GREGORY HURLEY v. SANDRA HURLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2779-03T12779-03T1

A-3242-03T1

GREGORY HURLEY,

Plaintiff-Respondent,

v.

SANDRA HURLEY

(N/K/A MILLER),

Defendant-Appellant.

 

Argued October 19, 2005 - Decided November 17, 2005

Before Judges Weissbard, Winkelstein and Francis.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-1384-97.

Cary B. Cheifetz argued the cause for appellant (Ceconi & Cheifetz, attorneys; Mr. Cheifetz, of counsel; Mr. Cheifetz and Nancy C. Richmond, on the brief).

Lynn Fontaine Newsome argued the cause for respondent (Donahue, Hagan, Klein, Newsome & O'Donnell, attorneys; Ms. Newsome, of counsel; Ms. Newsome and Debra S. Weisberg, on the brief).

PER CURIAM

Defendant wife, Sandra Hurley, n/k/a Sandra Miller, appeals from a post-judgment order terminating plaintiff Gregory Hurley's obligation to pay her alimony and vacating substantial alimony arrears. Both plaintiff and defendant appeal from a separate order in which the court denied their respective requests for counsel fees. We affirm in part, reverse in part, and remand.

I.

Following a lengthy divorce trial, on July 8, 1999, Judge DuPuis rendered an oral decision that she memorialized in a November 22, 1999 judgment (the FJD). Neither party appealed from that judgment, nor do the parties contend on appeal here that the findings underlying that judgment were incorrect. The post-FJD motion judge expressly found that the findings of fact made by Judge DuPuis were "binding upon [her]." The remaining facts upon which the motion judge based her decision were taken from certifications and case information statements (CISs) the parties filed in the post-judgment litigation.

II.

Plaintiff was born June 27, 1956; he obtained an MBA from Harvard in 1983. Defendant was born July 28, 1955; she has a Master's Degree in Special Education. At the time the parties married on August 11, 1984, plaintiff worked as a salesman for Shearson Lehman. He lost that position, but continued to find employment in the securities field. He subsequently obtained a position as a partner with First New Jersey Securities.

Defendant was employed first by United Cerebral Palsy, and later worked with severely handicapped babies on behalf of the Newark Board of Education. The couple's daughter, Cara, was born in July 1987; the parties agreed that defendant would stop working until Cara began attending school. Thus, defendant largely remained at home caring for Cara while plaintiff worked.

Defendant, a skilled tennis player in college, obtained certifications necessary to teach tennis. From 1995 to 1998, she worked approximately twenty hours per week, from April through October, training and teaching tennis. She earned $50 per hour, less a $20 per hour court reservation fee.

The parties separated in 1997. Following the separation, they shared joint legal custody of Cara; defendant remained in the marital home and served as Cara's primary caretaker.

Because the critical issue on appeal concerns alimony, we necessarily examine the parties' financial positions in some detail. Judge DuPuis found that plaintiff's adjusted gross income was $628,155 in 1992; $201,206 in 1993; $421,727 in 1994; $452,805 in 1995; $542,325 in 1996; $1,963,223 in 1997; and approximately $2,700,000 in 1998." In his February 1999 CIS, plaintiff listed $3 million in assets. He earned a gross "base salary" of $150,000, with a large bonus traditionally paid in March the following year. The parties used plaintiff's base salary for living expenses, while the bonus made up for any shortfall in living expenses and paid for vacations and other extraordinary items. Money not spent was invested. The family enjoyed what Judge DuPuis termed "an upper-middle class and expanding lifestyle" and a "somewhat lavish lifestyle."

During the divorce proceedings, defendant produced a CIS claiming a monthly budget for her and Cara of $12,659, or $151,908 per year, which did not include a savings component that she represented was traditionally a large part of the family budget. Judge DuPuis found her budget to be in accordance with the marital standard of living. Plaintiff produced a CIS during the divorce proceedings showing $10,000 in monthly expenses for himself, which was also in keeping with the marital standard of living.

