BARBARA BAKER v. TED H. BAKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BARBARA BAKER,

Plaintiff-Respondent,

v.

TED H. BAKER,

Defendant-Appellant.

_______________________________________________________

April 24, 2015

Argued February 3, 2015 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-660-97.

Paris P. Eliades argued the cause for appellant (Paris P. Eliades Law Firm, LLC, attorneys; Mr. Eliades, on the brief).

Andrew R. Bronsnick argued the cause for respondent (Massood & Bronsnick, LLC, attorneys; Mr. Bronsnick, of counsel and on the brief).

PER CURIAM

Defendant Ted H. Baker appeals from the October 31, 2013 Family Part order denying his motion to terminate his alimony obligation. For the reasons that follow, we affirm.

I.

Married in 1975, the parties were divorced on December 18, 1998 pursuant to a judgment of divorce that incorporated their property settlement agreement (PSA). In the PSA defendant agreed to pay plaintiff Barbara Baker $10,000 per month in permanent alimony.

At the time of the divorce, defendant was a managing director at Pershing Trading Company earning $790,000 per year; all but $120,000 resulting from an annual bonus. In May 2005, Pershing terminated defendant's position after it was acquired by another company. At the time he was terminated, defendant earned over $900,000 per year.

In 2005, defendant obtained a new position as CEO of Olson Global Markets (Olson). Defendant expected to receive a salary of $120,000 with the potential for bonuses commensurate with his earnings at Pershing. However, defendant received no salary or bonuses during his time at Olson. Rather, defendant maintains the situation at Olson was so dire he lent the company $138,000 from his own funds.

In light of the decline in his earnings, defendant filed a motion in March 2008 seeking a reduction in his monthly alimony obligation. Following oral argument, the trial court denied defendant's application without a plenary hearing. Defendant appealed and we reversed and remanded for a plenary hearing. Baker v. Baker, No. A-4688-07 (App. Div. Mar. 23, 2009) (slip op. at 6-7).

While the plenary hearing was pending, defendant filed two motions for interim relief, which the court denied. At some point, however, plaintiff voluntarily agreed to temporarily accept $8000 per month in alimony.

The court held the plenary hearing over the course of three days in July 2010. At the conclusion, the trial court granted defendant a temporary reduction in his alimony obligation to $6666 per month, effective August 1, 2010. Defendant appealed the amount of the reduction and the effective date. On May 6, 2011, this court affirmed the trial court's reduction in defendant's alimony obligation, but determined that the modification should have been retroactive to March 25, 2008, given the "substantial period of time that elapsed between the time defendant filed his motion and the time he was granted relief in July 2010[.]" Baker v. Baker, No. A-0777-10 (App. Div. May 6, 2011) (slip op. at 24). We concluded that defendant was entitled to a credit of $1000 per month for the overpayment of alimony.

Defendant resigned from Olson in 2012 as the company was allegedly closing for business.1 In December 2012, defendant filed a motion to terminate his alimony obligation. The court held a plenary hearing over three non-consecutive days. Defendant testified concerning his efforts to find paid employment in his field. Defendant noted that during his time with Olson, he had several potential opportunities for paid work, but they all failed. Defendant claimed that few, if any, positions were available on Wall Street earning between $200,000 and $400,000 and that his difficulty in securing paid employment was likely due to his advanced age.2 Defendant also testified that he had been forced to take out a home equity line of credit, reduce his brokerage account from $1,000,000 to less than $200,000, and liquidate his 401(k) in order to meet his alimony obligation.

Defendant asserted that he sent plaintiff multiple letters in 2007 and 2011 detailing his financial problems, but that plaintiff did not seek employment opportunities, downsize, or otherwise attempt to mitigate against a possible reduction in alimony. Defendant maintained that plaintiff could have obtained employment as she had several jobs during the course of their marriage, including as a bookkeeper and auditor.

Plaintiff also testified. She explained that she made several efforts to reduce her dependence on alimony and to minimize her monthly expenses, including selling the marital residence in New Jersey and moving to Wisconsin, and eliminating internet and cell phone service. Moreover, plaintiff claimed that she suffers from CREST, a chronic and incurable disease, which she alleges has "prevent[ed] her from functioning in a normal manner." Plaintiff also reiterated that she "was a stay-at-home mother, never had gainful employment during the marriage and does not have a vocation of any type."

