THOMAS BROWN v. THELMA B. BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6085-08T26085-08T2

THOMAS BROWN,

Plaintiff-Appellant,

v.

THELMA B. BROWN,

Defendant-Respondent.

__________________________________

 

Submitted April 14, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-144-05.

Law Offices of Paul H. Scull, Jr., attorney for appellant (Paul H. Scull, Jr., on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Thomas Brown appeals the July 10, 2009, order of the Family Part with respect to his application for termination or reduction of his obligation to pay spousal support to plaintiff Thelma B. Brown, his former wife. Although the order resulted in a reduction in the amount of support, defendant argues that the obligation should have been terminated or the reduction more substantial and that the motion judge failed to address his contention that certain income received by him should not have been taken into account in calculating support. We affirm the order on appeal to the extent it denied the termination of alimony, but remand to the motion judge for reconsideration and further explanation of the reasons for the reduction in alimony.

I.

We discern the following facts from the record. The parties were married in 1992. Both parties were disabled during the marriage. Thomas, who was born in 1939, was in the military from 1961 to 1970, when he was honorably discharged because of service-related injuries. Although he was apparently employed by the State of New Jersey following his discharge, he was eventually determined to have a one hundred percent service-related disability in 1999. He currently receives income from a veterans disability pension, a New Jersey Public Employees Retirement System pension, and Social Security.

Thelma, who was born in 1945, became disabled shortly after the marriage, although the details are not clear from the record. It appears that she started to receive Social Security Disability benefits in 2002. She also receives alimony, as explained below. It is not clear from the record whether she also receives Social Security retirement benefits. She is on Medicare, but has additional expenses for supplemental coverage, co-pays, and similar items related to health expenses.

Thomas filed for divorce in 2002. However, to facilitate Thelma's continued eligibility for health insurance through the Veterans Administration, Thomas agreed to withdraw his complaint for divorce. Instead, the parties agreed to a consent judgment on Thelma's counterclaim for separate maintenance. The initial consent judgment, dated February 26, 2003, set forth certain positions and facts with respect to spousal support, but did not include an amount for such support because it was to be determined by the court.

14. . . . Neither party is making a claim for a distribution of retirement benefits as an asset and acknowledge that the benefits being paid to each as and for pension, disability, and social security is ongoing available income to the parties to be considered by the Court in determining the alimony issue. The plaintiff, Thomas Brown, specifically reserves his right to argue that the income being generated from his Veteran's pension should not be includable for alimony purposes. The defendant, Thelma B. Brown, specifically reserves her right to argue that the income lost to her as a result of her pension being cashed in during the marriage should be a consideration in connection with the alimony issue.

. . . .

18. The parties enter into the following stipulations:

A. The income of the plaintiff, Thomas Brown, is as follows: State of New Jersey pension in the amount of $673.84 per month; Veteran's Administration Disabil- ity pension in the amount of $2,300.00 per month; and Social Security in the amount of $1,127.00 per month for total monthly net income of $4,100.84. The defendant, Thelma B. Brown, reserves her right to argue that the plaintiff, Thomas Brown, is able to generate income from his side business.

B. The income of the defendant, Thelma B. Brown, is as follows: Social Security Disability income in the amount of $1,136.00 net per month.

An amended judgment, reflecting a settlement of the support and other reserved issues, was entered on March 24, 2003. The amended judgment required Thomas to pay $1,000 per month as "permanent alimony," and refers to the same monthly income set forth above.

In 2005, Thomas again filed for divorce. The judgment was entered on March 24, 2006. It required payment of spousal support in the amount of $1,750. The increase was, according to Thomas, based on Thelma's need to purchase her own health insurance after the divorce ended her ability to obtain health insurance through the Veterans Administration.

Thomas filed a motion for the elimination or reduction of his spousal support obligation in May 2009. He alleged the following changed circumstances: (1) Thelma is now eligible for Medicare and does not need to purchase her own health insurance, (2) Thelma's Social Security Disability benefits have increased, and (3) Thelma receives, or should apply for, regular Social Security retirement benefits. Thomas also argues that his veterans disability pension and Social Security are exempt from inclusion as income and should not be considered in calculating his support obligation. Thelma opposed the application, arguing that she needed the entire amount of alimony to meet her monthly obligations.

