STEVEN GARRETT v. DAWN GARRETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0785-05T10785-05T1

STEVEN GARRETT,

Plaintiff-Appellant,

v.

DAWN GARRETT,

Defendant-Respondent.

 
________________________________________________________________

Submitted October 17, 2006 - Decided

Before Judges Weissbard and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-195-00.

Robert A. Abrams, attorney for appellant (Mr. Abrams, of counsel; Laurie Gluck Ruben, on the brief).

Dawn Garrett, respondent pro se.

PER CURIAM

In this post-judgment matrimonial action, plaintiff Steven Garrett appeals from a September 23, 2005 order of the Family Part denying his motion to terminate his alimony obligation to his ex-wife, defendant Dawn Garrett. After the notice of appeal was filed, we ordered a limited remand for the purpose of having the judge make findings of fact and conclusions of law as required by R. 1:7-4. Thereafter, the judge filed a written decision complying with the remand.

I

The background facts may be briefly stated. The parties were married on September 1, 1982. Two children were born of the marriage: Stephanie Dawn Garrett, born April 4, 1984, and Timothy Steven Garrett, born November 22, 1986.

Defendant, a high-school graduate, was a stay-at-home mother for ten years. She began working part-time as a receptionist in 1994. In 1998, after the parties separated, defendant began working full-time in her receptionist position. Although there is no documentation in the record, in his certification plaintiff claims that he earned approximately $60,000 in 1999; in his brief he claims he earned $50,000. Although plaintiff claims that defendant earned $13,000 annually when the judgment of divorce was entered, defendant's Case Information Statement (CIS) and her 1999 tax return indicate that she earned $26,530 in 1999.

A dual Final Judgment of Divorce was entered on February 10, 2000, incorporating a Property Settlement Agreement (PSA). Both parties were represented by counsel. Pursuant to the PSA, the parties were to share joint legal custody of the children, who were to reside primarily with defendant. Plaintiff was to pay a total of $150 per week in child support. Some time later, child support was increased to $168 per week.

Until such time as the marital home was sold, plaintiff was to pay defendant $200 per week in alimony. Upon sale of the home, alimony was to be reduced to $125 per week, which was the amount in effect at the time of the proceedings under review.

The PSA stated that:

[a]limony shall terminate upon the death of either Steven Garrett or Dawn Garrett, and upon the re-marriage of Dawn Garrett or her cohabitation with an unrelated person in an economically interdependent relationship.

The PSA further provided that:

[a]limony . . . shall be subject to modification as provided by the laws of the State of New Jersey. . . .

In 2001, defendant enrolled in an insurance licensing program. While working full-time, caring for the children, and maintaining her home, defendant attended class two evenings per week for five months. Having passed the necessary examination, defendant received her insurance sales license on June 9, 2001. At the age of thirty-seven, she began her career as a Personal Lines Customer Service Representative, employed in her new role by the same company for which she had been a receptionist.

II

Before the trial court, plaintiff argued that alimony should be terminated because: (1) both he and defendant now have similar incomes; (2) plaintiff's income has been decreasing and he can no longer afford to pay alimony; and (3) there was no reason that defendant should have received permanent alimony. In his certification, dated July 3, 2005, plaintiff, a high school drop-out, stated that he was a tool and die maker and that he had recently secured a job earning approximately $42,000 per year. For tax year 2004, defendant earned $37,492, not including a one-time IRA withdrawal or alimony. Thus, for 2004, defendant's employment income plus alimony income totaled $43,992.

On appeal, plaintiff asserts that: (1) the trial court erred in denying his application to terminate alimony; (2) the trial court erred by failing to consider the marital standard of living; (3) discovery and a plenary hearing should have been ordered; and (4) the trial court erred in concluding that plaintiff failed to make a prima facie showing of changed circumstances based on the finding that he was remarried and enjoying the benefit of two incomes.