On October 31, 2013, the trial court issued its decision denying defendant's request to terminate alimony. In arriving at that decision, the court concluded that "there's been no substantial change in circumstances since the last motion on the [d]efendant's side of the equation." Moreover, the court determined that termination of alimony was not warranted as defendant had voluntarily retired. Specifically, the court found that defendant had not acted in good faith as demonstrated by the fact that he voluntarily went several years without receiving any income from Olson while at the same time loaning the company $138,000. The court also found that instead of seeking a position that would enable him to pay alimony, defendant was "interested in high paying jobs only." The court noted that defendant "scoffed at the idea of taking a job" in alternative areas, such as teaching or consulting, and that any job that paid less than $100,000 was considered "beneath him[.]" Taking all the circumstances into consideration, the court imputed to defendant an income of $120,000, reasoning that this was his base salary at both Pershing and Olson and was similar to what he could earn at a job in another field.

The court also determined that termination of alimony was unwarranted in light of defendant's improved financial situation. The court noted that defendant had received a substantial reduction in his alimony obligation and consistently grossed about $170,000 in unearned income from 2005 through 2012. While the court found that defendant had reduced some of his living expenses, the court was concerned that he was not actively paring down his monthly expenses, such as selling several of his motorcycles or having his girlfriend, who lives with him in his Florida house, contribute to the household.

In reviewing plaintiff's finances, the court found that terminating alimony would be an "extreme hardship" for plaintiff as she had "not worked since the 1970s[]" and suffers from medical conditions that will prevent her from becoming employed. The court also determined that plaintiff has limited funds available to her and no other sources of income aside from $1700 per month in Social Security benefits.

While declining to terminate alimony, the court determined that a $1000 reduction was warranted because plaintiff was turning sixty-five and would be eligible for Medicare, thus saving almost $10,000 on insurance. The court also decided that plaintiff's obligation to repay the alimony overpayment, as ordered by this court, should be restructured to require plaintiff to pay $500 a month to defendant instead of $1000. Thus, the court ordered defendant to pay $5166 per month in alimony. This appeal followed.

On appeal, defendant argues that the trial court erred in (1) not finding that his circumstances have permanently changed; (2) applying the wrong standard in considering his application to terminate alimony; (3) imputing an income to him without any reference to his ability to pay; (4) failing to impute an income to plaintiff; and (5) requiring him to invade assets exempt from calculating alimony, including his retirement accounts and assets protected by the PSA.

II.

We begin with a review of the well-settled principles that guide our analysis. Alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. To make such a modification, the movant must show "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (internal quotation marks and citations omitted); see also Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). Temporary or anticipated circumstances do not warrant modification. Lepis, supra, 83 N.J. at 151. Rather, "[t]he party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Id. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)).

"There is . . . no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation. Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience . . . [and all] relevant circumstances presented[.]" Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006)). 3 "Each and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell, supra, 21 N.J. at 355). Furthermore, since the Family Part has special expertise in family matters, and has had the opportunity to hear and see the witnesses testify firsthand, its findings of fact should be accorded deference on appeal. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Thus, an alimony modification will not be overturned on appeal absent an abuse of discretion

To vacate a trial court's findings in a proceeding modifying alimony, an appellate court must conclude that the trial court clearly abused its discretion, failed to consider "all of the controlling legal principles," or it must otherwise be "well satisfied that the finding[s] [were] mistaken," or that the determination could not "reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole."

[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (citations omitted).]

Retirement may constitute a change in circumstances warranting a modification or elimination of alimony. See, e.g., Silvan v. Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993); Deegan v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992). The court's analysis differs depending on whether the retirement was voluntary or involuntary. See Deegan, supra, 254 N.J. Super. at 355-56. "Where the change is involuntary, all that is required is an analysis of the . . . parties' financial circumstances." Id. at 355. When the change is voluntary, courts consider a number of factors, including the age and health of the retiring party, whether the retirement was made in good faith, the retiring spouse's ability to pay alimony following the retirement, the expectation of the parties at the time the PSA was executed, and the ability of the dependent spouse to provide for him or herself. Id. at 357-58. After reviewing these factors, the court must determine "whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse." Id. at 358.

III.

