ALAN HIGBIE v. ANDREA HIGBIE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1965-07T31965-07T3

ALAN HIGBIE,

Plaintiff-Respondent,

v.

ANDREA HIGBIE,

Defendant-Appellant.

__________________________

 

Argued December 16, 2008 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-444-03.

Michael K. Fielo argued the cause for appellant (Mr. Fielo, attorney and of counsel; Patricia Ann Hollingsworth, on the brief).

Joseph A. Fortunato argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant Andrea Higbie appeals from the September 28, 2007 order of the Family Part denying her application for permanent alimony, and from the December 7, 2007 order denying her motion for reconsideration. For the reasons that follow, we reverse and remand for a plenary hearing.

The parties were married on May 28, 1978, and have two children. They were divorced by a final judgment entered on April 1, 2004, which incorporated their property settlement agreement (PSA). The PSA contained the following provision regarding alimony:

2.1 Neither party shall be entitled to receive alimony from the other. The parties have reached this agreement based upon their informed belief that each has sufficient income and earning capacity to support himself or herself in a matter reasonably similar to the marital lifestyle.

2.2 The Wife's waiver of alimony is predicated upon her belief that she will either retain her employment at the New York Times, or will find new employment within $10,000 of her income of $98,000 annual [sic] in the reasonably near future. In the event this does not occur, she retains her right to make an appropriate application to the court.

The PSA noted that plaintiff had sought residential custody of the children "because of the Mother's alcohol and substance abuse history[,]" but he withdrew that request "based upon a belief that the Mother's recent rehabilitation has been and will continue to be successful." Therefore, defendant was designated as the children's primary residential custodian. However in 2005, custody of the children was transferred to plaintiff. Following this transfer of custody, defendant moved to Texas to be near her family.

During the marriage, both parties had earned substantial incomes and enjoyed an upper middle-class lifestyle, living in an upscale neighborhood in Montclair. As reflected in the PSA, defendant suffered from alcoholism and depression during the marriage. It appears that defendant had lost her employment with The New York Times shortly before the divorce, but failed to disclose that fact to plaintiff.

Following the divorce, defendant's medical problems, including depression and alcoholism, increased. Therefore, she made an application to the court for permanent alimony, which resulted in a February 2005 order awarding her temporary alimony of $2,000 per month for a six-month period. Defendant brought a later application resulting in a December 2005 order awarding her the same amount for another six-month period. That order provided that any future alimony application would have to be "conditioned upon the [d]efendant producing two medical narrative reports, one psychiatric and one concerning [d]efendant's physical condition, at the time of such application."

On July 13, 2007, defendant filed a motion for permanent alimony, alleging the further exacerbation of her medical problems that had existed since the time of the divorce. She appended the following documents to her motion: (1) a letter from Tip McCay, adult program coordinator of a substance abuse program, dated November 25, 2006, stating that defendant had "underlying psychiatric issues that are crucial to address in order to successfully maintain sobriety"; (2) a letter from Samuel Hoover, D.O., dated January 22, 2007, stating that "[defendant] should be in a long term hospitalization program for drug addiction and alcoholism," and that "[s]he is also unable to work and is indeed, unemployable[]"; (3) a letter and evaluation from Florence Ouspeh, M.D., dated April 3, 2007, stating that defendant "is not able to work now and would not be able to work for an undetermined period of time[,]" and "most probably would have difficulty working at a level consistent with" her previous employment; and (4) medical documentation from 2006 of surgery and related complications of bowel and stomach problems resulting in, among other things, difficulty breathing. Defendant had applied for disability benefits and had been denied; that denial was on appeal at the time of her motion.

In opposing defendant's motion, plaintiff dwelt on the acrimonious history of the divorce and post-divorce matters. He argued that defendant continues to suffer from alcoholism, depression and the same health problems that she had at the time of the divorce in 2004.

