FRANCINE TAMA v. ALBERT R. TAMA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3245-09T2

FRANCINE TAMA,

Plaintiff-Appellant,

v.

ALBERT R. TAMA,

Defendant-Respondent.

_____________________________________________________

November 4, 2010

Argued October 19, 2010 - Decided

Before Judges Skillman, Parrillo and Yannotti.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County, Docket No. FM-04-6101-72.

Ronald A. Graziano argued the cause for appellant (Graziano & Flynn, attorneys; Mr. Graziano, Robyn B. Flynn, and Richard T. Silverman, of counsel and on the briefs).

Richard F. Roy, Jr., argued the cause for respondent (Comegno Law Group, attorneys; Mr. Roy, of counsel and on the brief).

PER CURIAM

The parties were divorced in 1976. Under the property settlement incorporated in their judgment of divorce, defendant was obligated to pay plaintiff $300 per week in alimony. In 1990, the trial court increased defendant's alimony obligation to $3090 per month based on the increase in her cost of living since the divorce. In 1999, plaintiff filed another motion for an increase in alimony based on an increase in her cost of living, which the trial court denied.

In 2009, plaintiff again moved for an increase in alimony and defendant's other support obligations based primarily on an increase in her cost of living. In support of her motion, plaintiff presented evidence that the Consumer Price Index had increased 45% from 1994 to 2009. She also submitted a certification that indicated her own living expenses had increased substantially, including an increase in her real estate taxes during the period 1999 to 2010 from $7,260.32 to $12,817.82 and a $3500 per year increase in her utility bills during that same period. Plaintiff also alleged that her medical expenses had substantially increased in recent years due to her deteriorating health. In addition, plaintiff alleged that, as of the last time defendant provided discovery of his financial circumstances in 2001, he had very substantial income and assets.

Defendant filed an answering certification that alleged he is now suffering from serious health problems and only works part time. However, defendant did not disclose any information concerning his current income or assets.

The trial court delivered a brief oral opinion denying plaintiff's motion. The court concluded that plaintiff had not made a prima facie showing of changed circumstances that would warrant requiring defendant to provide discovery regarding his current financial situation. In reaching this conclusion, the court stated:

A comparison of the plaintiff's 1 990 CIS with her 2009 CIS confirms that the increase in gas prices, home heating products, and energy and water bills are merely the result of standard inflation rates. Thus, plaintiff's assertion of changed circumstances due to these increased household bills do not constitute a substantial change circumstance to warrant an alimony modification.

Plaintiff filed a motion for reconsideration, which the trial court also denied in a brief oral opinion. In that opinion, the court observed:

A comparison of plaintiff's 1 990 CIS with her 2009 CIS confirms that the increase in gas prices, home heating products, and energy and water bills are merely a result of standard inflation rates.

A supported spouse is entitled to seek an increase in alimony based on a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 151 (1980). An increase in the cost of living is one such changed circumstance. Ibid. An increase in the cost of living will be found to constitute a changed circumstance only if it has "substantially impaired the [supported spouse's] ability to support himself or herself." Id. at 157. This requires a supported spouse to make a "particularized showing" of the impact of the increase in the cost of living upon his or her ability to maintain a standard of living comparable to the marital standard. Crews v. Crews, 164 N.J. 11, 32 (2000). If the supported spouse makes a prima facie showing of such changed circumstances, the court will order discovery of the parties' financial circumstances. Lepis, supra, 83 N.J. at 157.

The trial court apparently construed Gulick v. Gulick, 113 N.J. Super. 366 (Ch. Div. 1971), to hold that "standard inflation rates" can never constitute a changed circumstance warranting an increase in alimony, regardless of the extent of the inflation or its impact upon the party seeking an increase in his or her alimony. If this was the holding of Gulick, that trial court opinion is no longer good law in light of Lepis and its progeny.

We are satisfied that plaintiff made a prima facie showing of a substantial increase in her living expenses as a result of inflation that warrants discovery of the parties' financial circumstances. She not only presented evidence that the Consumer Price Index has increased 45% since 1994 but also that her own personal living expenses have increased dramatically since her alimony was last increased in 1990. These increases include a near doubling of her real estate taxes since 1999 and a $3500 per year increase in her utility expenses during that same period. This constituted a prima facie showing of changed circumstances that entitles plaintiff to obtain financial discovery from defendant and a determination by the trial court, based on all relevant circumstances, of whether an increase in alimony and defendant's other support obligations is warranted.

Accordingly, the order denying plaintiff's motion for an increase in defendant's alimony support obligations, including the obligation for the payment of life insurance premiums, is reversed, and the case is remanded to the trial court for further proceedings in conformity with this opinion.