harmless because plaintiff was otherwise unable to meet his burden under Deegan.

 
Plaintiff's arguments that the counsel fee award should be reversed are completely without merit and do not warrant discussion. R. 2:11-3(e)(1)(A)&(E).

Affirmed.

Judge Sabatino was not present for oral argument, but has reviewed the tape recording of the session.

(continued)

(continued)

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A-1853-04T3

December 15, 2005