ARLEEN T. SMITH v. JEFFREY T. SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4118-11T2

ARLEEN T. SMITH,

Plaintiff-Respondent,

v.

JEFFREY T. SMITH,

Defendant-Appellant.

_______________________________

August 2, 2013

Submitted January 16, 2013 - Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1001-99C.

Law Offices of James M. Newman & Associates, LLC, attorneys for appellant (Sebastian Ferrantell, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Jeffrey T. Smith appeals from the denial of his post-judgment motion to terminate his alimony obligation. We affirm.

The parties were divorced in 1999, after a forty year marriage. Plaintiff is seventy and defendant seventy-one years old. Each of them has one of their four emancipated children living with them. One of the parties' daughters and her ten-year-old-daughter live with plaintiff. Another daughter, her husband and their ten-year-old triplets live with defendant. Both parties claim to receive no financial support from these adult children living in their households.1

At the time of their divorce, defendant was employed as a delivery driver for the New York Daily News earning approximately $90,000. The parties' judgment of divorce required defendant to pay alimony of $500 per week. The court reduced that sum to $350 in January 2011, following defendant's loss of his job, and further reduced it to $250 when his unemployment benefits ended.

This latest round of post-judgment motions began with plaintiff moving in aid of litigant's rights to collect alleged alimony arrears of approximately $20,000. Plaintiff certified that she worked as a retail sales clerk earning $15 per hour and that her employer limited her hours to between twenty-eight to thirty hours per week. She claimed to suffer from an irregular heartbeat, which required muscle relaxants and medication to control, and noted that her job required her to be on her feet all day. She certified that her credit card debt exceeded $38,000, that she was two quarters behind on her property taxes, and that her condominium association was threatening her with legal action as she owed over $3500 in maintenance fees. She claimed to be totally dependent upon defendant's support payments to survive.

Defendant cross-moved to retroactively reduce his alimony and to terminate it going forward. Defendant certified that he was not in arrears of approximately $20,000, because he was entitled to credits of over $11,000 going back before their divorce was finalized. He claimed he was terminated from his job in 2009, grieved it, and officially retired in 2011. He averred that he has "tried to get other employment" but when "the company sees my age[,] they laugh at me." He claimed to suffer from high blood pressure, an enlarged prostate, emphysema and psoriasis. He certified that "[d]riving a truck is really a young man's profession that I cannot do any longer."

The motion judge denied defendant's motion to terminate his alimony but further reduced it to $140 per week, without prejudice, retroactive to the filing date of his cross-motion.2 In a written statement of reasons, the judge noted the parties' ages and the difficult financial circumstances both were facing. Although accepting defendant's explanation of his termination and subsequent retirement, the judge noted that he had not produced any proof that he could not obtain a "DOT card" which he needed to continue work as a truck driver.3

Notwithstanding, as both plaintiff and defendant were past the traditional age of retirement, the judge determined that "both parties may work to obtain additional income to supplement their lifestyles, but [the court] will not require either party at this stage in each party's life to continue working for purposes of calculating alimony." The court accepted defendant's projected income for 2012 of $32,907, consisting of $26,907 from Social Security and $6000 in pension income.

Because plaintiff was almost the same age as defendant and thus presumably likewise desirous of retiring could she afford to do so, the judge determined that "[s]he shall also be entitled to retire just as defendant has done." Therefore declining to consider her earned income for purposes of calculating alimony, the court found that in 2012 plaintiff would receive $12,375 in Social Security benefits and $6000 from defendant's pension for a total of $18,375. Taking into account each party's inability to meet their financial needs, the judge equalized the difference in their incomes by awarding plaintiff $140 per week in alimony.

On appeal, defendant contends that he lost his employment due to his physical condition and that his age and poor health "entitled [him] to relief from the bonds of his obligation to plaintiff." He makes no specific argument challenging any of the court's findings or legal conclusions. Instead, he argues only that his alimony obligation should end.

Leaving aside that defendant failed to prove to the trial court that he could not qualify for a commercial driver's license for health reasons, his argument ignores the court's obligation to consider plaintiff's needs as well as his own. See Deegan v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992) (noting that where a payor-spouse's good faith retirement results in a significant disadvantage to a dependent spouse, the party is free to retire - "[t]he only limitation is discontinuance of the financial aid the former spouse requires"). We are satisfied that the trial court considered the parties' ages, their health, defendant's good faith in retiring, his ability to pay support and plaintiff's needs and ability to support herself in reducing defendant's alimony obligation. Id. at 357-58. Because we do not find that the judge abused her significant discretion in determining to substantially reduce, but not eliminate, defendant's alimony obligation on this record, we affirm. N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 145 (1980).

Affirmed.

1 In a certification submitted to the court in 2002 on a prior motion and included in his appendix, defendant certified that he lived with his daughter and son-in-law and their triplets and that "[w]e assist one another in our combined expenses, since neither of us can do it on our own." He does not explain the change in his motion papers.

2 The judge ordered defendant to provide his income tax returns to plaintiff on an annual basis. She noted that should defendant obtain the ability to make alimony payments consistent with prior orders, "[p]laintiff shall have the ability to move for such relief." The judge also ordered the Probation Department to conduct an audit of defendant's account, establish a payment schedule for any arrears determined to be owed, and award plaintiff $2000 in counsel fees on her enforcement motion. Defendant has not appealed from those provisions of the order.

3 While defendant has included in his appendix a copy of a document to support the assertion that the "Department of Transportation revoked his commercial driver's license due to his physical condition," that document does not appear to have been presented to the trial court. Accordingly, it is not properly included in the appendix and we do not consider it. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007); Cipala v. Lincoln Technical Inst., 179 N.J. 45, 52 (2004); see also Pressler & Verniero, Current N.J. Court Rules, comment on R. 2:5-4(a) (2013).