LINDA KLEIN v. DAVID KLEIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2841-04T12841-04T1

LINDA KLEIN,

Plaintiff-Respondent/

Cross-Appellant.

v.

DAVID KLEIN,

Defendant-Appellant/

Cross-Respondent.

____________________________

 

Argued March 28, 2006 - Decided May 8, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

FM-07-1215-93.

Jeffrey P. Weinstein argued the cause for

appellant (Weinstein Snyder Lindemann Sarno,

attorneys; Mr. Weinstein, of counsel; Donald

Schumacher and Mr. Weinstein, on the brief).

Robert D. Hodes argued the cause for respondent

(Michael D. Mark, attorney; Mr. Hodes, of counsel

and on the brief).

PER CURIAM

The twenty-five-year marriage between plaintiff Linda Klein and defendant David Klein was dissolved following a trial and entry of a final judgment of divorce on January 22, 1997. At that time defendant was fifty-one years old and employed as corporate counsel for Warner-Lambert. His yearly salary was $140,000 plus numerous employment benefits including stock options, pension and an annual bonus of more than $17,000. Plaintiff, then age forty-six, was employed as a teacher's aide earning $12,000 per year. In his decision following the 1996 dissolution trial, the trial judge found permanent alimony was appropriate in light of the length of the marriage and economic potential of the parties. The court declared:

[P]laintiff will never be in a position [where] she will be on equal economic footing with defendant. As a teacher's aide or even a teacher, she will never be able to earn the sums of money that the defendant is able to earn. There won't be a time where she will no longer need support in order to be on an equal economic footing. As such, permanent alimony is appropriate in this case.

Plaintiff was awarded $3,100 per month in permanent alimony. Defendant was also ordered to pay $10,000 per year in child support, broken down as $2,000 for Peter, the older child then in college, and $8,000 for the younger child, Jenna. The judgment of divorce further addressed college and medical expenses for the children, equitable distribution and sale of the marital home.

Several post-judgment motions were filed to enforce or modify provisions of the divorce judgment. In October 2004, defendant moved for elimination or reduction of alimony and child support based upon a claim of changed circumstances. Plaintiff filed a cross-motion for increased alimony, payment of all college expenses and unreimbursed medical costs for Jenna as well as counsel fees. Based on certifications of both parties, it appears that following the divorce plaintiff took college courses which enabled her in 2003 to obtain a tenured teaching position with the Ridgefield Park Board of Education. She presently earns between $45,000 and $50,000 per year. Defendant, on the other hand, was less fortunate. In 2000, Warner-Lambert was taken over by Pfizer, and defendant's employment ended with a twenty-seven-month severance package. He became vice president and corporate counsel for a newly formed company in January 2002, but it closed down several months later. He performed part-time contractual work for the Community Foundation of New Jersey for which he received an aggregate $50,000 over eighteen months, and per diem work for a small pharmaceutical company which paid him $10,000 over two years. Defendant certified that he has sought employment through various recruiters both in the corporate field as well as private law practice without success. He further asserted that he has been able to satisfy his support obligations only through the sale of stock options and other property awarded in equitable distribution. He therefore claims changed circumstances entitle him to relief from the divorce judgment.

Plaintiff contests defendant's claim, pointing to his substantial W-2 income and defendant's recently acquired property in the Virgin Islands. She disputes his efforts to find employment. Arguing that defendant has not disclosed his entire income, she claims that he is able to pay increased support to which she and Jenna are entitled.

Following oral argument, the Family Court judge denied both motions, and both parties then filed motions for reconsideration which were denied. In that order the motion judge amended his initial order to read:

Plaintiff's increase in income does not entitle Defendant to a downward modification of alimony or child support as it was contemplated at the time of Final Judgment of Divorce and therefore, does not constitute a significant change of circumstances.

Both parties have appealed. We reverse and remand for a plenary hearing on the issue of whether defendant is entitled to modification of his alimony obligation based on a change of circumstances.

Judgments or orders for alimony and child support are always subject to modification pursuant to N.J.S.A. 2A:34-23 upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Judges of the Family Court have equitable power and duty to revise final orders of support when a party seeking modification satisfies the burden of showing a change of circumstances warranting relief or alteration of prior orders of spousal or child support. Crews v. Crews, 164 N.J. 11, 24 (2000); Innes v. Innes, 117 N.J. 496, 504 (1990); Lepis, supra, 83 N.J. at 157. The determination is made after comparisons of the financial circumstances of the parties at the time the application for relief is made with the circumstances which form the basis for the last order fixing support. Beck v. Beck, 239 N.J. Super. 183, 189-90 (App. Div. 1990). Significant changes in the income or earning capacity of either spouse may result in a finding of changed circumstances. Innes, supra, 117 N.J. at 504; Foust v. Glaser, 340 N.J. Super. 312, 316-17 (App. Div. 2001).

The motion judge focused on the issue of whether it was anticipated at the time of divorce that plaintiff's income would significantly increase from her modest earnings of $12,000 at that time. He found that this was the expectation of the trial judge, and, furthermore, stated that plaintiff should not be penalized by her efforts to obtain a more secure and substantial income. The motion judge did not give proper weight to what was clearly not anticipated, namely that defendant would lose his job and undergo a substantial period of unemployment and financial setback. Those factual assertions by defendant did satisfy a prima facie showing of changed circumstances.

Plaintiff's challenge to defendant's claims of diminution of income and good-faith effort to seek employment underscores that there are material facts in dispute requiring resolution at a plenary hearing. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). Accordingly, we reverse and remand that portion of the motion judge's order denying defendant's application for reduction of alimony based on changed circumstances pending resolution following a plenary hearing.

In contrast, we find that plaintiff failed to make a prima facie showing of changed circumstances to justify an increase in the support obligations of defendant. Her income has significantly increased over the past four years, and there is not an adequate showing of an increase in expenses warranting increased support.

The remaining arguments made in the appeal and cross-appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed in part. Reversed in part. Remanded for proceedings in accordance with this opinion. We do not retain jurisdiction.

(continued)

(continued)

6

A-2841-04T1

May 8, 2006