Given the parties' financial status, Judge DuPuis ordered plaintiff to pay $55,000 per year in child support, and awarded defendant $110,000 per year in permanent alimony. Plaintiff was also ordered to save at least $25,000 per year for Cara's education. To arrive at the amount of alimony plaintiff was ordered to pay, the court imputed earned income to defendant of $20,000 per year based on an ability to net $30 per hour teaching tennis, twenty hours per week. The judge also imputed $60,000 per year to defendant in unearned income, representing a hypothetical return on her equitable distribution. Thus, defendant had a total gross income, exclusive of child support, of $190,000 per year ($110,000 + $20,000 + $60,000), which equated to a net annual income of $125,000. The equitable distribution award gave defendant approximately $1,485,000 in assets, while plaintiff received about $2 million in assets.

Notably, the trial judge found that, "even if [plaintiff] makes as little as he did in 1996, $542,000, he can still afford to pay this much alimony and support because, even though he made much more after that, [the family] didn't spend it." Thus, the court relied on plaintiff's 1996 income of $542,000 to set alimony and child support.

The trial court further noted that the total support award, including child support, would meet defendant's and Cara's needs, as identified in defendant's CIS, which claimed annual expenses of approximately $152,000. The award also included a savings component for defendant of $28,000 per year.

Following the FJD, plaintiff failed to meet his financial obligations to defendant. Consequently, in May 2002, defendant filed a motion seeking payment of $130,514.71 in alimony arrears that had accumulated between May 2000 and December 31, 2001. Defendant certified that plaintiff told her that he had no intention of voluntarily meeting his obligations. She also sought payment of $162,535 in equitable distribution plaintiff still owed to her.

Plaintiff cross-moved to modify his alimony obligation and vacate the alimony arrears. He claimed that his income had been dramatically reduced as his position with First New York Securities was terminated in early 2000. After that, he attempted to trade securities on his own through March 2001, but sustained trading losses of over $1 million because the stock market performed very poorly during that period. While plaintiff satisfied his alimony obligation through May 2000, he claimed that he and defendant reached an oral agreement under which he paid her $2500 per month for the remainder of 2000.

In 2001, plaintiff paid his full child support obligation and $2500 per month in alimony. His financial situation had improved, as he had been hired as an "equity derivatives trader" by Merrill Lynch, with an annual base salary of $150,000. He was also guaranteed a "sign on cash bonus" of $700,000, to be paid in March 2002.

Plaintiff submitted a CIS with his motion, listing his 2001 net income as $107,031; and gross year-to-date income through April 30, 2002, as $50,000; his net earned income during that period was $33,455. He also received his $700,000 bonus from Merrill Lynch in January 2002, from which he netted $444,133. Plaintiff claimed that combined monthly expenses for defendant, Cara, and him were $24,123. His net worth was $1,252,168, a reduction from his nearly $2 million in net worth in July 1998. He remarried in June 2002.

Plaintiff's tax returns also showed a change in his financial situation. His federal tax returns showed:

Year

Gross Wages

Capital Gain/Loss

Adjusted Gross

Income

1999

$94,226

$1,238,347

$993,673

2000

$275,839

($1,006,658)

$212,506

2001

$117,249

($ 197,141)

$ 97,605

2002

$867,598

(includes $700,000 bonus)

($ 183,568)

$768,797

On July 5, 2002, the motion judge denied plaintiff's motion for a reduction in his alimony obligation because he received his $700,000 bonus from Merrill Lynch that year. Thus, plaintiff's income that year remained above the $542,000 annual gross income level that Judge DuPuis relied on to establish alimony in the FJD. The motion judge ordered plaintiff to pay the $162,535 he still owed to defendant as equitable distribution.

