ESTHER KASSIN v. JACK KASSIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1599-07T21599-07T2

ESTHER KASSIN,

Plaintiff-Respondent,

v.

JACK KASSIN,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 8, 2008 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, Docket No. FM-13-456-98.

Howard I. Masia, attorney for appellant.

Abrams & Knopf, attorneys for respondent

(Judith M. Knopf, on the brief).

PER CURIAM

Defendant Jack Kassin appeals from an October 26, 2007 order of the Family Part denying his motion to terminate alimony, child support, as well as relieving him of his obligation to maintain life insurance for the benefit of his children. Additionally, defendant sought a credit for social security benefits received by plaintiff for the benefit of the parties' unemancipated child. The motion judge declined to grant a plenary hearing concluding that defendant failed to establish a prima facie case for relief.

Although at the time of the motion, plaintiff was not receiving social security benefits, she has informed us on this appeal that she is now receiving the benefits on behalf of the parties' unemancipated child. We conclude that the motion judge correctly denied defendant both the relief requested, and no hearing was required; however, pursuant to the Child Support Guidelines, defendant is entitled to a credit for the unemancipated child's social security benefits. Accordingly, we affirm the denial of the modification of support but remand for calculation of the credit for the child's social security benefits.

The relevant facts are simply stated. Following a twenty-five year marriage, defendant and plaintiff Esther Kassin were divorced pursuant to a judgment of divorce entered on August 18, 1998. Six children were born of the marriage. And at the time of the motion, one child, then aged fifteen and a junior in high school residing with plaintiff remained unemancipated. The relevant portions of the judgment provided:

2. The husband shall pay the sum of Four Hundred ($400.00) Dollars per week, through the Monmouth County Probation Department, which sum shall initially be allocated as Three Hundred ($300.00) Dollars for child support; and One Hundred ($100.00) Dollars for alimony. As each child is emancipated the plaintiff wife will get that child's share as alimony, with the intent that when all of the children are emancipated, the plaintiff wife will receive the sum of Four Hundred ($400.00) Dollars per week for alimony. These payments of alimony will continue until such time as the plaintiff wife remarries or dies.

. . .

5. The defendant Husband shall forthwith obtain life insurance in the minimum amount of One Hundred Thousand ($100,000.00) Dollars, naming the children as irrevocable beneficiaries, and the plaintiff wife as Trustee of said policy.

At the time of the motion and as a result of the emancipation of the five other children, defendant's alimony obligation was $300 and his child support obligation was $100.

Underlying defendant's claim for relief was his assertion that in March 2007, at age 65, he was terminated from his employment in his nephew's furniture business. He claimed to be suffering from heart-related medical issues and maintained that he was unable to perform his regular work functions prompting his termination. He proffered that his only income was social security providing him with a net monthly income of $1,615 or approximately $20,000 per year. He asserted that he unsuccessfully had sought other employment and that his income had been supplemented by charitable assistance from various private agencies.

Plaintiff disputed defendant's claims. In her responsive certification, she asserted that "[t]he defendant just decided that he did not want to work anymore once he reached 65 years of age. In fact, he told me on several occasions, 'Why should I be working to support you[?] I'll collect unemployment and my Social Security benefit, and I will not have to pay you a dime.'"

More germane to the financial matters at issue, plaintiff provided the motion judge with a copy of defendant's 1998 case information statement. The statement established that at the time of the entry of the judgment of divorce and defendant's agreement to pay $400 in alimony and child support, he was earning approximately $23,079 per year. At the time of this application for modification, defendant's income was $20,079 or $19,380 per year after his Medicare deduction.

Equally relevant, defendant asserts that his retirement was necessitated by health limitations on his ability to work as well as an inability to secure employment because of his age. While he did provide various medical reports, nothing in the record provided a nexus between his medical condition and an inability to be gainfully employed. In sum, his application was premised on a variety of disparate theories: a) a good faith retirement at age 65; b) a health-related inability to work; and c) an inability to secure employment because of his age.

The motion judge observed:

Simply put, Mr. Kassin has not met his burden. He was terminated from his position in March of 2007. There is no documentation at all of any subsequent job search undertaken by himself. And without that bit of documented history, there is no reason for this Court to believe it to be impossible for Mr. Jack Kassin to continue earning income.

Nor would I find that Mr. Kassin's health constitute[s] a continuing hindrance on his employability. He asserts in his certification that he has a heart condition, and does provide documentation of a hospital bill, along with something that is called an implantable defilibrator, I'm sorry, defibulator patient identification card.

However, he does not provide any documentation from any physician that addressed the issue of whether the newly implanted defibulator hinders his ability to work. It is the assertion of Mr. Kassin that his inability to work is the change of circumstance that substantially impairs him from supporting himself, while at the same time meeting his child support and alimony obligation.

On the record before me, I would find that his unemployment is temporary. And it does not qualify as a change of circumstance that would necessitate a modification or a termination of support, whether it be alimony or child support.

