ELISABETH ADAMS, n/k/a ELISABETH SCOTT v. GARY ADAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1105-07T21105-07T2

ELISABETH ADAMS, n/k/a ELISABETH

SCOTT,

Plaintiff-Respondent,

v.

GARY ADAMS,

Defendant-Appellant.

_____________________________________

 

Submitted August 12, 2008 - Decided

Before Judges Sapp-Peterson and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1156-01S.

Apicelli & Costanzo, attorneys for appellant (Nicholas C. Apicelli, on the brief).

Corinne Campi, attorney for respondent.

PER CURIAM

Defendant Gary Adams appeals from the September 7, 2007 order denying his motion to modify/reduce alimony payable to plaintiff, Elizabeth Scott (formerly Adams), and also denying his request to reduce the amount of life insurance he was obliged to maintain on plaintiff's behalf, in accordance with the parties' property settlement agreement (PSA). We affirm.

A final judgment of divorce (FJOD) was entered on June 11, 2002. Incorporated into the FJOD was a PSA dated March 19, 2002. Of significance to this appeal are the PSA provisions related to alimony. Under the agreement, "[Defendant] shall pay to [plaintiff] for her support and maintenance permanent alimony in the amount [of] $275.00 per week to be paid as follows: $596.00 by the fifteenth of each month; $596.00 by the 30th of each month." The PSA also provides that termination of alimony was conditioned upon plaintiff's death; remarriage; or co-habitation, in accordance with Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). Finally, the agreement states that repudiation or modification of the PSA could only occur by mutual consent, in writing, duly executed by the parties and witnessed, or as a result of defendant's death.

At the time of the divorce, defendant was a twenty-four- year veteran of the Morris Township Police Department earning approximately $95,000 annually. Defendant retired from the police force effective August 1, 2007, allegedly to avoid forfeiture of his entire pension if charges that had been lodged against him were proven. At the time of his retirement, defendant was earning $120,321, inclusive of overtime earnings. Following his retirement, defendant secured new employment as Director of Security at Maple Gardens in Irvington earning $65,000 annually.

Also on August 1, 2007, defendant filed a motion in the Family Part seeking a reduction in his alimony obligation commensurate with his then existing circumstances, a reduction in his life insurance obligation, and counsel fees. Plaintiff filed a cross-motion requesting that the court (1) deny any modification of support, (2) compel defendant to maintain a $175,000 life insurance policy on her behalf, and (3) direct that all alimony payments be paid to her through the probation department.

The court issued a tentative decision denying defendant's motion. Thereafter, the court conducted oral argument and then formally denied the motion. The court incorporated the findings that were set forth in its tentative decision into its order. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

TO DETERMINE WHETHER THERE HAS BEEN A CHANGE IN CIRCUMSTANCES THAT WARRANTS A REDUCTION IN SUPPORT, A COMPARISON MUST BE MADE BETWEEN THE PARTIES' FINANCIAL CIRCUMSTANCES AT THE TIME THE MOTION FOR RELIEF IS MADE WITH THE CIRCUMSTANCES WHICH FORMED THE BASIS FOR THE LAST ORDER FIXING SUPPORT OBLIGATIONS. ONCE THE MOVANT ESTABLISHES A PRIMA FACIE CASE OF CHANGED CIRCUMSTANCES, THE JUDGE MUST EXAMINE THE PARTIES' FINANCIAL SITUATION AND, IF WARRANTED, CONDUCT A HEARING TO RESOLVE DISPUTED MATERIAL FACTS.

POINT II

THE FACTORS RELEVANT TO THE REASONABLENESS AND RELATIVE ADVANTAGES OF A CAREER CHANGE OR EARLY RETIREMENT INCLUDE: THE REASONS FOR THE CAREER CHANGE (BOTH THE REASONS FOR LEAVING PRIOR EMPLOYMENT AND THE REASONS FOR SELECTING THE NEW JOB); DISPARITY BETWEEN PRIOR AND PRESENT EARNINGS; EFFORTS TO FIND WORK AT COMPARABLE PAY; THE EXTENT TO WHICH THE NEW CAREER DRAWS OR BUILDS UPON EDUCATION, SKILLS AND EXPERIENCE; THE AVAILABILITY OF WORK; THE EXTENT TO WHICH THE NEW CAREER OFFERS OPPORTUNITIES FOR ENHANCED EARNINGS IN THE FUTURE; AGE AND HEALTH; AND THE FORMER SPOUSE'S NEED FOR SUPPORT. THE LIST IS NOT EXHAUSTIVE.

POINT III

SINCE THE PURPOSE OF LIFE INSURANCE IS TO ASSURE A SUFFICIENT FUND FOR THE PAYOR'S SUPPORT OBLIGATIONS SHOULD HE PREDECEASE THAT RESPONSIBILITY, TO THE EXTENT THAT A DEATH BENEFIT EXCEEDS THE AMOUNT REQUIRED TO FUND THE BALANCE OF THE OBLIGATION, THE TRIAL JUDGE SHOULD REDUCE THE OBLIGATION TO MAINTAIN THE AMOUNT OF INSURANCE TO COMPORT WITH THE NATURE AND EXTENT OF THE SUPPORT OBLIGATIONS.

We have considered the points raised in light of the record and applicable legal principles and conclude there is substantial credible evidence in the record to support the factual findings of the trial court. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons outlined in Judge Alan J. Pogarsky's written findings and decision included in the September 7, 2007 order of the court. We add only the following comments.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

"[O]rders pertaining to alimony or other support 'may be revised and altered by the court from time to time as circumstances may require.'" Gibbons v. Gibbons, 86 N.J. 515, 525 (1981) (quoting N.J.S.A. 2A:34-23). Alimony obligations are subject to review and modifications based upon a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citing Chalmers v. Chalmers, 65 N.J. 186, 192 (1974); Martindell v. Martindell, 21 N.J. 341, 352-53 (1956); Boorstein v. Boorstein, 142 N.J. Eq. 135 (E. & A. 1948); Parmly v. Parmly, 125 N.J. Eq. 545, 548-49 (E. & A. 1939)). "The party moving for modification 'bears the burden of making a prima facie showing of changed circumstances.'" Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).

 
Here, the court determined that under the PSA, the parties specifically identified events that triggered termination of alimony and that none of the triggering events had occurred. The court also determined that defendant failed to present any proof "beyond mere assertion" that he was forced to retire or that his capacity to earn a comparable salary had been reduced. Further, the court found that defendant had not demonstrated that his reduced salary was other than temporary. Additionally, there was no dispute that defendant was in arrears with respect to his alimony obligations. Based upon this record, the court properly denied defendant relief, and there was no basis upon which to grant a plenary hearing on any of the issues raised. We are satisfied the court's findings are amply supported by substantial credible evidence in the record. Cesare, supra, 154 N.J. at 411-12.

Affirmed.

(continued)

(continued)

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A-1105-07T2

October 29, 2008