In February 2003, plaintiff again moved for a reduction in his alimony obligation and to vacate his alimony arrears. He claimed that given the stock market's poor performance in 2002, he received a bonus of only $232,500 for that year, which was paid in early 2003. His total gross income for 2003 thus included his $150,000 base salary plus his bonus, for a total of $382,500. He claimed his total net income would be about $243,758 for 2003, making it impossible for him to pay $110,000 in alimony, $55,000 per year in child support, and $50,000 he owed for Cara's education fund, which he had not funded in 2002 or 2003. Further, his net worth had declined from about $1.9 million in 1999 to about $472,701 at the time of the motion. He claimed living expenses for his new wife, stepchild, and himself of $25,824 per month. He also purchased a home with his new wife that was valued at $340,000, subject to a $225,000 mortgage.

In opposition to plaintiff's motion, defendant, who denied that she agreed to accept less alimony than the FJD required, sought payment of alimony arrears and opposed plaintiff's motion to modify his support obligation.

On April 4, 2003, the motion judge found that plaintiff had "established a prima facie case for reduction of his alimony and child support obligations." The judge ordered discovery and scheduled oral argument "as to pendente lite alimony," and a plenary hearing.

Defendant submitted a CIS in which she claimed her total earned income for 2002 would be $900, from tennis lessons. She listed shelter expenses of $3184 per month, transportation costs of $1106 per month, and $14,619 per month in personal expenses for Cara and her, for total monthly expenses of $18,909. She claimed assets of over $1 million, including a $750,000 mortgage-free home and $470,000 in equitably distributed assets, with minimal debt. She also supplied statements from her Charles Schwab checking account, which showed that she spent between $4400 and $13,000 per month from that account between May and November 2002. Further, while savings were a part of the marital lifestyle, defendant did not include a savings component in her CIS.

Defendant also submitted a report from a CPA, who concluded that in 2002, plaintiff had "net residual income" after paying his taxes and support obligations of about $382,219, leaving him with $243,691 after meeting his own expenses. In 2003, plaintiff's net residual income would be $122,493. The CPA concluded that plaintiff had "the ability to address his alimony and child support obligations, tax liability and his own . . . costs, without the need of any temporary reduction."

Plaintiff responded with a report from another CPA, who had "no difference of opinion" with defendant's expert regarding plaintiff's 2003 projected net residual income. Nonetheless, plaintiff's CPA rejected defendant's expert's conclusion that plaintiff had $243,691 left in 2002 after paying support, taxes, and his own expenses. Rather, it was his conclusion that defendant's expert failed to consider that plaintiff paid defendant approximately $160,000 in July 2002 as part of her equitable distribution award, and also contributed $75,000 to Cara's educational trust. Plaintiff's expert consequently concluded that plaintiff's net surplus in 2002 was only $8691.

On July 8, 2003, the motion judge set plaintiff's pendente lite alimony obligation at $1300 per month. In an accompanying letter opinion, she rejected defendant's expert's calculations, noting that he had failed to take into account the large payments plaintiff made to defendant and Cara. The judge also found that defendant's budget "would require net income of $226,920 . . . which exceeds [her] reported gross income from all sources plus child support." Many of the items in defendant's budget were "anticipated expenses," which when removed, left a total monthly need of only $15,732.33. In short, the judge found that "the budget in [defendant's] CIS cannot be relied upon by this court." Consequently, the court set defendant's budget at $8000 per month pendente lite based on her spending pattern from May 2002 to November 2002 as shown in her Schwab checking account.

Before the plenary hearing was to begin on September 22, 2003, the parties' attorneys informed the judge that they had agreed on a joint set of exhibits for the court to consider. They also informed the court that if the parties testified at the hearing, they would simply affirm what they already stated in their certifications. They therefore waived a plenary hearing and relied upon their prior submissions; they also agreed to submit written summations.

In his CIS, plaintiff claimed gross income through August 31, 2003, of $100,000, with a total net income of $73,225. In addition, he received a $232,500 bonus from Merrill Lynch ($143,868 net) in January 2003. His total combined monthly expenses, including the mortgage on the new home he purchased with his second wife, were $27,935.

