ROBERT EICK v. LAURA EICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0015-09T30015-09T3

ROBERT EICK,

Plaintiff-Appellant,

v.

LAURA EICK,

Defendant-Respondent.

___________________________

 

Argued June 8, 2010 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-651-06.

Bonnie Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost, on the brief).

Laura Eick, respondent, argued the cause pro se.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff, Robert Eick, appeals from the July 17, 2009 order of the Family Part denying his motion to modify his alimony and child support obligations. We reverse and remand for a plenary hearing.

The parties were married in February 1978 and divorced in February 2007. They have three children, one of whom is emancipated, and the other two are eighteen and sixteen years old respectively.

For the past twenty-seven years, plaintiff has been self-employed as a bookbinder; his business is known as R.A. Eick Bookbinding, which he has run as a solo operation for the past seventeen years. The parties' Property Settlement Agreement (PSA) provides for plaintiff to pay permanent alimony of $1500 per month and $2000 per month in child support for the two younger children. These support obligations were based upon the parties' respective 2005 annual incomes of $117,000 for plaintiff and $29,000 for defendant. The PSA further states that the child support amount "is a negotiated sum and is in excess of the Child Support Guidelines[,]" and therefore is "not . . . subject to periodic Cost of Living Adjustments."

On March 10, 2009, plaintiff filed a motion to reduce his support obligations based on a claimed change of circumstances, namely that his business "has declined drastically." Specifically, plaintiff certified:

My main customers are law firms. Now that they have access to online research databases their need for my product has diminished substantially. The decline in my business is an industry wide issue . . . . I have been in the book binding business for the last 27 years. . . .

. . . .

My business is extremely specialized. At the time of our divorce, my income from my business was $117,000.00. Defendant was earning $29,000.00 per year. As indicated on my current Case Information Statement [(CIS)], my total business income in 2007 was down to $89,270.00, with an adjusted gross income of $51,692 a reduction of $27,730.00 and $65,308.00 respectfully [sic]. In 2008, my gross business income was only $82,948.00 and my adjusted gross income was approximately $36,783.00. The decline in my business is a result of changes in technology. My customers, who in the past would have bound their books have started to put everything on disks or the internet.

. . . .

The book binding business has decreased rapidly on account of the use of electronic research systems, growth of imported bound printed material and the general downturn in the economy.

Plaintiff submitted a report by a vocational expert, David B. Stein, which concluded that he "has the capacity to learn new skills, although [he] is of advanced age vocationally, where changing careers is not a realistic possibility. His best option is to remain in his occupation, but to anticipate continued diminution of business volume, along with revenues and earnings." Stein further recommended that plaintiff "consider the services of a career counselor or business consultant to determine his business options and possible alternatives."

Defendant filed a cross-motion to enforce plaintiff's support obligations. She certified that defendant has been behind in his support payments.

Defendant appended a current CIS showing that her gross earned income (i.e., exclusive of alimony) in 2008 was $43,321; she also appended pay stubs showing current gross bi-weekly pay of $2,102.64.

The trial judge heard oral argument on July 17, 2009, and then rendered a decision from the bench, denying plaintiff's motion. The judge stated:

Certainly it is true that these are economically challenged times. But, again, Lepis [v. Lepis, 83 N.J. 139 (1980)] requires not only a substantial change of circumstance, but a demonstration that those changes are permanent.

And we can question whether, given the nature of the bookbinding business, the change is in fact permanent. But I certainly cannot take current economic conditions as a justification for reducing the voluntarily agreed to obligations, because these economic conditions, as . . . referred to by the plaintiff, are -- one can only hope and anticipate . . . temporary.

. . . .

It is a difficult decision that needs to be left to the [c]ourts to make based on a consideration of all of the circumstances. Again, the [c]ourt recognizes that there may in all likelihood be some impact on the plaintiff's . . . earnings, I should say, income, by virtue of the fact that we are in difficult economic times.

But given the fact that the issues facing the bookbinding industry in 2007, the prospect of it being a promising business even as of 2007, the [c]ourt concludes that plaintiff had the same issues that he's looking at now, only further complicated by the fact that we are in economically difficult times.

So, the changes in . . . the bookbinding business industry from 2007 to today are virtually nonexistent. They are about the same. They are just further complicated by the fact that we have a temporary . . . economic situation that we anticipate will rebound.

So, based on all of those circumstances, the [c]ourt concludes that the plaintiff . . . has not met the threshold requirement of demonstrating a permanent and substantial change of circumstances that would warrant modification of either the alimony or the child support obligations.

We note initially that our standard of review here is limited in scope. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such findings are "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The template for deciding an application to modify support obligations based on a claim of changed circumstances was established in Lepis v. Lepis, 83 N.J. 139 (1980). There, the Court included among the "'changed circumstances' that warrant modification" a "decrease in the supporting spouse's income," as well as "subsequent employment by the dependent spouse . . . ." Id. at 151 (citations omitted). Both circumstances are present here; not only has plaintiff's income decreased, but defendant's employment has led to significantly increased earnings on her part. The trial judge did not address this aspect of plaintiff's motion in her decision.

We have recognized that the failure "to address [a supporting spouse's] claims of changed circumstances based on an enhancement in his former wife's income" is error warranting reversal of the denial of relief and a remand for further proceedings. Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (1997); see also Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991) (when support of "an economically dependent spouse is at issue," consideration must be given to "the ability of that spouse to contribute to . . . her needs"; the dependent spouse's "income . . . is crucial to the issue of that spouse's ability to contribute").

Moreover, we are satisfied that the trial judge did not make adequate findings with respect to whether the reduction in plaintiff's earnings was of a permanent or temporary nature. See Bonnano v. Bonnano, 4 N.J. 268, 275 (1950) (where a supporting spouse fails to show that his employment situation "is other than temporary[,]" modification of support will be denied). For example, notwithstanding plaintiff's undisputed allegations as to why his bookbinding business had decreased, the judge found that "changes in . . . the bookbinding business industry from 2007 to today are virtually nonexistent." We discern no substantial, credible evidence of record to support that finding.

The judge further found that plaintiff "had the same issues that he's looking at now," as he had in 2007, but acknowledged that those "issues" were "further complicated by the fact that we are in economically difficult times." Notwithstanding this latter finding, however, the judge declined to find that plaintiff had, as a result, suffered a permanent diminution in his earnings; this was apparently the result of the judge's "hope and anticipat[ion]" that the "current economic conditions" are "temporary."

In sum, we are satisfied that plaintiff has made a prima facie showing of changed circumstances sufficient to warrant discovery and a plenary hearing. Lepis, supra, 83 N.J. at 157.

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

At the time plaintiff filed his motion, he was fifty-six years old.

During the pendency of this appeal, plaintiff filed a motion to strike portions of defendant's brief and appendix as containing discussion and documents outside the record. We hereby grant that motion and note that we did not consider those arguments or documents in our decision.

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A-0015-09T3

August 18, 2010