MARTIN W. BEYER v. MAUREEN BEYER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6078-06T36078-06T3

MARTIN W. BEYER,

Plaintiff-Appellant,

v.

MAUREEN BEYER,

Defendant-Respondent.

___________________________________________

 

Submitted March 11, 2008 - Decided

Before Judges Coburn and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1303-92A.

Nemergut & Duff, attorneys for appellant (Howard Duff, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Martin W. Beyer appeals from the denial of his motion for termination of his obligation to make alimony payments to his former wife, defendant Maureen Beyer. Plaintiff had sought termination of his alimony payments because of the decrease in his income due to his retirement. In denying the motion, the trial court found that plaintiff had sufficient income and assets to make the alimony payments. However, in reaching that determination, the trial court misread the financial documents, thereby attributing more income to plaintiff than was actually reflected in the papers. Accordingly, we reverse and remand.

The parties were married in 1962 and were divorced thirty-two years later in 1994. At the time of the divorce, plaintiff was fifty-four years old, defendant was fifty-two years old, and the three children of the marriage were emancipated. The Judgment of Divorce dated January 14, 1994, incorporated the agreement reached by the parties on the financial issues. Paragraph three of the Judgment of Divorce requires plaintiff to pay defendant alimony payments of $150 per week.

Plaintiff brought this application to terminate his alimony payments on the basis that his circumstances had changed due to his health problems that included his treatment for cancer, his loss of employment, and his desire to retire at the age of sixty-eight. Plaintiff has remarried, and he stated in his certification to the trial court that the income from his second wife primarily pays for their household bills.

In her opposition to the application before the trial court, defendant indicated that she has also been treated for cancer, and continues to have health problems. She lost her job when her employer downsized its work force, and she is no longer employed. Defendant has not remarried. One adult son of the marriage who has mental health problems lives with defendant, and she pays for his psychiatric care. Defendant questioned the completeness of plaintiff's disclosure of his assets and income.

The trial court denied plaintiff's motion to terminate his alimony payments based on the papers submitted without holding a plenary hearing. The trial court found that plaintiff had adequate resources to allow him to continue to make the alimony payments. Plaintiff appeals this decision, arguing that his retirement was a change in circumstances entitling him to a hearing and that the trial court erred in its analysis of the financial materials submitted. Defendant submitted to this court no papers in opposition to this appeal. We reverse.

While a person who retires is not automatically entitled to a reduction in alimony payments, a good faith retirement may constitute changed circumstances, and provide the basis for a reduction in an award of permanent alimony. Sylvan v. Sylvan, 267 N.J. Super. 578, 581-82 (App. Div. 1993). In determining whether a reduction in alimony is warranted, the court should consider such factors as the ages of the parties, whether the parties had considered retirement when the alimony award was first made, whether the retirement was mandatory or voluntary, whether the retirement was earlier than the parties anticipated, the financial impact of the retirement and the respective financial positions of the parties, the reasons for the decision to retire, the control the retiree has over disbursement of retirement income, and any transfers of assets, as well as other relevant factors. Ibid.

In denying plaintiff's application for a reduction in alimony payments due to his retirement, the trial court erred in its analysis of the fiscal data submitted by plaintiff. The trial court mistakenly treated plaintiff's year-to-date income figures on the Case Information Statement (CIS) (covering a period of three and one-half months), as monthly income figures, thereby attributing to plaintiff significantly more income than he had. Specifically, the trial court attributed to plaintiff social security retirement benefits of $7,156 a month, rather than the $1,789 monthly benefit reflected in his CIS and certification. The trial court also said that plaintiff had reported $9,000 in gross earned income in 2006, when the correct figure was $5,000.

The mistake regarding plaintiff's income was material. An analysis of the figures submitted to the trial court by the parties indicates that once the alimony payments are made, defendant will end up with more income than plaintiff, the supporting spouse. The record indicates that before an adjustment is made for the alimony payments, plaintiff's monthly income is $3,199 per month, and defendant's monthly income is $3,002.59 per month.

Once an adjustment is made for the alimony payments of $600 per month, plaintiff, the supporting spouse, is left with less income than defendant, the dependent spouse, that is, plaintiff's monthly income is reduced to $2,599, and defendant's income is boosted to $3,602.50. Due to the mistake in determining plaintiff's income, this inequity was not recognized by the trial court. A support award made at the time of the divorce remains enforceable without modification only so long as it remains "fair and equitable." Lepis v. Lepis, 83 N.J. 139, 148-49 (1980).

We need not defer to the fact-findings of a trial court where those findings are inconsistent and unsupported by the credible relevant evidence so as to offend the interests of justice. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Due to the mistake in the monthly income figures noted above, a major underpinning for the trial court's decision, namely, the amount of plaintiff's income and his ability to pay, fails.

 
Reversed and remanded.

Paragraph two fixes the initial alimony payments at $105 per week, and paragraph three provides that the alimony payments shall increase to $150 per week once the marital home is sold. The Judgment of Divorce provides that the alimony payments will terminate upon the occurrence of any one of the following events: defendant's remarriage, defendant's full time cohabitation with a male unrelated to her, or the death of either party.

According to the certification plaintiff submitted to the trial court, plaintiff's average monthly income is $3,199, consisting of Social Security Retirement Benefits of $1,789 per month, investment income of approximately $1,204 per month, and his share of defendant's pension of $206 per month. These monies amount to $38,388 per year before taxes. The CIS required plaintiff to list his income year-to-date, which encompassed the time from January 1, 2007 to April 18, 2007, a period of three and one-half months. The year-to-date income amounted to $11,375, which included interest income totaling $63, certificate of deposit interest totaling $2,282, dividends totaling $1,050, pension payments totaling $824, and social security payments totaling $7,156. From the wording of the trial court decision, it is unclear whether the trial court mistakenly treated all of these figures or only the social security benefits as monthly income figures rather than year-to-date totals.

Defendant indicated in her certification to the trial court that her monthly income consists of $1,273.42 in pension payments, $1,678.50 in Social Security Retirement Benefits, and $50.67 in dividend interest. These sums total $3,002.59, and do not include her alimony payments. These figures were substantially confirmed by her CIS.

(continued)

(continued)

6

A-6078-06T3

April 4, 2008