Based on the documentary evidence before her, the motion judge issued a letter opinion on December 4, 2003, in which she made the following findings and conclusions. At the time of the FJD, defendant received $1,485,000 in assets, while plaintiff received about $2 million. The motion judge recognized that Judge DuPuis set plaintiff's alimony and child support obligations at $110,000 and $55,000, respectively, based on defendant's marital expenses and the $20,000 in earned income and $60,000 in unearned income imputed to her. As long as plaintiff had annual income of $542,000, he could afford to meet those obligations.

Because the parties agreed that no facts had changed since the motion judge's July 8, 2003, letter opinion, in which she found that plaintiff's total compensation for 2003 would be $382,500 ($150,000 salary plus $232,500 bonus), the judge reiterated that plaintiff presented a prima facie case of changed circumstances warranting a reduction in his alimony obligation. She further noted that plaintiff's net worth had decreased substantially since the divorce. In short, the judge found that plaintiff had "established a case for a reduction of his support obligation based on both assets and income."

The motion judge analyzed defendant's need for support. She noted that defendant had not filed an amended CIS, and had agreed that there were no changes of financial circumstances since entry of the July 8, 2003, order. Further, the judge said that while defendant and Cara needed $12,659 per month to live when the divorce judgment was entered, defendant's latest CIS showed a need of $18,910, which would have required more net income than she received from all sources, including child support.

Based on the monthly statements from defendant's Schwab checking account, the court found that she spent, on average, less than $8000 a month. Because child support remained stable, the judge surmised that "the reduced spending must be attributable to [defendant's] expenses."

The motion judge then focused on defendant's assets. In her last CIS, defendant claimed over $1 million in assets, mainly from her home ($750,000 mortgage-free) and the Schwab account valued at $420,000. Defendant, however, failed to list several assets which, when added to her listed assets, left her with "over $600,000 plus her home valued at $750,000. Her known net worth now exceeds that of [plaintiff] and she is still owed her equitable share of retirement assets."

The court also found that because Cara was then sixteen, defendant should be able to teach tennis more regularly. Consequently, the court concluded that defendant could earn $50 per hour, less $20 per hour in costs, thirty-five hours a week, fifty weeks per year, for a total annual imputed income of $52,500. Based on that figure, and defendant's imputed unearned income, the judge concluded that defendant's net weekly income would total $841, or $3644 per month. When added to child support of $4583 per month, defendant and Cara had a total net income of $8227 per month, which exceeded defendant's $8000 monthly budget that the court computed from the spending in the Schwab account.

Because plaintiff's ability to earn had been reduced, while defendant's financial assets and ability to earn had increased, and given defendant's reduced needs, the court found that "[defendant] no longer needs alimony to maintain her lifestyle. [Plaintiff's] motion for a downward modification of his alimony obligation is granted. His obligation to pay current alimony is terminated as of September 30, 2003."

The judge next addressed the alimony arrears. She rejected plaintiff's claim that there had been an oral agreement in which defendant would accept less alimony than plaintiff was ordered to pay. The court also found that plaintiff had paid defendant less than required by the FJD.

To determine if plaintiff could pay the arrears, the judge analyzed the reports of the two accountants, and plaintiff's September 18, 2003 CIS, in which he listed his monthly budget at $13,255. The judge found that while plaintiff's net income would total about $288,980 in 2003, his needs totaled $160,000 per year, and he owed $80,000 in child support and educational trust fund payments, leaving him with $50,000 in residual income. Thus, if defendant had a need, plaintiff "could afford to pay [the arrearages] on an installment basis going forward."

Nonetheless, the judge vacated the arrears. She reasoned that defendant's assets had increased, and she had little debt. The court used the same estimated $8000 in expenses for arrears calculations that she used for her calculations pertaining to plaintiff's request for an alimony reduction. Also, using defendant's tax returns, the judge found her net income to be about $45,000 in 2000 and $41,000 in 2001; after adding the $55,000 child support award that gave defendant approximately $100,000 each year. The judge concluded that this amount met defendant's and Cara's needs of about $8000 per month in expenses without the earned income imputed to defendant by Judge DuPuis. Based on what the judge concluded was an "unrealistic case information statement" that defendant had submitted, the judge had "no option" but to use defendant's actual spending figures from May 2002 through November 2002. Based on those numbers, the court found that defendant did not need the alimony arrears that had accumulated through 2001.

