MARY ANN KATCHISIN v. THOMAS KATCHISIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARY ANN KATCHISIN,

Plaintiff-Respondent,

v.

THOMAS KATCHISIN,

Defendant-Appellant.

_____________________________

August 29, 2014

Submitted April 29, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2270-02G.

Brandon L. Martin, attorney for appellant.

Robbins & Robbins, LLP, attorneys for respondent (Claudia C. Lucas, of counsel and on the brief).

PER CURIUM

Defendant Thomas Katchisin appeals from the denial of his post-judgment motion to terminate or modify alimony. On appeal, defendant argues he has made a prima facie showing of a substantial change in circumstances, based on plaintiff's increased income and his changed disability status. Therefore, he was entitled to a hearing on the determination of his alimony.1 We are satisfied, however, from our review of the record and applicable law that there is no reason to disturb the motion judge's decision, and we now affirm.

We discern the following from the record. After twenty-eight years of marriage, the parties divorced on December 9, 2002. The Judgment of Divorce (JOD) incorporated their Property Settlement Agreement, whereby defendant agreed to pay $11,500 per year, or $221 per week, in permanent alimony. Paragraph six of the JOD provides that alimony "shall terminate upon the death of either the plaintiff or the defendant, [or] remarriage of the plaintiff, and may be reconsidered if the plaintiff cohabits with anyone per New Jersey case law at the time of such cohabitation."

At the time, defendant's income was $69,184, and plaintiff's income was $16,963. Defendant was also thirty percent disabled, and as a result, was receiving non-taxable partial disability benefits from the Department of Veterans Affairs (VA benefits) in the amount of $1034 per month or $12,408 per year. In 2009, the parties consented to a qualified domestic relations order (QDRO) that allowed for the equitable distribution of defendant's pension from his former employer, Anheuser Busch (pension benefits). Defendant worked for the company 11.75 years during his marriage, and for 14.60 years in total. The parties divorced before his pension vested. Therefore, 2.85 years, or 19.5 percent, of the pension was not included in equitable distribution.

On May 29, 2013, defendant filed a motion to terminate or reduce alimony in light of the parties' changed circumstances. Defendant had since become 100 percent disabled, and had retired from Anheuser Busch. He was receiving $37,068 in VA benefits, $26,736 in social security disability benefits, and $18,187 in pension benefits, for a total amount of $81,991.56. After subtracting the amount of pension subject to equitable distribution under the QDRO, defendant's income amounted to $67,350. Based on her 2012 case information statement, plaintiff's income had increased to $56,746, though defendant alleged it had increased to $63,825 based on a pay stub.

In his motion, defendant argued that his current income was less than his income at the time of the divorce, taking into account that a portion of his pension was subject to equitable distribution under the QDRO. He also claimed that plaintiff's earnings had risen since the time of the divorce. Finally, he noted, "There is little to no difference in our incomes now." Plaintiff opposed the motion, arguing that none of the events set forth in paragraph six of the JOD had occurred, and that defendant had not shown "a substantial change in circumstances," as would justify the termination or reduction of alimony. She also requested legal fees.

At oral argument, defendant contended that his changed disability status, retirement and decreased earnings constituted substantial changes in his circumstances, sufficient to merit the termination or reduction of alimony. Plaintiff argued that there had actually been an increase in defendant's income, and noted further that his income was now untaxed, and that the court could take into account defendant's assets and lifestyle. Plaintiff also argued that the change in amount would be "de minimus" if alimony were recalculated, and urged the court to enforce the terms already in place.

The court denied defendant's application. It noted that defendant had not presented evidence of his disability, other than the disability benefits he currently receives, and further found:

[Defendant's] current income based upon these changes, is as follows: a yearly V.A. benefit payment of $37,680, S.S.[D]. 26,736, both of which are nontaxable. And maintains that the includable portion of the Anheuser Busch pension that he's receiving is $3,550. That is a total payment yearly of 18,187. And again, based upon the non-marital portion being included as part of his income for consideration of in this application.