In response, defendant, appearing pro se, argues that: (1) her cost-of-living has increased due to increased housing and utility costs, as well as increased financial burdens related to the children's needs, to which plaintiff has not contributed, including the fact that defendant pays all college costs for the children; (2) she is not leading a superior lifestyle as compared to that enjoyed during the marriage; (3) plaintiff's reduced wages are a direct result of his voluntary underemployment; and (4) termination of alimony would have a devastating effect on her and the children.

III

The judge, in denying plaintiff's application, noted at the outset that plaintiff was "asking the Court to modify the Judgment of Divorce which was entered into only five years ago." We observe that, while not entirely irrelevant, the period of time elapsed between a motion for modification and the final judgment is not dispositive. Changed circumstances may come about even in a short period of time following the divorce; if so, the motion should be granted.

The judge also referenced Lepis v. Lepis, 83 N.J. 139, 152-53 (1980), the seminal case on changed circumstances, noting that "[a] modification of support becomes necessary whenever changed circumstances substantially impair the dependent spouse's ability to maintain [a lifestyle reasonably comparable to the one enjoyed during the marriage]." While the language used by the judge is found in Lepis at the cited pages, it is immediately followed by the following: "Conversely, a decrease is called for when circumstances render all or a portion of support received unnecessary for maintaining that standard." Id. at 153. Plaintiff argues that the judge did not take into account defendant's increase in income but only whether plaintiff's income had decreased. While we cannot say that the judge did not mention defendant's increase in income, we agree with plaintiff that the judge's opinion focused on the fact that plaintiff's income had remained about the same since the entry of final judgment. The judge did not reference our opinion in Stamberg v. Stamberg, 302 N.J. Super. 35, 42-43 (App. Div. 1997), where Judge (now Justice) Long concluded that under Lepis "a payor spouse is as much entitled to a reconsideration of alimony where there has been a significant change for the better in the circumstances of the dependent spouse as where there has been a significant change for the worse in the payor's own circumstances." (citing Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991)). As a result, we are left in doubt as to whether the judge applied the appropriate legal principles to the facts.

Further, in his opinion, the judge repeatedly opined that the current level of alimony, together with defendant's own income, "enables [defendant] to live at the same standard of living that she enjoyed during the marriage." Yet, despite several references to the "marital standard of living," the judge never made any findings as to what that marital standard was. See Crews v. Crews, 164 N.J. 11, 25 (2000) ("It is clear . . . that the marital standard of living is an essential component in the changed-circumstances analysis when reviewing an application for modification of alimony.") While we might speculate that the judge gleaned some facts concerning the marital standard of living from the documents on file, speculation does not provide a satisfactory basis on which to draw a legal conclusion.

Finally, throughout his opinion, the judge referred to the fact that plaintiff, having remarried, now has the benefit of two incomes. In Hudson v. Hudson, 315 N.J. Super. 577 (App. Div. 1998), we considered the role of the current spouse's income in the context of the allocation of "a child's college expenses between the former spouse-father and the mother of the child." Id. at 579. We noted that it was proper for a court to "consider a current spouse's income to the extent that it provides a fiscal basis for meeting current living expenses or long-term financial obligations which, absent such income, would be borne by a parent individually." Id. at 583-84. Here, while the judge did refer to plaintiff's "diminished expenses," we are again left uncertain as to whether the proper rule was applied. The income of plaintiff's new wife is relevant not because it increases his income, but because it quite likely decreases his expenses. The opinion fails, however, to spell out those expenses shared by the new spouse in determining that plaintiff had adequate net income to continue his current alimony obligation.

Because of these defects in the trial court's opinion, we conclude that the order denying plaintiff's application must be reversed and the matter remanded for a plenary hearing at which the appropriate determinations, as discussed above, may be addressed and resolved. We express no opinion on the merits of plaintiff's application.

Reversed and remanded. We do not retain jurisdiction.

 

The order also denied plaintiff's motion to terminate child support for his daughter. Child support for the parties' son was terminated based on a finding that he was emancipated.

(continued)

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A-0785-05T1

December 13, 2006