WILLIAM CUSICK v. JANET CUSICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLIAM CUSICK,

Plaintiff-Respondent/

Cross-Appellant,

v.

JANET CUSICK,

Defendant-Appellant/

Cross-Respondent.

_____________________________________

Argued May 21, 2014 Decided June 5, 2014

Before Judges Grall, Waugh, and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1323-07.

Janet Cusick, appellant/cross-respondent, argued the cause pro se.

Gary E. Fox argued the cause for respondent/cross-appellant (Fox & Melofchik, L.L.C., attorneys; Mr. Fox, on the briefs).

PER CURIAM

Defendant Janet Cusick appeals the Family Part's March 15, 2013 order terminating her right to receive alimony from plaintiff William Cusick and also terminating William's1 obligation to reimburse her for certain insurance and medical expenses related to the parties' children.2 We vacate those portions of the order and remand to the Family Part for reconsideration and a full explanation of the reasons for the judge's ultimate decision.

We discern the following facts and procedural history from the record on appeal. The parties were married in October 1985. They have two children, twins, born in June 1990. The complaint for divorce was filed in March 2007. A retired judge served as arbiter concerning disputed financial issues. He delivered his decision in April 2008, awarding Janet $300 per week in alimony. At that time, William was sixty-three years old and Janet was fifty-four years old. After noting that William would "be working beyond normal retirement age" and that Janet "has more years of work remaining than does" William, the arbiter observed that William's "bona fide retirement . . . will be a substantial change in circumstances that would warrant modification, if not termination of his alimony obligation." On May 13, 2008, the arbitration decision was incorporated into the final judgment of divorce.

In January 2013, William filed a motion to terminate his alimony obligation and for other relief. He certified that he was "forced into retirement" and that he was unable to secure other employment through headhunters and direct applications. According to his certification, his only "guaranteed" net income would be $2,034.30 per month from Social Security. He asserted that his financial holdings included $222,747 in a bank account, $99,410 in a "TD Ameritrade account", and a total of $141,809 in two pension accounts.

Janet opposed the motion and sought an order requiring payment of arrears including expenses related to medical insurance and treatment. She questioned the credibility of William's assertions concerning his finances, pointing in part to the doubts expressed in the arbiter's decision about William's credibility regarding financial disclosure.

The judge denied Janet's request for an evidentiary hearing. Following oral argument on March 15, 2013, the judge granted William's motion to terminate his alimony obligation and emancipate the children. Although she expressed disapproval of William's unilateral decision to set off expenses he claimed for the sale of the marital residence against his obligation to reimburse Janet for the medical-related expenses, she terminated his obligation to reimburse Janet. This appeal followed.

"In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse's ability to pay." Miller v. Miller 160 N.J. 408, 420 (1999). A supporting spouse's income is but one factor that is considered when determining ability to pay; other factors such as "[r]eal property, capital assets, investment portfolio, and capacity to earn by 'diligent attention to . . . business'" should all be considered by a trial judge as well. Id. at 420-21 (second alteration in original) (quoting Innes v. Innes, 117 N.J. 496, 503 (1990)).

In the context of a request to change or terminate alimony, several factors must be considered when determining whether a party may retire, including "age, health of the [retiring] party, his motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement, and the ability of the other spouse to provide for himself or herself," in addition to the reasonableness of the early retirement. Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992) (quoting In re Marriage of Smith, 396 N.E.2d 859, 863 (Ill. App. Ct. 1979)). A determination of this issue "will depend on the individual circumstances of a particular case." Id. at 358. A judge considering a supporting spouse's good faith retirement is "required to decide one pivotal issue: whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse." Ibid. These factors are discussed with reference to the changed circumstances standard set forth in Lepis v. Lepis, 83 N.J. 131, 151 (1980). Deegan, supra, 254 N.J. Super. at 354-55.

In Silvan v. Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993), we determined that a "good faith retirement at age sixty-five may constitute changed circumstances for purposes of modification of alimony." We outlined factors to be considered in determining whether a change in circumstances exists to modify alimony, including:

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.

[Ibid.]

Other factors include the reasonableness of retirement, degree of control of disbursement of retirement assets, and whether assets were transferred by the supporting spouse to reduce the amount of money available to meet his or her support obligations. Ibid.

Our review of the record convinces us that the motion judge did not adequately consider those factors or, at least, did not articulate the conclusions reached from any such consideration in reaching her decision that termination of alimony was warranted under the circumstances of this case. It appears that William was terminated from his last position, but it is unclear that he has actually decided to stop working or that he even intended to retire before the termination. He asserts that he has been looking for other employment, which suggests that he may not really intend to retire. Consequently, the motion judge must determine whether she is faced with a case involving a bona fide retirement or the temporary unemployment of someone who does not want or intend to retire.

In addition, we have concluded that Janet should have been afforded an opportunity to take discovery to test the credibility of William's assertions concerning his intentions to retire or find other employment, his efforts to find other employment, and the extent and nature of his assets. The arbiter's concerns about his truthfulness during the divorce arbitration are by no means dispositive of his veracity regarding the issues now before the court, but they suggest that some care must be taken in allowing Janet to test the credibility of his assertions, at least through the production of documents. Whether more discovery is required is subject to determination by the judge based on the then existing circumstances.

The judge must also give serious consideration to whether a plenary hearing, however brief, must precede the determination of the issues before her. In instances where there are "credibility [issues] and diverse contentions, a plenary hearing is required." Dunne v. Dunne, 209 N.J. Super. 559, 571 (App. Div. 1986); see also Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968) (holding that oral testimony should be taken when there are factual and credibility issues before the court). Of course, a plenary hearing is not required if the issue is "clear-cut and straight forward" on the certifications. Weber v. Weber, 268 N.J. Super. 64, 71 (App. Div. 1993). Our review of the record now before us suggests that the issues in this case are not particularly "clear-cut and straight forward."

Finally, as noted earlier, the judge must provide a clear articulation of her findings of fact and her conclusions of law. We cannot otherwise evaluate the judge's exercise of her considerable discretion in matters such as this.

In summary, we remand to the Family Part for reconsideration of two issues: (1) whether alimony should be reduced or terminated and (2) whether William should be relieved of his obligation to reimburse Janet for the medical and insurance expenses. Because of our remand, the issue raised on the cross-appeal is moot.3 We do not retain jurisdiction.

Remanded.

1 Because the parties share the same last name, we refer to them by their first names for clarity.

2 The order also emancipated the parties' children as of the date of their graduation from college and granted other relief not involved in this appeal.

3 We note that the effective date of a termination or change in alimony is generally left to the discretion of the judge. Reese v. Weis, 430 N.J. Super. 552, 584 (App. Div. 2013). The reasons for the date chosen should, however, be articulated.