The judge then concluded:

Mr. Kassin has not demonstrated a disability or health problem that impairs him from working. He not only has an obligation to pay alimony until death or remarriage, but his child support obligation has not been ceased. Not only is [the child] under the age of maturity, there's an indication that [the child] is planning to attend college, and will be entitled to support from his father.

Although it may be desirable to retire at age 65, it is not a claim of right, especially to someone who is a generally healthy person, with outstanding financial obligations. The burden of continuing to work in his later years is far outweighed by the advantage his support will bring by satisfying his debt to his youngest son and his former spouse.

I'm also satisfied, given the circumstances, and this particularly deals with the child, who is just about to reach his 17th birthday. The obligation to maintain the life insurance coverage remains a necessity. The defendant's motion, in its entirety, is denied.

This appeal followed.

Alimony and child support orders are subject to modification upon a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 152 (1980). However, the party seeking such modification bears the burden of demonstrating such changed circumstances, id. at 157, and significantly, a decrease in income resulting from retirement does not necessarily justify a modification of support. Lissner v. Marburger, 394 N.J. Super.

393, 399 (Ch. Div. 2007).

We have previously addressed the issue of voluntary retirement as constituting a change in circumstances warranting relief from support obligations. See, Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div. 1993)(concluding that a good faith retirement at age 65 may warrant a finding of changed circumstances); Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992 (establishing the standards to be applied when a party asserts an early retirement as changed circumstances warranting termination of spousal support); see also, Lissner, supra, 394 N.J. Super. at 403-04 (distinguishing between termination of alimony and child support where the basis of changed circumstances was a voluntary early retirement).

In Silvan, we set forth a series of factors to be considered when a party retires at age 65 and subsists on social security benefits, relying on these facts to assert "changed circumstances" warranting relief. We said, in part:

There are a variety of factors which should be considered in analyzing whether such changed circumstances do, in fact, exist as would justify a modification of alimony. A court may consider, for instance, the age gap between the parties; whether at the time of the initial alimony award any attention was given by the parties to the possibility of future retirement; whether the particular retirement was mandatory or voluntary; whether the particular retirement occurred earlier than might have been anticipated at the time alimony was awarded; and the financial impact of that retirement upon the respective financial positions of the parties. It should also assess the motivation which led to the decision to retire, i.e., was it reasonable under all the circumstances or motivated primarily by a desire to reduce the alimony of a former spouse. . . .

[Silvan, supra, 267 N.J. Super. 578 at 581.]

We then observed that these factors were "meant to be illustrative, not exhaustive." Ibid. Ultimately, the relevant considerations will depend on the circumstances presented in each particular case. Deegan, supra, 254 N.J. Super. at 358.

Silvan and Deegan address the issue of spousal support. Here defendant initially seeks relief from his child support obligation and then his spousal support obligation. We recognize that here the provisions of the judgment of divorce convert the child support to alimony when the child is emancipated, but we perceive that the issues must be addressed as a reduction in child support. Defendant was obligated to pay $100 for child support for the one remaining unemancipated child. At the same time, plaintiff concedes both that she is receiving social security benefits for the unemancipated child and that the Child Support Guidelines require an offset in defendant's child support obligation. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B(12) to R. 5:6A at 2353 (2009). ("If a child is receiving government benefits based on either parent's earning record, disability, retirement, the amount of those benefits must be deducted from the total support award . . . . Such benefits include . . . Social Security Retirement . . . .")

Plaintiff urges that since under the terms of the judgment, the child support is converted to alimony, the full alimony of $400 is now warranted. We reject that assertion. The judgment provides that "[a]s each child is emancipated, the plaintiff wife will get that child's share as alimony . . . ." The judgment provides the operative circumstances for such conversion, and plaintiff should not receive a windfall of the social security benefit as well as the child support. We recognize that the social security benefits may terminate upon the child achieving majority and even at majority, he may not be emancipated. We decline to address the issue of the defendant's potential obligation for reinstated child support and leave that for the parties to resolve in the event the benefits terminate at some future time.

The motion judge concluded that defendant had failed to establish a prima facie case warranting further proceedings including a hearing. We agree. We consider that while defendant suggests that his medical condition limits his employment opportunities, his medical submissions fail to support that conclusion. His claimed pursuits to secure other employment are marked by a dearth of documentation to support either employment opportunities or specificity of the nature of the attempted employment sought. Most critically, his reduction in income is hardly of the scope and magnitude that would warrant further inquiry.

Finally, we note that although age sixty-five is the foreseeable retirement age, "[i]t is reasonable to conclude that a person who decides to become a parent late in life voluntarily takes on the responsibility of working and saving for that child beyond the age that would otherwise be expected." Lissner, supra, 394 N.J. Super. at 403. In sum, we conclude that the motion judge did not err in finding that defendant failed to establish a prima facie showing sufficient to warrant a hearing on the support obligations imposed by the judgment of divorce.

 
We remand for calculation of the credits required under the child support guidelines and in all other respects, we affirm. We do not retain jurisdiction.

The motion judge entered two separate orders denying defendant's motion and the included demands for relief. For ease of reference, we refer to the orders in the singular.

(continued)

(continued)

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A-1599-07T2

September 23, 2008