Annotate this Case






DOCKET NO. A-1364-11T2







February 20, 2013


Argued October 2, 2012 - Decided


Before Judges Messano and Ostrer.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-799-08-D.


David Salvatore argued the cause for appellant (Wernik & Salvatore, attorneys; Mr. Salvatore, on the briefs).


Charles F. Shaw, III, argued the cause for respondent (Pandolfe, Shaw & Rubino, L.L.C., attorneys; Jeff Thakker, of counsel; Mr. Shaw, on the brief).


In this matrimonial matter, defendant Daniel W. Clare appeals from the trial court's October 6, 2011 order denying his post-judgment motion to terminate alimony to plaintiff, Diann C. Clare, based on an increase in her income. We affirm.


The parties were divorced on April 24, 2009, after almost twenty-seven years of marriage. Their three children were emancipated. However, the parties were guardians of a grandson in plaintiff's custody, and defendant contributed to the child's support.

The property settlement agreement (PSA) incorporated in the final judgment of divorce (FJD) required defendant to pay $385 a week in permanent alimony:

The Husband shall pay alimony to the Wife in the amount of $385.00 per week. . . . The Husband's obligation to pay alimony to the Wife shall be terminated upon the first happening of the following events: the death of the Husband; the death of the Wife; the remarriage of the Wife; the Cohabitation of the Wife with an unrelated third party. This alimony figure was determined by using $122,500 in annual income for the husband and $58,500 in annual income for the wife. The parties agree to exchange income information (tax return, W-2 + 1099) on an annual basis by April 30th each year.


Defendant filed a motion in July 2011, seeking various forms of post-judgment relief, including termination of alimony, and plaintiff filed a cross-motion seeking denial of the alimony-related motion and other relief. The parties resolved all the issues raised in the cross-motions except defendant's request to terminate alimony.

We discern the following facts relevant to the alimony motion. Defendant is an express service technician for Jersey Central Power & Light Company (JCP&L). He has also earned business income from his own electrical business. His income has fluctuated from year to year, in part based on the availability of overtime. Although the PSA used a $122,500 figure, his annual income between 2000 and 2009 ranged as much as roughly $30,000 above and below that figure. Based on his year-to-date earnings statement from JCP&L in 2011, he was earning over $139,000 annually from JCP&L (without accounting for any business income).

The parties agreed to impute income of $58,500 to plaintiff in the PSA. Her 2010 income was $74,288. Based on her year-to-date earnings through August 20, 2011, plaintiff was earning over $82,000 a year.

Defendant sought to terminate alimony. He argued he had made a prima facie case that at least warranted discovery. He asserted plaintiff's income had exceeded the imputed income in the PSA by more than the total amount of alimony. Her income growth was over $24,000 annually, and $385 weekly alimony totaled $20,200 a year. He argued that her change in circumstances was significant, and that his alimony was no longer necessary to enable her to maintain the marital standard of living.

In opposing defendant's motion, plaintiff asserted that defendant's income in the PSA represented a rough average of defendant's fluctuating income. She argued growth in defendant's income had matched the growth in hers. She also argued that the income changes had not persisted long enough, and the gap had not narrowed sufficiently, to warrant termination. She also stated that she was the primary residential custodian of the parties' grandchild, which limited her ability to work overtime. However, defendant countered that she was able to work overtime on weekends when the child's father had parenting time.

The trial judge denied the motion to terminate alimony. He did not deem the change in incomes to be permanent or significant enough to warrant terminating alimony. He stated, "[I]t has been slightly more than two years since the parties were divorced." Noting their long-term marriage, the judge found defendant had presented an insufficient basis to terminate alimony. Although both parties' incomes rose from the levels stated in the PSA, he did not find the income change to be significant. Defendant's ability to pay alimony was not negatively affected.

Defendant appeals and urges us to conclude the trial court abused its discretion in failing to find that he made a prima facie showing of changed circumstances entitling him to a termination of alimony or, alternatively, financial discovery and a plenary hearing. We disagree.



We begin with a review of governing principles. We are required to accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). Also, "if the court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).

When the evidence discloses genuine material issues of fact, a family court's failure to conduct a plenary hearing to resolve those issues is a basis to reverse and remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968), superseded on other grounds, N.J.S.A. 2A:17-56.23a, as recognized in Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).

