FATEN O. IBRAHIM v. OSAMA IBRAHIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3710-04T33710-04T3

FATEN O. IBRAHIM,

Plaintiff-Respondent,

v.

OSAMA IBRAHIM,

Defendant-Appellant.

_________________________________________________

 

Submitted February 15, 2006 - Decided April 17, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Sussex County, FM-19-361-96.

Donald M. Onorato, attorney for appellant.

Faten Ibrahim, respondent, filed a pro se brief.

PER CURIAM

Defendant Osama Ibrahim appeals from the denial without prejudice of his motion to reduce or eliminate his permanent alimony obligation based on an alleged change of circumstances arising when he was laid off by his employer, Kraft Foods, from his position as a microbiologist. We affirm.

Plaintiff Faten Ibrahim (wife) and defendant Osama Ibrahim (husband) were married on April 10, 1969 and divorced after a thirty-year marriage on July 28, 1999. At the time of divorce, a property settlement agreement was entered that provided husband would, following a four-year period of elevated payments of $250 per week, pay permanent alimony to wife in the amount of $200 per week. The agreement further provided that alimony would terminate automatically if husband retired at the age of sixty-five, and that he could make application for a termination of alimony if he retired at an earlier age.

On February 4, 2003 husband's alimony obligation was increased to $472 per week effective until July 14, 2003 (the fourth anniversary of the property settlement agreement) and retroactive to April 2001, and thereafter reduced to $422 per week. The increase was premised upon a finding of changed circumstances, arising from husband's Chapter 13 bankruptcy, which resulted in a substantial reduction in debt service paid by husband on joint marital debt of approximately $95,000 from $1900 to $500 per month and the discharge of the remainder of the debt after three years; upon a finding of husband's concomitant increased ability to pay alimony; and upon a finding of need on the part of wife as the result of continuing medical expense. Arrears of $15,456 were found to exist, and a payment plan was specified in the court's February 4 order requiring in relevant part repayment at a rate of $100 per week. Counsel fees were also assessed against husband in the amount of $12,114.25, payable at a rate of $350 per month.

We affirmed the court's order on appeal in an unreported decision. Ibrahim v. Ibrahim, Docket No. A-3288-02T1 (App. Div. April 5, 2004), and we awarded wife a $2,500 counsel fee on appeal.

On February 29, 2004, husband was laid off from his employment with Kraft at the age of sixty-two. He alleges that his unemployment benefits expired on August 27, 2004, and his severance payments ended in December 2004. He has not paid alimony since that latter date.

In a motion filed in the Family Part in January 2005, husband sought to reduce or eliminate his alimony obligation. Wife opposed the motion, and in a cross-motion she sought to compel the payment of arrears and other relief. In support of his motion, husband stated that he would be sixty-three years old in October 2005. Although he has a Ph.D. in chemistry, husband stated that the soft job market for scientists in research and development precluded his reemployment, especially as an older person. Husband claimed that his $1,371 per month social security payment was insufficient to pay his $2,638.88 per month obligation for alimony, arrears and counsel fees, of which approximately $1,825 per month constituted his current alimony obligation. Husband did not acknowledge his pension as an additional source of income available for payment of his post-divorce obligations, and claimed that the pension payments were exempt.

In orders dated March 4 and 8, 2005, the relief sought by husband was denied. The judge properly found that income from husband's pension, which had not vested at the time of his divorce and was not the subject of equitable distribution, could be used to determine income for purposes of calculating husband's ability to pay and his consequent alimony obligation. Compare Innes v. Innes, 117 N.J. 496, 506 (1989) (holding that income from pension benefits that have been treated as an asset for purposes of equitable distribution cannot be considered in determining alimony, because it would constitute double dipping).

The judge found additionally that the husband had failed to present evidence of an effort to obtain employment from February to August 2004, and that his information regarding any job searches subsequent to that time period was "very sparse," with the exception of "some stuff in October." The judge concluded:

The Court is not satisfied that [husband] has made out a prima facie case for the Court to modify alimony at this time. [The motion is] denied without prejudice to [husband] making an appropriate application with the appropriate supporting documentation.

Husband did not seek to present additional evidence, but instead on March 28, 2005 filed his notice of appeal from the court's order denying a reduction or termination of alimony.

N.J.S.A. 2A:34-23 provides statutory authority to modify an award of permanent alimony if such modification is warranted by a change in circumstances. See also Lepis v. Lepis, 83 N.J. 139, 145 (1980). When, as here, existing employment has been involuntarily terminated, "whether a spouse may voluntarily retire will depend on the individual circumstances of the particular case." Deegan v. Deegan, 254 N.J. Super. 350, 352 (App. Div. 1992).

In this case, the Family Part judge evaluated the evidence offered by husband and determined that husband's "retirement" was premised only upon the assumption by husband that his employment skills were not marketable. However, the trial judge found that husband had not established a sufficient evidential foundation for that assumption, since husband's educational and job skills were manifest and his efforts at obtaining re-employment were in large measure negligible. As a consequence, the judge found that prima facie evidence to support a claim of changed circumstances was lacking. Significantly, the judge did not preclude husband from making a better case in a future motion, and offered that option when denying husband's existing motion without prejudice. Husband has declined the court's invitation.

Our review of the court's factfinding is limited in nature to a consideration of whether the court's determination is supported by adequate, substantial, credible evidence, and further constrained by the deference that we accord to Family Part judges in this circumstance. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). When viewed in that light, we are satisfied from our review of the record that the court's findings are not so manifestly unsupported by or inconsistent with the competent and reasonably credible evidence as to offend the interests of justice, and that the court's legal conclusion was soundly premised upon existing law. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div 1998); Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331-32 (App. Div 1992). The court's decision to deny as factually unsupported husband's motion based upon an alleged change of circumstances is thus affirmed.

We decline to address wife's requests for relief in the nature of enforcement, which are not appropriately before us, since wife did not file a cross-appeal in this matter. Burbridge v. Paschal, 239 N.J. Super. 139, 150-52 (App. Div.), certif. denied, 122 N.J. 360 (1990).

Affirmed.

 

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A-3710-04T3

April 17, 2006