The judge denied Thomas's application to terminate alimony, but reduced the support amount to $1,250, plus $50 per month for arrears. It appears that the judge issued a tentative decision and then gave the parties the opportunity to argue that he should reach a different decision at oral argument on July 10, 2009, while both were under oath. However, he entered an order on the same date implementing his tentative decision. There is no explanation of how the judge arrived at the $500 figure for the reduction of the alimony obligation. He declined to consider the arguments with respect to exempt income, believing that the issue had already been determined in a prior proceeding. 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). It is not clear in this case, however, whether the judge made the factual findings in his written statement of reasons based upon the motion papers or the parties' statements under oath at the oral argument, although it appears to have been the former. 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).

Thomas relies on Lepis v. Lepis, 83 N.J. 139, 146 (1980), arguing that he demonstrated a prima facie case of changed circumstances that warranted the elimination of his spousal support obligation. 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" include 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. We agree with the motion judge that there have been sufficient changed circumstances to warrant a review of the alimony amount.

Thomas relies on the provisions of 38 U.S.C.A. 5301(a) for his argument that his veterans disability pension should not be considered in determining his income for the purposes of calculating alimony. The applicable provision is as follows:

(a) (1) Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. . . .

The language of the statute does not support Thomas's position. It states that the payments are not taxable and cannot be attached by a creditor, but it does not prohibit inclusion of the pension income for the purposes of computing spousal or child support. A spouse seeking support is not a creditor within the meaning of the statute. See In re Gardner, 264 N.W. 643, 646 (Wis. 1936). Thomas's reliance on Whitfield v. Whitfield, 373 N.J. Super. 573 (App. Div. 2004), is misplaced. That case involved equitable distribution rather than the calculation of alimony.

Thomas also argues that his Social Security benefits cannot be included in his income for the purposes of calculating alimony, citing 42 U.S.C.A. 407, which has language similar to 38 U.S.C.A. 5301(a). However, 42 U.S.C.A. 659(a) (emphasis added) provides, in pertinent part, that:

Notwithstanding any other provision of law (including . . . [38 U.S.C.A. 5301(a)], effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States . . . to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States . . . were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of [42 U.S.C.A. 666] and regulations of the Secretary under such subsections, and to any other legal process brought by a State agency administering a program under a State plan approved under [42 U.S.C.A. 651 to 669(b)] or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.

Thomas's citation of Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S. Ct. 590, 34 L. Ed. 2d 608 (1973), is inapposite because the statutory language quoted above, enacted in 1975, changed the law on which it was based.

Because we have determined that Thomas's veterans disability pension and Social Security benefits are properly included as income, we affirm the motion judge's determination that a termination of alimony is not warranted. Even with the changed circumstances, there is still a significant disparity between the incomes of the former spouses and we discern no basis for a complete termination of alimony. However, because the judge's statement of reasons does not explain how he derived the amount of the reduction in the monthly alimony payment, we cannot determine whether it was an appropriate exercise of discretion.

Thomas correctly notes that the judge did not discuss the factors for determining alimony set forth in N.J.S.A. 2A:34-23(b), which are, in relevant part, as follows:

In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, the following factors:

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

(2) The duration of the marriage or civil union;

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

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

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

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

(7) [not applicable];

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(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, including the designation of all or a portion of the payment as a non-taxable payment; and

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

Given our understanding of the facts, not all of the listed criteria will be applicable. However, we note that the record does contain a reference to Thomas having some sort of "side business" in the past.

In determining the amount, if any, of the reduction warranted by the changed circumstances, the motion judge must determine the parties' income and expenses and then assess all of the statutory factors to determine whether other circumstances have changed and then fashion a revised alimony amount that is fair and equitable to both parties. Such an analysis will require full financial disclosure by the parties, and may well necessitate a brief evidentiary hearing. In remanding, however, we do not suggest that there should have been a greater reduction. The judge must analyze the relevant facts and legal principles to determine what, if any, reduction is appropriate, keeping in mind that both parties are disabled.

 
Affirmed in part and remanded.

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

He apparently sought to raise this issue in a prior appeal, but it was dismissed as untimely.

(continued)

(continued)

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A-6085-08T2

May 25, 2010