We apply these standards of review to whether defendant presented a prima facie showing of changed circumstances warranting terminating a modification of alimony, or at least discovery and, if genuine issues of material fact remained, a plenary hearing. See Lepis v. Lepis, 83 N.J. 139, 157-59 (1980) (discussing necessity of prima facie case to warrant discovery, and genuine issues of material fact to warrant plenary hearing). Alimony orders are always subject to review and modification upon a showing of changed circumstances. Id. at 146. The party seeking modification of support obligations has the burden of showing "changed circumstances" warranting relief. Id. at 157.

The court must determine whether there has been a "substantial impairment of the [obligee's] ability to maintain the standard of living to which they are entitled." Id. at 160. "When support of an economically dependent spouse is at issue, the general considerations are the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 152; see also id. at 150 ("The supporting spouse's obligation is mainly determined by the quality of economic life during the marriage. . . . The needs of the dependent spouse and children contemplate their continued maintenance at the standard of living they had become accustomed to prior to the separation.") (citation and quotation omitted).

The Court recognized that a supported spouse's employment could constitute a change in circumstances, which would warrant a decrease in alimony. Id. at 151. A trial court must closely examine "the supported spouse's ability to contribute to his or her own maintenance, both at the time of the original judgment and on applications for modification." Id. at 155. "[A] payor spouse is as much entitled to a reconsideration of alimony where there has been a significant change for the better in the circumstances of the dependent spouse as where there has been a significant change for the worse in the payor's own circumstances." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). However, a supporting spouse's increase in income could constitute a change. Lepis, supra, 83 N.J. at 151. That change might warrant an upward modification of alimony.

There is no mathematical formula for determining what circumstance is significant. See Walles v. Walles, 295 N.J. Super. 498, 510, 518-19 (App. Div. 1996) (affirming modification where payor's gross income dropped over $300,000, from a prior level of $656,000); Beck v. Beck, 239 N.J. Super. 183, 189-90 (App. Div. 1990) (finding changed circumstances where supporting spouse's income had "declined dramatically over the last several years" and showed a drop in gross income from $155,000 to $118,000 in one year, available income was reduced by children's college costs, and supported spouse's income had risen).

Moreover, a temporary change in a former spouse's income does not warrant modification. See Innes v. Innes, 117 N.J. 496, 504 (1990) ("Temporary circumstances are an insufficient basis for modification."); Lepis, supra, 83 N.J. at 151. There is "no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation." Larbig v. Larbig, 384 N.J. Super. 17, 19 (App. Div. 2006) (rejecting modification request filed twenty months after entry of judgment, finding that the period of time "strongly suggested defendant's reduced income had not become permanent").

The trial court exercises broad discretion in this area. "The Legislature has left applications to modify alimony to the broad discretion of trial judges." Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); see also Larbig, supra, 384 N.J. Super. at 21 ("appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters") (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). Consequently, an appellate court may vacate a trial court's findings regarding a motion to modify alimony if it concludes:

the trial court clearly abused its discretion, failed to consider "all of the controlling legal principles," or it must otherwise be "well satisfied that the finding[s] [were] mistaken," or that the determination could not "reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole."


[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (alteration in original) (citations omitted).]

Applying that deferential standard of review, we do not discern error in the court's exercise of discretion to deny termination of alimony. We affirm primarily on the court's recognition that the motion was filed twenty-seven months after entry of the FJD. While both parties' income had risen substantially in 2011, and plaintiff's increase eclipsed the amount of alimony, the court acted within its discretion in determining the motion was premature. The record demonstrated that defendant's income fluctuated substantially. Plaintiff's income increase was of recent vintage.


ur determination does not preclude defendant from renewing his request for termination or modification upon a showing that plaintiff's improved financial circumstances have become permanent. At that time, if the court finds a prima facie showing of changed circumstances, both parties would be able to engage in appropriate discovery, and address whether, as plaintiff alleges, her child care responsibilities limit her ability to replicate the marital lifestyle. The court may also need to consider whether the award of alimony in the PSA left plaintiff, defendant, or both parties unable to achieve the marital lifestyle. See Crews v. Crews, 164 N.J.11, 26 (2000) (noting possibility that "the one spouse s income, or both spouses' incomes in combination, do not permit the divorcing couple to live in separate households in a lifestyle reasonably comparable to the one they enjoyed while living together during the marriage."). Since "'changed circumstances' are not limited in scope to events that were unforeseeable at the time of divorce," Lepis, supra, 83 N.J.at 152, the court may, at that time, deem it necessary to consider plaintiff's argument that the parties anticipated plaintiff's income would increase once she completed the apprenticeship program she was attending when they executed the PSA.