STEIDBERGER F. AUSTIN v. ELEANOR L. AUSTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4178-11T4

STEIDBERGER F. AUSTIN,

Plaintiff-Appellant,

v.

ELEANOR L. AUSTIN,

Defendant-Respondent.

_____________________________________

A

December 6, 2012

Before Judges Yannotti, Harris, and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part Monmouth County, Docket No. FM-13-1177-08-D.

John C. Feggeler, Jr., argued the cause for appellant.

Howard M. Davis argued the cause for respondent (Davis & Stern, P.C., attorneys; Mr. Davis, on the brief).

PER CURIAM

Plaintiff Steidberger F. Austin appeals from the Family Part's March 16, 2012 post-judgment order that, among other things, denied his application for an evidentiary hearing and modification in alimony. We reverse and remand for further proceedings.

I.

Plaintiff and defendant Eleanor L. Austin were married in May 1984. One child, now an emancipated adult, was born of the marriage.

The parties were divorced pursuant to a judgment of divorce entered on February 25, 2009. That judgment incorporated the parties' Property Settlement Agreement (PSA), which provided that plaintiff pay permanent alimony to defendant in the amount of $1875 per month. The PSA recited that plaintiff "is a W-2 wage earner at a current salary of $105,000, plus bonuses." Defendant was identified as unemployed, but "[w]hen she is employed, [she] has been a W-2 wage earner at an approximate salary of $25,000."

Plaintiff's employment as a systems analyst in the financial industry was terminated in July 2010. While he was searching for a new job, he continued to pay alimony for several months. In early 2011, however, plaintiff filed a motion seeking to terminate or suspend his alimony obligation, averring that he was then receiving unemployment benefits in the amount of $600 per week, which would end on January 25, 2011. His Case Information Statement (CIS) indicated that for calendar year 2009, plaintiff's gross income was $149,722. Defendant's CIS disclosed that her calendar year 2010 income was $4,561, and listed plaintiff's gross income for the same period as $153,241.

Plaintiff unilaterally suspended alimony payments after February 2011.

On February 23, 2011, a Family Part judge denied plaintiff's motion without prejudice, ordering the parties to "submit the matter of modification of alimony to economic mediation." The order further provided that if mediation were unsuccessful, "the parties may request a plenary hearing." Mediation occurred on July 7, 2011 and was unsuccessful.

Coincident with the date of mediation, defendant was laid off by her employer. Then, in December 2011, she was diagnosed with cancer, which required weeks of treatment, and incurred health care costs that exceeded her social security and unemployment benefits.

In that same month, plaintiff received an offer of employment, set to start on January 9, 2012, for a base compensation of $82,500 per year. The job, according to plaintiff's attorney, is located in Pennsylvania and requires a two-hour journey to work each way.

Defendant finally filed a motion to compel the payment of alimony, which was unaffected by the February 23, 2011 order. During the year between that order and her motion to enforce, plaintiff had not made any alimony payments. Plaintiff filed a cross-motion (1) renewing his request for a reduction of alimony due to changed circumstances, (2) asking the court to determine his alimony arrears, and (3) seeking a plenary hearing.

A different Family Part judge considered the cross-motions. On March 16, 2012, the judge granted defendant's motion to enforce requiring plaintiff to (1) resume monthly alimony payments of $1875, (2) pay alimony arrears at the rate of $250 per week, and (3) pay counsel fees of $1650 to defendant's attorney. Plaintiff's motion for a reduction in alimony payments and for a plenary hearing was denied. This appeal followed.

II.

On appeal, plaintiff argues that the Family Part's factual findings and legal conclusions were erroneous, which led to an inequitable and prejudicial result. Specifically, he contends that his circumstances, at least by 2012, were permanently changed. Thus, he argues that he demonstrated a prima facie case under Lepis v. Lepis, 83 N.J. 139 (1980) and its progeny, entitling him to, at least, an evidentiary hearing and a reduction in his alimony obligation. We agree, in part.