III.

We turn first to the motion judge's order that terminated plaintiff's alimony obligation. Alimony obligations are subject to review and modification based on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Those changed circumstances may include a decrease in the supporting spouse's income. Id. at 151. Applications for modification of an established alimony obligation are informed by the dependent spouse's needs, that spouse's ability to contribute to his or her own support, as well as the supporting spouse's ability to maintain the dependent spouse at the former marital standard of living. Miller v. Miller, 160 N.J. 408, 420 (1999).

In reviewing the application for reduced alimony, the court must identify the marital standard of living, which is "critical . . . to any subsequent assessment of changed circumstances when an adjustment to alimony is sought." Crews v. Crews, 164 N.J. 11, 25 (2000). If changed circumstances have been demonstrated, an examination of the supporting spouse's financial condition becomes material. Id. at 28, 30. While a supporting spouse's earnings at the time of the application are not determinative as to marital lifestyle, they are "relevant when determining whether, and the degree to which, the supporting spouse can support the dependent spouse in maintaining a lifestyle reasonably comparable to the standard of living enjoyed by the parties during the marriage." Id. at 27.

Relevant here, the court found that since the FJD, plaintiff's income had dropped below the $542,000 annual income level Judge DuPuis found would be sufficient to allow plaintiff to meet his full alimony and child support obligations. Plaintiff's financial assets had also decreased substantially. We agree with the motion judge that given these changes, plaintiff established a prima facie case for a reduction in his alimony based upon changed circumstances.

Next, then, we turn to the methodology employed by the motion judge to arrive at her decision to terminate plaintiff's alimony obligation. First, we do not find support in the record for the judge's decision to impute $52,500 in annual income to defendant. When a trial judge's findings are manifestly unsupported by the record, that determination constitutes an abuse of discretion. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). That is what happened here.

While a court may impute income to a party for support purposes when the party is, without just cause, voluntarily underemployed or unemployed, Caplan v. Caplan, 182 N.J. 250, 268 (2005); Pressler, Current N.J. Court Rules, Appendix IX-A(12) to R. 5:6A at 2310 (2006), the court must also consider the length of the marriage and the parties' lifestyle during the marriage. See Khalaf v. Khalaf, 58 N.J. 63, 70 (1971). After a court decides that income should be imputed, it must decide how much to impute. In so doing, a court should consider the guideline factors, "as well as any other evidence related to each party's ability to earn income. That evidence includes a party's responsibility for care of children." Caplan, supra, 182 N.J. at 270.

Here, defendant has a Masters Degree in Special Education, a certification to teach tennis, and is ordained as a "shaman." Based on these skills, Judge DuPuis initially imputed income to her of $20,000 per year, based on her experience teaching tennis for twenty hours per week from April through October, at a net rate of $30 per hour ($50 fee less $20 for court time).

In addition to considering those findings, the motion judge properly considered the "New Jersey Department of Labor Occupational Employment Statistics Survey," identified in the court rules as an appropriate source to consider in imputing income. See Pressler, Current N.J. Court Rules, Appendix IX-A(12)(a) to R. 5:6A at 2310 (2006). The judge found that, under that survey, the "median hourly wage" for "instructors, coaches, sports and physical training in Union County . . . was $10.70 or $428 per week." Nevertheless, the motion judge believed that defendant had an ability to earn more because in the past she had earned $30 net per hour teaching tennis, twenty hours per week. And, because Cara was sixteen years old at the time of the application, the court concluded that defendant should be in a position to work full-time there was no reason "why [she] could not work 35 hours per week at this point if she chooses to do so. Therefore, earned income of $52,500 will be imputed to [defendant] on the basis of the record presented (35 hours x $30/hr x 50 wks)."

