LINDA A. HALLAD v. GEORGE N. HALLAD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2934-04T22934-04T2

LINDA A. HALLAD,

Plaintiff-Respondent,

v.

GEORGE N. HALLAD,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 21, 2005 - Decided January 19, 2006

Before Judges Conley and Lihotz.

On appeal from New Jersey Superior Court, Chancery Division, Family Part, Somerset County, FM-11-448-89.

George Hallad, appellant pro se.

Raymond R. & David W. Trombadore, attorneys for respondent (David W. Trombadore, on the brief).

PER CURIAM

Defendant, George N. Hallad, appeals the denial of his application for reduction in the amount of alimony he now pays to his former wife, plaintiff, Linda A. Hallad. Because the trial court's findings are supported by substantial credible evidence in the record and the conclusions are consistent with controlling legal principles, we affirm substantially for the reasons stated by Judge Marino in her decision of June 20, 2005 with this brief comment by written opinion. R. 2:11-3(e)(1)(A).

The parties married on June 16, 1963. Their Dual Judgment of Divorce dated May 20, 1991, required defendant to pay permanent alimony to plaintiff of $4,000 per month. Defendant's first request to reduce alimony resulted in a stipulation fixing the monthly obligation at $3,250. The parties also agreed, defendant's "current projected income" would be set at "$200,000 per year." Enforcement hearings prompted defendant to again file a request to reduce his monthly alimony obligation in January 2005. The trial court denied the request. We remanded for fact-finding on the defendant's ability to pay.

After a plenary hearing, the trial court found defendant's income from all sources enabled him to meet his necessary expenses and pay alimony of $3,250 per month, which was also found to be necessary for plaintiff to meet her monthly needs. This appeal followed.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Id. at 413. If evidence is lacking to sustain the court's finding, it is only then that the findings must be set aside.

Defendant argues his age, health issues and reduction in gross earned income require a finding that he is entitled to the "elimination or substantial reduction of his alimony obligation." He is paid on commission as a securities broker. Defendant admits his income was $200,000 from 1999 to 2000 but claims he experienced a 50% permanent reduction in his earned income since 2001, when he received compensation solely based upon commissions. He contends this warrants at least a 50% reduction in the ordered alimony payment.

The trial court reviewed evidence of defendant's earned income for the period 1999 to 2004, imputing to him an average gross annual earned income of $146,666; a sum less than the stipulated $200,000 level of the post-judgment order. Defendant proffers the evidence supports his position that his income received solely from commissions averages only $130,625 per year, necessitating a commensurate decrease in alimony.

When calculating defendant's monthly earned income, the court additionally included the sum of approximately $3,787. This represents a portion of a $128,187 loan extended to defendant by his employer in 2003. The loan is forgiven in equal amounts over 36 months. Defendant contends these monies were spent in 2003, and should not be counted as available current income. Finally, the court acknowledged defendant's receipt of unearned income and the ownership of assets available to meet his financial needs. No specific sum from these sources was included in the available monthly income when calculating defendant's ability to pay, however defendant received an IRA distribution of $37,600 in 2004.

Defendant does not dispute the trial court's finding of plaintiff's continuing need for alimony at the level now set or the calculation of his monthly expenses, other than the alimony obligation, which total $3,887.

The equitable power of the courts to modify alimony orders

at any time is specifically recognized by N.J.S.A. 2A:34-23. Both consensual agreements and judicial decrees are subject to the same standard of "changed circumstances" to modify the provisions imposed for alimony. Lepis v. Lepis, 83 N.J. 139, 148 (1980); Gibbons v. Gibbons, 86 N.J. 515, 525 (1981). Here, defendant bears the burden of persuasion to show the change in his financial circumstances. Lepis, supra, 83 N.J. at 157.

Once it is determined that defendant has presented a prima facie showing of changed circumstances, then the court must examine

"the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard" of living enjoyed during the marriage. Lepis, supra, 83 N.J. at 152; Crews v. Crews, 164 N.J. 11, 28 (2000).

In any application brought by a supporting spouse for a downward modification in alimony, the court must consider the parties' incomes from all sources, earned and unearned. Miller v. Miller, 160 N.J. 408, 421 (1999); Lepis, supra, 83 N.J. at 154; Bonnano v. Bonnano, 4 N.J. 268, 275 (1950).

Although the supporting spouse's income earned through employment is central to the modification inquiry, it is not the only measure of the supporting spouse's ability to pay that should be considered by a court. Real property, capital assets, investment portfolio[s], and capacity to earn by "diligent attention to . . . business" are all appropriate factors for a court to consider in the determination of alimony modification. Innes v. Innes, 117 N.J. 496, 503 (1990) (quoting Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)).

[

The record does not support defendant's argument that he is unable to meet the level of alimony now set, that is, $3,250 per month. The court, when determining defendant's ability to pay alimony, properly analyzed defendant's monthly wages averaging $8,732; the receipt of approximately $3,787 per month of forgiveness of indebtedness income, 26 U.S.C.A. 108(a); and other unearned income from investments, particularly that from a post-divorce individual retirement account. Steneken v. Steneken, 367 N.J. Super. 427, 437-38 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). (noting a supporting spouse's retirement assets "may be considered for purposes of alimony to the extent that post-divorce earnings enhanced its value").

Defendant also challenges what he labels errors in the issued fact-finding. These include a perceived negative inference drawn by the court regarding the source of the principal generating his current wife's unearned income, the failure of the court to recognize the transfer of his IRA funds from one account to another, and his retort to the finding that he suppressed the level of commissions he earned in 2001. Based on our analysis we need not reach these challenges as they do not impact our findings.

 
Affirmed.

The trial court denied defendant's motion for reduction. He appealed and we ordered a remand. The parties reached the stipulation contained in the order dated May 27, 1999.

(continued)

(continued)

7

A-2934-04T2

January 19, 2006