T1THOMAS BROWN v. THELMA B. BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T1

THOMAS BROWN,

Plaintiff-Appellant,

v.

THELMA B. BROWN,

Defendant-Respondent.

___________________________________

May 5, 2016

Submitted April 25, 2016 Decided

Before Judges Sabatino and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-144-05.

Law Offices of Paul H. Scull, Jr., attorney for appellant (Mr. Scull, on the briefs).

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial case, plaintiff Thomas S. Brown pursues his third appeal to this court from another Family Part denial of a motion to terminate the permanent alimony obligation that he agreed to as part of the 2006 divorce judgment. Because we agree with the motion judge that defendant still has not yet shown a sufficient material change in circumstances to eliminate or further reduce the alimony, we affirm.

Although this matter has a lengthy history, we summarize the key chronology as follows. The parties married in 1992, when plaintiff was age fifty-three and defendant Thelma B. Brown was forty-six. They had no children together. The parties eventually separated, and in February 2003 entered into a consent order dividing some of their marital assets and in which plaintiff agreed to pay defendant support of $1,000 monthly. A corresponding final judgment for separate maintenance was entered in March 2003.

Thereafter, the parties negotiated a superseding agreement, under which plaintiff agreed to pay defendant a higher sum of $1,750 monthly as permanent alimony. A final amended judgment of divorce incorporating that agreement was entered on March 15, 2006. The calculation of the revised alimony provision within the agreement took into account the fact that both parties were disabled, as plaintiff was receiving both Social Security benefits and veterans' disability benefits and defendant herself was receiving Social Security disability benefits.

Plaintiff thereafter repetitively filed motions in the Family Part seeking relief from his alimony obligation, all of which were denied in successive orders on May 25, 2007, September 21, 2007, and April 11, 2008.1

In 2008, plaintiff belatedly filed an appeal from the 2006 amended divorce judgment and also filed a timely appeal from the April 11, 2008 denial of his modification motion. In an unpublished opinion adjudicating that first appeal, we dismissed the appeal from the amended divorce judgment as untimely. Brown v. Brown, No. A-4152-07 (App. Div. Apr. 24, 2009). We also affirmed the April 11, 2008 order denying modification because plaintiff had not demonstrated under Lepis v. Lepis, 83 N.J. 139, 146-47 (1980), the requisite change in circumstances. Id., slip op. at 2-3.

Plaintiff again moved to terminate or reduce his alimony. He obtained some partial success in an order dated July 10, 2009. Specifically, the trial court reduced the $1,750 monthly payment amount to $1,250 monthly, because defendant was by that point receiving both Social Security disability payments and Medicare health coverage. Hence, the court found that defendant no longer needed plaintiff to subsidize her for the costs of obtaining private health insurance.

Dissatisfied with the extent of the relief provided to him in the court's July 10, 2009 decision, plaintiff appealed from that order. He argued in this second appeal that the reduction should have been more substantial, and that certain income he received should not have been included in the trial court's evaluation.

In May 2010, we issued an opinion in the second appeal affirming the trial court's July 10, 2009 order in part and remanding the matter in part. See Brown v. Brown, No. A-6085-08 (App. Div. May 25, 2010). We rejected plaintiff's contention that his Social Security benefits and veteran's benefits should have been excluded from his income for purposes of reassessing his alimony obligation. Id., slip op. at 7-9. However, we remanded the matter because the judge who had issued the July 10, 2009 order had not fully considered all of the applicable statutory criteria in determining whether the alimony amount should be adjusted. Id. at 9-12.

Following our May 2010 partial remand, the trial court issued another order on July 21, 2010, declining to further reduce plaintiff's alimony obligation. The judge hearing the remand found that the court's earlier reduction of plaintiff's alimony obligation from $1,750 to $1,250 per month was "an appropriate reflection of the changed circumstances of [d]efendant's now increased Social Security [b]enefits and no longer need for completely private health insurance as she now qualifies for Medicare." The judge determined that the $1,250 monthly amount enabled both parties to live at "a comparable standard that was established during the marriage," and that plaintiff's requests for complete termination of alimony and the non-inclusion of certain portions of his income were "not persuasive[,] as they all ha[d] been previously advanced and litigated."