Courts are authorized by statute to modify alimony orders as circumstances may require. See N.J.S.A. 2A:34-23. Furthermore, the parties' PSA states that alimony "shall be adjusted under 'changed circumstances' in accordance with applicable case law in the event of . . . [h]usband's loss of employment. Each party shall be guided by the relevant case law with regard to any application for modification."

Our well-established jurisprudence requires that "[t]he party seeking modification has the burden of showing such 'changed circumstances' as would warrant [such] relief . . . ." Lepis, supra, 83 N.J. at 157; see also Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 350 (App. Div. 2009). That showing "must be made before a court will order discovery of an ex-spouse's financial status." Lepis, supra, 83 N.J. at 157.

When presented with a request for support modifications, a family court must consider "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 152. One of the occurrences that courts have recognized to warrant "changed circumstances" is a decrease in the supporting spouse's income.1 Id. at 151. "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).

We recognize that the Family Part is granted broad discretion in awarding financial support in a matrimonial action, including whether the amount of alimony should be modified. Innes v. Innes, 117 N.J. 496, 504 (1990). The Family Part's conclusions on a motion to modify alimony are not disturbed on appeal unless the court has made an error of law, Avery v. Avery, 209 N.J. Super. 155, 163 (App. Div. 1986), or the court's ruling is "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[,]'" Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Here, plaintiff clearly demonstrated that his loss of employment was entirely unanticipated and not the result of any voluntary action on his part. After a seventeen-month job hunt, which from the record presented appears to have been made in earnest, he was able to garner a regular paycheck. However, it was at a level substantially below his pre-divorce earnings of $105,000 per year. We do not know if this represents a circumstance of under-employment any more than if defendant's illness now prevents her from seeking gainful employment.

The motion court erred by unduly focusing on plaintiff's year-long failure to pay alimony following the first round of motions in 2011. After roundly criticizing plaintiff "you did nothing, not even a good faith attempt, during the interim while you were going to mediation" the court concluded that plaintiff's

income obviously was was eliminated, reduced . . . a significant amount, and then . . . it's gone back up to where it was when the divorce started, give or take a couple of thousand dollars.

So, there's no reason to have a a hearing to take testimony about that which we already know. There're not in dispute. The only dispute was whether you had an obligation and whether you followed the obligation during the time frame in the middle. We know you didn't. That's the problem.

In so concluding, the court failed to address the material difference between the PSA's reported 2009 income of $105,000 and plaintiff's 2012 income of $82,000, a decrease of almost twenty-two percent. We find no factual support for the conclusion that this was "give or take a couple of thousand dollars." Indeed, this income change presents a Lepis-quality changed circumstance.

Although there may be merit in the motion court's impression that a plenary hearing might not yield more information than was already available, we are not confident that the motion record alone is comprehensive enough for the court to fully address the myriad factors of N.J.S.A. 2A:34-23. Surely, plenary hearings are granted when there are material facts in dispute. See Pacifico v. Pacifico, 190 N.J. 258, 267 (2007). Notwithstanding both parties' constrained financial conditions, we believe that the court and the parties would benefit from an exploration perhaps limited, to preserve assets of their respective income potentials, employability, states of health, and any other relevant indicia that would allow the Family Part to exercise principled discretion in determining plaintiff's alimony obligation going forward.

We do not suggest that the Family Part must reduce plaintiff's alimony obligation. The trial court should conduct an evidentiary hearing in the event further review of the record reveals a genuine issue of material fact. We leave open to the Family Part's discretion to what extent, if any, the totality of the circumstances impels a permanent change in the alimony component of the PSA. However, that court must now treat plaintiff's current employment situation and lessened income (and defendant's present health concerns) as significant vectors affecting the ultimate determination of a fair and reasonable alimony award.

We reverse and remand for further proceedings in accordance with this opinion. We do not retain jurisdiction.

1 An illness presenting after the judgment of divorce is also a recognized changed circumstance. Lepis, supra, 83 N.J. at 151. Thus, defendant's cancer diagnosis and treatment must be factored into the court's overall analysis.