CHRISTOPHER BARNES v. GERALDINE BARNES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2021-10T2

CHRISTOPHER BARNES,

Plaintiff-Appellant,

v.

GERALDINE BARNES n/k/a

GERALDINE PRODELL,

Defendant-Respondent.

________________________________

March 9, 2012

Submitted February 27, 2012 - Decided

Before Judges Ashrafi and Fasicale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-796-03.

Stacy L. Spinosi, attorney for appellant.

Geraldine P. Prodell, respondent pro se.

PER CURIAM

In this post-divorce matrimonial case, plaintiff appeals from a December 20, 2010 amended order denying his motion to terminate his permanent alimony obligations. We reverse and remand.

The parties were married for sixteen years and had no children together. In 2004, they divorced and, after a trial,

plaintiff was ordered to pay $120 per week in permanent alimony. Subsequently, the Social Security Administration determined that plaintiff was medically disabled and therefore entitled to monthly disability benefits effective 2010. Plaintiff is now retired from his job as an elevator mechanic and collects a pension, which is equitably distributed to defendant as part of the divorce.

In 2010, plaintiff filed a motion to terminate his alimony obligations and contended that his medical condition and reduced income constituted changed circumstances. The judge denied the motion and concluded that plaintiff had failed to establish a prima facie case of changed circumstances. In denying the motion, the judge considered as income plaintiff's pension, even though the pension had been equitably distributed.

On appeal, plaintiff argues that the judge abused his discretion by failing to find that he established a prima facie case of changed circumstances, and by considering his pension in calculating his alimony obligation. We focus on plaintiff's second contention, that the judge wrongly denied his motion by misapplying N.J.S.A. 2A:34-23b.

Because plaintiff's pension has been equitably distributed, it was error for the judge to consider the pension in calculating the alimony obligation. "When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony." N.J.S.A. 2A:34-23b; see also Innes v. Innes, 117 N.J. 496, 514 (1990) (holding that "payments generated by pension benefits that had been previously equitably distributed are not income for purposes of alimony modification").

The goal of alimony is to "assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed . . . during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). Nonetheless, courts retain equitable power to modify alimony obligations at any time on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 145-46 (1980); N.J.S.A. 2A:34-23. In such cases, courts should consider whether the alleged change is "continuing" or merely "temporary," Innes, supra, 117 N.J. at 504, and "whether the agreement or decree has made explicit provision for the change." Lepis, supra, 83 N.J. at 152. One well-recognized ground for changed circumstances is a decrease in the supporting spouse's income. Id. at 151; Innes, supra, 117 N.J. at 504. Another ground for changed circumstances is an illness or disability. Lepis, supra, 83 N.J. 151. Here, plaintiff contends that he is disabled and that his income has been substantially reduced.

Because the judge misapplied N.J.S.A. 2A:34-23b, we reverse, remand, and direct him to consider anew plaintiff's motion. In so doing, the judge will be required to determine whether plaintiff has established a prima facie case of changed circumstances, and if so, whether to terminate or modify his alimony obligations.

Reversed and remanded. We do not retain jurisdiction.