During the course of his analysis, the judge noted in the July 2010 ruling that plaintiff had discrepancies in his case information statement that suggested he had slightly more income than he reported, and that his lifestyle was not as sparse as he had represented. Consequently, the judge concluded that a $1,250 monthly alimony obligation was manageable within plaintiff's monthly budget. With regard to defendant, the judge found that although plaintiff's $1,250 alimony contribution would still leave her short of meeting her monthly budget, the court found she had "not taken advantage of her eligibility for increased Social Security Benefits (not SSD) as she would qualify under [p]laintiff's earning records." Accordingly, the judge ordered that defendant apply for "increased Social Security [b]enefits based on [p]laintiff's earning history within thirty (30) days of th[e] [o]rder." The judge further noted that if defendant did not comply with this provision of the order, plaintiff may "make an appropriate application." There is nothing in the present record supplied to us indicating that defendant ever applied for these benefits within thirty days of the order.

Plaintiff again moved to reduce or terminate his alimony in 2011, claiming once more a substantial change in circumstances. In an order dated June 10, 2011, the trial court denied that application, except that it instructed defendant to apply for all additional benefits from the Social Security Administration to which she might be entitled.2 The court also found that there was no demonstrated substantial change in plaintiff's income and living expenses sufficient to warrant modification or termination of alimony. Additionally, the court deemed moot plaintiff's request that defendant complete a case information statement and all required attachments, because it found that defendant had already provided such a proper filing.

Plaintiff again moved to terminate or reduce his alimony payments in 2012 and 2013 without success. The court issued orders denying those respective applications on October 19, 2012 and January 11, 2013.

The motion practice that gave rise to the present appeal began in November 2014, when plaintiff filed another application to terminate or reduce his alimony. In his supporting certification, plaintiff claimed that substantial changes had occurred since his last such motion in 2011. In particular, plaintiff contended that his costs of living had increased substantially while his pension and disability payments had not kept pace. According to plaintiff, his living expenses exceeded his income and caused him to repeatedly accumulate support arrears. Plaintiff also argued that amendments to the alimony statute that had been recently enacted by the Legislature in 2014, particularly its provisions concerning retirement, justified reconsideration of the ongoing alimony level.

Defendant opposed plaintiff's motion for relief, and cross-moved to compel payment of arrearages of approximately $36,000. Defendant stressed that she has been and remains disabled since the time of the marriage; that her only source of income is from Social Security; that she has ongoing medical issues that generate health care and prescription expenses; and that her other expenses are extensive.

Following oral argument at which plaintiff appeared through counsel and defendant attended pro se but did not argue, Judge James R. Swift denied plaintiff's motion for relief and granted defendant's cross-motion for enforcement. In his written memorandum of decision, Judge Swift found that plaintiff had not shown factually any material change in circumstances since his last motion filings. In addition, the judge ruled that the adoption of the 2014 amendments to the alimony statute did not affect plaintiff's obligations, and that new language in the statute cited by plaintiff did not apply retroactively to him.

Judge Swift noted that the parties had divorced with a mutual recognition that they were both disabled and retired; that defendant accepted the alimony arrangement on a premise that it would be permanent; and that "[a]t this late stage of her life, she simply has no ability to compensate for the requested reduction." Judge Swift further noted that plaintiff had moved for relief with "unclean hands," because since February 2011, he had not paid defendant the full amount of alimony required under the parties' divorce judgment and prior court orders. The judge found that plaintiff had "ample ability" to pay his monthly alimony obligation and a portion of the arrearages, which the judge increased at defendant's behest from $50 to $100 each month.

Plaintiff now appeals, arguing that the motion judge erred in declining to apply the statutory amendments retroactively to him and also in his findings of a lack of proven changed circumstances. Defendant has not filed an opposing brief and may be presumed to rely on the motion judge's analysis.3

When reviewing a trial judge's order, this court must defer to factual findings "supported by adequate, substantial, credible evidence." Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)). Thus, reversal is proper "only when a mistake must have been made because the trial court's factual findings are '"so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ."'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). In addition, we accord special deference to the expertise of the Family Part in its application of legal principles to family disputes. Cesare v. Cesare, 154 N.J. 394, 412 (1998). That said, we review de novo a trial court's determinations on questions of law. Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013).

The legal question of statutory interpretation before us is whether the retirement-related provisions in the 2014 amendments to the alimony statute set forth in subsections (j)(1) and (j)(3) of N.J.S.A. 2A:34-23 bear upon this case. Subsection (j)(1) provides

There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled. The court may set a different alimony termination date for good cause shown based on specific written findings of fact and conclusions of law.