For a total annual currently of $67,966. By review of his current C.I.S., A.B.C.'s total, those schedules total $5,683. By reference to the marital standard of living, he is living in excess to the marital lifestyle when compared to the plaintiff who is currently grossing, according to her 2011 tax return, $56,747. And her year to date approximately annualized out, based upon her current pay-stubs. The last pay period ending 6-15-2012, $62,000 before taxes.

Her after tax figure is determined to be approximately a net of $3,668 per month for annualized net, $44,000. When reviewing the marital lifestyle as indicated, it would appear that the plaintiff is significantly lower in terms of her monthly C.I.S. totals. She is currently reflecting $3,829 per month versus a prior lifestyle C.I.S. standard of living at $5,191 which represents a differential for her of $1,362.

When divided by 4.3 weeks, yields a deficit of $316 per week of which she is receiving alimony in the amount of $221. There has been no argument with respect to an inability to pay on the part of the defendant.

The court determined that defendant was "living in excess [of] the marital lifestyle when compared to the plaintiff," and that "plaintiff [was] subsisting on a lower standard of living." It noted that "[t]here has been no argument with respect to an inability to pay on the part of the defendant." Furthermore, plaintiff's income was taxable while defendant's was not. As a result, the court denied defendant's motion and ordered that the parties be responsible for their own attorneys' fees.

In our review of the court's order, we accord deference to the family court's determination, in light of its "'special jurisdiction and expertise'" in these matters. In re State ex rel. A.D., 212 N.J. 200, 230 (2012) (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). "Each motion to modify an alimony obligation 'rests upon its own particular footing and [we] must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Reese v. Weis, 430 N.J. Super. 552, 571-72 (App. Div. 2013) (quoting Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)). "Accordingly, our review of the trial judge's discretionary termination of alimony is limited to whether the court made findings inconsistent with the evidence or unsupported by the record, or erred as a matter of law." Id. at 572 (citing Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005)). In this instance, we are satisfied that the court's findings were well supported by the record and that there was no misapplication of the law, as the court properly based its decision on the parties' standard of living.

The purpose of alimony is to maintain the parties' pre-separation standard of living. Steneken v. Steneken, 183 N.J. 290, 298-99 (2005) (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980); Crews v. Crews, 164 N.J. 11, 16 (2000)). The court may award alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. The award is "always subject to review or modification by our courts based upon a showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 419 (1999). "The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations," such as an increase or decrease in the supporting spouse's income or earning capacity; "the dependent spouse's needs, [and his or her] ability to contribute to the fulfillment of those needs[;] and the supporting spouse's ability to maintain the dependent spouse at the former standard." Innes v. Innes, 117 N.J. 496, 504 (1990). "[A] significant change for the better in the circumstances of the dependent spouse . . . may obviate the need for continued support." Glass v. Glass, 366 N.J. Super. 357, 371 (App. Div.), certif. denied, 180 N.J. 354 (2004).

We find that the court did not abuse its discretion. The court correctly addressed the modification issue by considering plaintiff's standard of living at the time of the divorce, and comparing it to her standard of living today. It adopted defendant's statement of his income, factoring in only the undistributed portion of his pension in its calculations. It also appropriately compared defendant's (entirely) nontaxable income to plaintiff's after-tax earnings. The court ultimately determined that while defendant was currently living above the marital lifestyle, plaintiff could not achieve the prior marital lifestyle without the benefit of alimony. The court's determination was consistent with, and well-supported by, the record. See Reese, supra, 430 N.J. Super. at 572.

Affirmed.

1 Defendant argues in his point headings that consideration of his motion required a plenary hearing. However, defendant has not indicated what issues of fact needed to be resolved by a hearing. He simply argues that we should adopt his arguments over plaintiff's. We decline to do so.