ROBERT EHMANN v. CANDY EHMANN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1918-08T21918-08T2

ROBERT EHMANN,

Plaintiff-Appellant,

v.

CANDY EHMANN,

Defendant-Respondent.

__________________________________

 

Argued April 14, 2010 - Decided:

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1772-04C.

Michael H. Nieschmidt argued the cause for appellant.

Candy Ehmann, respondent, argued the cause pro se.

PER CURIAM

Plaintiff Robert Ehmann appeals an order of the Family Part denying his request for termination or a downward modification of his alimony obligation to defendant Candy Ehmann, his former wife. He also contends that the Family judge erred in calculating his child-support and educational-support obligations. We reverse and remand for further proceedings consistent with this opinion.

I.

The parties were married in December 1979. Two sons were born of the marriage. The older son is emancipated. The younger son was born in November 1988. Although he is now twenty-one years old, the younger son has not been emancipated and is apparently still pursuing post-secondary education.

The parties divorced in 2005, after more than twenty-five years of marriage. At the time, Robert was employed by Colgate Palmolive as a computer operator. He earned a gross annual income of $56,760. Candy's only source of income was her Social Security disability in the amount of $740 per month, or $8,880 per year.

The parties entered into a property settlement agreement (PSA) that was incorporated into the final judgment of divorce. Robert agreed to pay Candy permanent alimony in the amount of $250 per week until the younger son's emancipation, and $300 per week thereafter. The calculation was apparently based upon the parties' then income. The PSA reflected the fact that Candy would be unable to maintain the standard of the marital lifestyle without the alimony arrangement.

In the PSA, the parties also agreed that Candy would remain in the marital home located in Keansburg, but would pay $54,000 to Robert, presumably representing one-half of the total equity in the marital home. Candy also agreed to pay $12,150 to Robert, representing her one-half of the marital debt. Thus, the PSA required Candy to pay a total of $66,150 to Robert.

The PSA established the following payment schedule: (1) $42,500 would be paid to Robert once the parties refinanced the marital home; and (2) the remaining $23,650 would be given as a credit towards Candy's share of the equitable distribution of Robert's 401K plan. According to the PSA, Robert had a personal retirement account with Colgate Palmolive with an approximate value of $109,490, and a savings and investment plan worth approximately $222,176. These funds were to be split between the parties, subject to the credit due to Robert.

The PSA also required Robert to pay $100 per week in child support for the younger son until his emancipation, which would apparently not occur until his completion of post-secondary education.

Regarding post-secondary educational expenses, the PSA recognized the duty of both parents to provide financial assistance in accordance with Newburgh v. Arrigo, 88 N.J. 529 (1982). The parties agreed to contribute to the educational costs, after the younger son had applied for all possible financial aid.

Finally, Robert agreed to maintain health insurance coverage for the younger son. Under the PSA, Candy would be responsible for the first $250 of the son's un-reimbursed medical expenses, and thereafter the parties would split the expenses at sixty-percent for Robert and forty-percent for Candy.

Following the divorce, Robert experienced several health-related problems that caused him to stop working. He "is unable to engage in any substantial, gainful employment on a permanent basis," according to one of his doctors. Robert qualified for disability benefits from Social Security. Beginning in November 2006, he has been receiving a monthly benefit of $1,938.90. Consequently, his annual income was reduced from $56,760 at the time of the divorce, to $23,266.80. In January 2007, Robert relocated to Florida and subsequently remarried. However, he was apparently divorced again in July 2008.

In May 2008, the Family judge entered an order enforcing several provisions of the PSA in response to an application from Candy. Although Robert did not respond to the motion, the judge determined that he had been served.

Candy then moved to enforce the May 2008 order. Robert responded with a cross-motion seeking relief based upon a "substantial change in circumstances." Specifically, Robert sought to terminate all spousal support, recalculate his child support obligation, and terminate his obligation to contribute toward his younger son's post-secondary educational expenses.

The cross-motions were heard on October 24, 2008, but no testimony was taken. The judge reserved decision. In a subsequent oral decision, the judge ruled on the thirteen issues raised by the parties. With respect to the issues now before us, he (1) compelled the parties to each pay one-half of the younger son's educational expenses; (2) denied Robert's application to terminate his alimony obligation; (3) recalculated child support at $54 per week, as of October 27, 2008, in accordance with the child support guidelines; (4) denied Robert's request that his obligation to pay for post-secondary education be terminated; and (5) denied Robert's request for counsel fees. This appeal followed.

II.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), although, in this case, there were no findings of fact based upon an evidentiary hearing. A judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

Robert relies on Lepis v. Lepis, 83 N.J. 139, 146 (1980), arguing that he demonstrated a prima facie case of changed circumstances that warranted a hearing to determine whether his spousal support obligation should be reduced. Alimony obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Ibid. (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)). "Changed circumstances" includes situations arising after the original divorce judgment such as the supporting spouse's increase or decrease in income; illness, disability or infirmity; and the dependent spouse's subsequent employment. Id. at 151.

There appears to be no question in this case that Robert has become permanently disabled and that his income has been significantly reduced. Yet, the motion judge declined to hold a hearing and refused to modify the amount of spousal support. He appears to have relied on disputed facts, such as the assertion that Robert is supported by his second wife, from whom Robert contends he has been divorced. See Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006).

Candy receives $8,800 a year from social security, whereas Robert receives approximately $23,267. Clearly there is still a disparity; and we do not suggest that alimony should be terminated. If, however, Robert pays Candy $13,000 per year in alimony, there would be a significant disparity the other way. While we agree that the issue of additional resources available to Robert needs to be considered, subject to the constraints of Innes v. Innes, 117 N.J. 496, 503-05 (1990), the motion judge did not engage in the fact finding and analysis required to determine whether a modification of spousal support would be appropriate. Consequently, we remand for reconsideration of the issue of spousal support, particularly to determine whether a reduction would be proper. This determination is to be made after an evidentiary hearing, which need not be lengthy.

We also remand the issue of child support. First, in applying the child support guidelines, the motion judge failed to add the alimony to Candy's income, although he did reduce it from Robert's income. Second, if there is a modification of alimony, the new amount should be used to calculate the child support.

Finally, we remand the issue of college expenses for the youngest child. Although the PSA clearly contemplates that the parents will contribute to college expenses, the agreement is expressly made subject to the factors enumerated in Newburgh, supra, 88 N.J. at 545. One of those factors is the parties' ability to pay such expenses. Ibid. While we do not denigrate the importance of higher education, we are dealing with two disabled parents living on a reduced income. We direct the motion judge to reconsider whether their admittedly-changed circumstances warrant a modification, or even elimination, of the requirement that they continue to contribute to the college expenses.

Remanded for reconsideration consistent with this opinion. We do not retain jurisdiction.

 

Because the parties share the same last name, we refer to them by their first names for the sake of convenience.

(continued)

(continued)

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A-1918-08T2

May 21, 2010