The rebuttable presumption may be overcome if, upon consideration of [a statutory list of] factors and for good cause shown, the court determines that alimony should continue[.]

[N.J.S.A. 2A:34-23(j)(1).]

Although plaintiff relied on this subsection in the trial court and in his initial brief on appeal, our recent published opinion in Landers v. Landers, ___ N.J. Super. ___ (App. Div. 2016) makes clear that subsection (j)(1) does not apply retroactively to alimony awards entered before the September 10, 2014 effective date of the statutory amendments. Instead, the governing retirement-related provision for such pre-existing agreements and orders is subsection (j)(3). Landers, supra, slip op. at 2.

N.J.S.A. 2A:34-23(j)(3) states that

When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor's reaching full retirement age as defined in this section[4]shall be deemed a good faith retirement age. Upon application by the obligor to modify or terminate alimony, both the obligor's application to the court for modification or termination of alimony and the obligee's response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification. In making its determination, the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate

(a) The age and health of the parties at the time of the application;

(b) The obligor's field of employment and the generally accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for retirement at the obligor's place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

(d) The obligor's motives in retiring, including any pressures to retire applied by the obligor s employer or incentive plans offered by the obligor s employer;

(e) The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

(f) The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;

(g) The obligee's level of financial independence and the financial impact of the obligor's retirement upon the obligee; and

(h) Any other relevant factors affecting the parties' respective financial positions.

[(Emphasis added).]

Applying these subsection (j)(3) factors here, we are satisfied that the motion judge did not err in denying a reduction or termination of alimony to plaintiff. As Judge Swift appropriately recognized, the situation here is distinctive in that both parties were already retired at the time of their divorce. In addition, both parties remain disabled and unable to enhance their income through gainful employment. The trial court has previously been attentive to the parties' respective situations by reducing plaintiff's monthly payment by $500 once defendant became eligible for Medicare. Plaintiff failed to demonstrate to the trial court that defendant is eligible for any greater benefits from Social Security than she is already receiving. After comparing the parties' respective fixed incomes and expenses, Judge Swift reasonably concluded that plaintiff had not shown a sufficient change in circumstances, as required by law, and that defendant's support level should not be reduced. On the record presented, we have no basis to set aside that determination.

We also reject plaintiff's separate argument that he is entitled to relief under N.J.S.A. 2A:34-23(c) because the number of years that he has been paying alimony exceed the length of the parties' marriage. For one thing, N.J.S.A. 2A:34-23(c), which establishes a presumption that alimony awards for marriages of less than twenty years generally should not exceed the duration of the marriage, may be overcome by the presence of "exceptional circumstances." The record reflects that such exceptional circumstances exist here, given the parties' mutual status at the time they divorced as disabled and retired individuals on fixed incomes.

Moreover, the Legislature's so-called anti-retroactivity provision associated with the 2014 amendments, see L. 2014, c. 42, 2, instructs that the new statute, unless it specifies otherwise (as in subsection (j)(3)), "shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provision" incorporated into a final judgment of divorce, final post-judgment orders, or enforceable written agreements. See Spangenberg, supra, 442 N.J. Super. at 538-39.

For these many reasons, the trial court did not err in denying what was then plaintiff's most recent motion to terminate or reduce his agreed-upon alimony obligation.

Affirmed.

1 We note that, as the motion judge whose order is currently on appeal lamented in his written decision, plaintiff has unfortunately failed to provide several of the orders and decisions that are an important part of the chronology.

2 The court's order refers to defendant applying for "SSI," but reference to that particular form of Social Security benefits might have been made in error.

3 We take judicial notice that while this appeal was pending, plaintiff filed another motion to terminate or reduce his alimony, which the Family Part denied in an order dated April 23, 2015. That order has not been appealed.

4 N.J.S.A. 2A:34-23 states that retirement age is "the age at which a person is eligible to receive full retirement for full retirement benefits under section 216 of the federal Social Security Act (42 U.S.C. 416)." 42 U.S.C.A. 416 defines retirement age for an individual who reaches early retirement age (i.e., sixty-two) "after December 31, 2004 and before January 1, 2017" as sixty-six years old. 42 U.S.C.A. 416(l)(1)(C). Given that plaintiff was sixty-two in 2006, this is his retirement age as defined by the statute.