While we understand the judge's methodology to arrive at her conclusion, the record contains no evidence that defendant had the opportunity, as of September 2003, to work fifty weeks a year, thirty-five hours per week, teaching tennis. She never worked that amount of hours in the past; nor does the record show that there was a market for her services full-time. Defendant's April 2003 CIS showed that she earned $125 for each of two six-week sessions she taught at Union County College, for a total of $250; and $325 for each of two three-week sessions, $650; for a total of $900 in income in 2003 teaching tennis. It is also significant that other than her limited experience teaching tennis, defendant had not worked since Cara was born, more than sixteen years earlier. As the Supreme Court noted in Khalaf, supra, 58 N.J. at 70, "[h]er husband cannot now wipe the slate clean and put aside those [sixteen years]."

Simply put, given the length of time defendant was out of the work force, and the Department of Labor statistics that show that a sports instructor is paid an average of only $10.70 per hour, or $478 a week, the record does not support the motion judge's decision that as of September 2003 defendant could work full time, fifty weeks per year, netting $30 per hour teaching tennis. While defendant may not simply stay home and have no income imputed to her, the record here does not support the motion judge's conclusion that she can now work full time as a tennis instructor. Consequently, a remand is necessary to allow the Family Court to recalculate the amount of earned income to be imputed to defendant.

Next, we address the court's decision to terminate alimony in its entirety. As we noted previously, in considering a motion to reduce alimony, the court must identify the marital standard of living, which is "critical . . . to any subsequent assessment of changed circumstances when an adjustment to alimony is sought." Crews, supra, 164 N.J. at 25. The same factors applied in initially establishing alimony should be considered on a motion for a modification of a support order; namely, the dependent spouse's needs, that spouse's ability to contribute thereto, and the supporting spouse's ability to maintain the dependent spouse at the former standard of living. Miller, supra, 160 N.J. at 420. In establishing alimony, a court may "take into account assets received by either party in the equitable distribution of the marital property." Ibid. To vacate a trial judge's findings concerning alimony, an appellate court 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 after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).

We begin with the trial judge's findings. Judge DuPuis, in establishing plaintiff's alimony obligations, described the family's standard of living as "upper-middle-class and expanding." The trial judge reviewed the statutory factors related to alimony contained in N.J.S.A. 2A:34-23(b), and, as noted, awarded defendant $110,000 per year in permanent alimony. In making that award, the judge noted that in 1996 plaintiff earned $542,000, and concluded that at that income level he could still afford to pay the alimony and child support ($55,000 per year) obligations. The court further noted that even though plaintiff earned more than that in subsequent years, the family did not spend it. Thus, the court set plaintiff's alimony obligation based on the $542,000 salary, because that level of alimony was "more than sufficient to meet [defendant's] needs." Neither party appealed from that decision.

In her December 4, 2003 opinion terminating plaintiff's alimony obligation based on his reduced income and assets, the motion judge reiterated Judge DuPuis' findings and conclusions, which she noted were binding on her given the lack of an appeal. Then, based on the parties' documented submissions, the motion judge found that plaintiff's earned income in 2003 was $382,500, which included his $150,000 base salary and $232,500 bonus. The judge found that the reason for the substantial decrease in his income was the large drop in his bonus. In addition, although plaintiff had received $2 million in equitable distribution, his gross assets by September 2003 were valued at $950,000 and his net worth had decreased to about $385,000.

The motion judge also found that defendant's April 2003 CIS was not reliable as to her need for alimony, both because it contained a large number of anticipated expenses, and because the expenses listed "exceeded [her] reported gross income from all sources plus child support." Thus, rather than using the information contained in the CIS, the court relied on monthly statements from defendant's Schwab checking account, which indicated that over a period of seven months she spent an average of $8000 per month on her and her daughter's needs.