Applying these principles, we are convinced that the trial court did not abuse its discretion in finding that there was no change in circumstances since defendant's last motion to modify his alimony obligation. In reviewing defendant's motion, the court "was not required to wipe the slate clean[.]" Donnelly, supra, 405 N.J. Super. at 127. Rather, the court properly focused on the change in circumstances and "length of time that ha[s] elapsed since the last milepost in these post-judgment proceedings." Id. at 127-28. Under that analysis, it is clear that defendant's finances have improved since the last modification as evidenced by the reduction in his alimony obligation and the fact that his pre-alimony unearned income increased from approximately $175,000 to $240,000. At the same time, the court's finding that defendant made no meaningful effort to "slow[] down his pace as far as spending was concerned" was supported by the record, which showed that his expenses were "consistent" with those from 2010 when his alimony obligation was first modified.

Nor did the trial court abuse its discretion in determining that defendant voluntarily retired. The court's findings were amply supported in the record, which demonstrated that defendant voluntarily remained with Olson for several years without drawing a salary and after lending a substantial amount of money, which has not been repaid. While the trial court acknowledged defendant's efforts to find a high-paying Wall Street job, the court noted that defendant "scoffed" at the idea of taking a "regular job" such as teaching or consulting. The judge specifically found that he did not find defendant's testimony about his efforts to find employment credible. Further, the court properly weighed the competing interests of the parties and determined that termination of alimony would be detrimental to plaintiff, who lacks other sources of income aside from a limited Social Security payment and who has been out of work for over thirty years. See Deegan, supra, 254 N.J. Super. at 358.

II.

We also reject defendant's argument that the court erred in imputing an income of $120,000 to him. Courts may impute income "to a party who is voluntarily unemployed or underemployed." Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citations omitted). "Imputation of income is a discretionary matter" and is based on the court's evaluation of the party's "capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004) (citations omitted). In assessing whether to impute income, the trial court must take into account whether that spouse has the ability to pay. See Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). That is, courts must "assess the current financial earnings and assets of each party, [as well as] consider each person's future ability to earn and contribute to his or her support." Reese v. Weis, 430 N.J. Super. 552, 569 (App. Div. 2013).

The income imputed to defendant reflected his $120,000 salary at Pershing and his expected salary at Olson. Further, the court found that this was a reasonable and realistic amount considering defendant's extensive credentials and experience. The court determined that defendant would have found a similar paying job had he been willing and made a good faith effort to broaden his job search. Additionally, the court's finding that defendant had the ability to continue to pay alimony was amply supported in the record. The court engaged in an extensive review of both defendant's and plaintiff's expenses, income, and earning capacity. Based on this review, the court determined that defendant had the capacity to earn an income that would permit him to meet his alimony obligation and support himself. See Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 352 (App. Div. 2009) (noting that ability to generate income is one measure that courts consider in assessing whether a spouse can pay). Moreover, it is clear that had defendant not relinquished his salary at Olson, he would have earned more than enough to continue to meet his alimony obligation.

Similarly, we reject defendant's argument that the trial court should have imputed an income to plaintiff. The record amply demonstrates that plaintiff is sixty-four years old, has not worked in over thirty years, and lacks a college degree or vocational skills. While plaintiff claimed that she had a health condition that prevented her from working, the trial court did not rely on this fact. Additionally, this issue was already decided in our May 2011 decision and defendant has not raised any change of circumstances regarding plaintiff that would warrant revisiting our previous decision. See In re Estate of Stockdale, 196 N.J. 275, 311 (2008) ("[The law of the case] doctrine merely operates to prevent relitigation of a previously resolved issue."); see also Baker v. Nat'l State Bank, 353 N.J. Super. 145, 170 (App. Div. 2002) ("[The law of the case] doctrine most commonly applies to the binding nature of appellate decisions . . . [where] a different appellate panel . . . [is] asked to reconsider the same issue in a subsequent appeal.") (citations and quotation marks omitted).

Finally, we find unpersuasive defendant's argument that the trial court's decision impermissibly required him to invade his retirement assets and assets protected under the PSA. The court's order did not require defendant to invade protected assets; rather, it was defendant's choice to use his retirement assets to pay alimony. Moreover, defendant would not have had to use his assets had he made a good faith effort to find a job. As the trial court found, defendant could have easily obtained a job given his considerable connections and experience.

Affirmed.

1 The trial court found that Olson was still operating as of October 31, 2013, when it issued its decision.

2 At the time of his application to terminate alimony, defendant was sixty-three years old, having been born in 1949.

3 We recognize that N.J.S.A. 2A:34-23 has been revised, effective September 10, 2014, to provide more specific guidelines for alimony modifications. See N.J.S.A. 2A:34-23(j). The new alimony law does not apply to this motion, which was decided before the effective date.