On September 28, 2007, after hearing brief oral argument, the trial judge denied defendant's motion. The judge queried whether defendant's addiction was "a voluntary act on her part . . . that causes her to become unemployable[,]" and then ruled as follows:

I've been trying to give her [the] opportunity, . . . and I think by the two six-month periods that I fixed an amount that w[as] outside the scope of the agreement was my attempt to accomplish that, but I can't do a third one. I'm, uncomfortable. . . . I feel badly for [defendant], but I can't make it [plaintiff's] obligation, as I perceived it under the law.

. . . .

I have done that twice. . . . [Y]our application for permanent alimony is denied, as well as any application for the extension of the award.

In denying defendant's motion for reconsideration, the trial judge expounded upon his view that defendant's alcoholism and related medical problems were known at the time the PSA was executed, adding that the fact that she "didn't make th[e] choice" to "deal[] with this disease" should not now entitle her to alimony.

On appeal, defendant raises the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR PERMANENT ALIMONY.

A. The Trial Court Failed to Take Into Account the State of New Jersey's Policy Regarding the Treatment of Alcoholism as a Disease.

B. The Trial Court Failed to Adhere to N.J.S.A. 2A:34-23b in Making its Determination of Whether an Award of Alimony was Appropriate.

C. Lepis v. Lepis is not the controlling standard in this matter and to the extent the Trial Court relied upon it, it did so in error.

1. Defendant is not required to show a change in circumstances in order to obtain an award of permanent alimony.

2. Defendant showed a sufficient change of circumstances to warrant an award of permanent alimony.

We concur with defendant's argument that the trial judge erred in summarily dismissing her current application for spousal support. The fact that the judge had granted two previous requests, each on a temporary basis, should not preclude consideration and evaluation of defendant's current request on the merits. Nothing in the language of paragraph 2.2 of the parties' PSA dictates such a result.

In December 2005, the judge apparently contemplated the possibility of a future application by defendant when he conditioned any such application upon the submission of supporting medical documentation. Defendant complied with that requirement in her July 2007 motion. However, rather than review the substance of those submissions, the trial judge simply denied her application on the basis that he "can't do a third one."

N.J.S.A. 2A:34-23(b) sets forth numerous factors a judge must consider when deciding a request for any form of alimony. Those factors are:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage . . . ;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage . . . and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, education levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment . . . ;

(9) The history of the financial or non-financial contributions to the marriage . . . by each party including contributions to the care and education of the children . . . ;

(10) The equitable distribution of property ordered . . . ;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award . . . ;

(13) Any other factors which the court may deem relevant.

While these factors normally apply in determining an alimony award at the time of the divorce, there is no reason the identical standards should not apply here where the parties' PSA expressly contemplates the possibility of future post-judgment alimony requests. Further, we note the statutory requirement that, in considering whether to award any type or amount of alimony, "the court shall consider and make specific findings on the evidence about [the] factors set forth above." N.J.S.A. 2A:34-23(c).

We conclude that defendant, having complied with the conditions imposed in the December 2005 order, was entitled to have the court weigh her request in consideration of the statutory factors. That being the case, we conclude that the trial judge failed to adequately "find the facts [or] state [his] conclusions of law" as required by Rule 1:7-4(a).

While we have acknowledged that a trial judge's ruling on an alimony award is "discretionary and not overturned unless the court abused its discretion," we have not hesitated to reverse such discretionary exercises where the judge "failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005). Because the trial judge declined to consider defendant's alimony request on its merits, we conclude this matter must be remanded for a plenary hearing, not on the "changed circumstances" standard of Lepis v. Lepis, 83 N.J. 139, 152 (1980), but in accordance with the statutory standard of N.J.S.A. 2A:34-23(b)(1). The parties shall submit updated Case Information Statements and all of the necessary documentation for the trial judge to properly evaluate defendant's application.

 
Reversed and remanded for further proceedings in conformance with this opinion. We do not retain jurisdiction.

(continued)

(continued)

9

A-1965-07T3

February 25, 2009