Finally, the judge considered defendant's net assets of about $1.35 million, which exceeded those of plaintiff. The motion judge then calculated that defendant's total income of $52,500 per year (imputed earned income), and $6390 (actual unearned income), when added to the child support of $4583 per month, gave her and Cara $8227 per month. Finding their need to be $8000 per month based on the spending through the Schwab account, and that plaintiff's "assets and his ability to earn decreased dramatically, and [defendant's] assets and ability to earn have increased since the judgment of divorce was entered," the motion judge terminated plaintiff's alimony obligation.

First, given our determination that the record does not support the imputation to defendant of $52,500 in annual income, defendant's post-FJD income needs to be recalculated. That said, we also take issue with the motion judge's failure in her analysis to give sufficient weight to the parties' marital lifestyle, and to determine what sum of money defendant needed at the time of the motion to maintain that lifestyle. The trial judge found that defendant and Cara needed over $12,500 per month to maintain the marital standard of living. The motion judge rested her decision that defendant no longer needed alimony on her finding that defendant and Cara only needed $8000 per month to meet their needs. The motion judge, however, did not satisfactorily explain how $8000 per month would allow defendant and Cara to maintain the same lifestyle that it took $12,500 per month to maintain during the marriage. The motion judge simply assumed that the same standard of living could be achieved with income of $8000 per month. The judge appears to have arrived at her conclusion based primarily on defendant's reduced spending as shown in the seven months' use of the Schwab account. While we recognize that the judge had limited evidence upon which to make her decision, she failed to discuss at all how $8000 could cover the same expenses that $12,659 was needed to cover during the marriage. The court failed to discuss how, if at all, defendant's standard of living had changed since the divorce.

Finally, while the motion judge disregarded defendant's budget out of hand, she made no findings concerning plaintiff's increased costs of approximately $3000, from $10,000 found by Judge DuPuis to $13,000 as shown in his September 18, 2003 CIS.

In sum, the decision to terminate alimony in its entirety was an abuse of discretion.

IV.

Next, we review the motion judge's decision not to require plaintiff to pay defendant the over $130,000 in alimony, which accrued between May 2000 and December 31, 2001. The motion judge found that the alimony was not necessary because defendant "no longer needs alimony to maintain her lifestyle."

Whether prior support orders should be enforced, and the extent to which a spouse should be required to pay arrearages, lies within the court's discretion. Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Because support obligations do not automatically vest as they become arrears, but are subject to the court's control, such matters are addressed to the sound discretion of the trial court. Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981), superseded by statute, N.J.S.A. 2A:17-56.23a, as stated in Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).

Here, we are not satisfied that the record supports the motion judge's decision to vacate the arrears in total. First, at the time the arrears were due, plaintiff maintained bank accounts of over $1 million. In 2002, he had a gross income of over $860,000. It was in that year that he purchased a new home for his new family. Furthermore, as previously noted, just because defendant was able to maintain herself and her child on $8000, does not justify vacating the over $130,000 in alimony that plaintiff intentionally failed to pay. The motion judge failed to discuss whether the arrears were needed to allow defendant to maintain the marital lifestyle, rather than to meet her immediate needs.

What is more, plaintiff intentionally withheld his alimony payments during an extended period of time when he was in a financial position to pay them. To vacate the arrears in their entirety under these circumstances encourages plaintiff and others not to comply with their alimony obligations, but to wait and see if the parties' financial positions change to the extent that the payment will no longer be necessary.

V.

Finally, we address both parties' challenge to the motion judge's decision to deny their requests for counsel fees. We have reviewed the allegations in light of the existing facts and find that these arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(A) & (E). We affirm substantially for the reasons expressed by the motion judge.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

We are mindful that the parties waived a plenary hearing. We question, however, how, based on certifications alone, the motion judge could make what were essentially credibility findings when she found defendant's 2002 budget incredible and based her view of defendant's expenses for the year on a limited seven-month period of spending as shown in the Schwab account.

(continued)

(continued)

27

A-2779-03T1

November 17, 2005