EMILY B. STANSBURY v. JOHN M. STANSBURY

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5337-16T1

EMILY B. STANSBURY,

           Plaintiff-Respondent,

v.

JOHN M. STANSBURY,

     Defendant-Appellant.
____________________________

                    Argued October 15, 2018 – Decided November 29, 2018

                    Before Judges Haas, Sumners and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Gloucester County,
                    Docket No. FM-08-0736-98.

                    AllynMarie Smedley argued the cause for the appellant
                    (Smedley & Lis, attorneys; AllynMarie Smedley, on the
                    briefs).

                    Emily B. Stansbury, respondent, argued the cause pro
                    se.

PER CURIAM
      Defendant John Stansbury appeals from a Family Part order modifying his

permanent alimony obligation based upon his desire to retire. The trial judge issued

a decision (1) modifying defendant's permanent alimony obligation from $250

weekly to $150 weekly, and (2) reducing defendant's obligation to carry life

insurance from $142,125 to $25,000. We reverse in part and remand for a plenary

hearing.

      Plaintiff and defendant were married on June 25, 1972, and divorced on June

19, 1999, after a twenty-eight-year marriage. The marital settlement agreement

("MSA") provided that defendant would pay plaintiff permanent alimony of $250

per week. At the time of the agreement, defendant made $52,000 per year. Plaintiff

also received a portion of defendant's pension and a portion of defendant's savings

and investment plan. The MSA also obligated defendant to carry life insurance to

secure his obligations.

      On March 31, 2017, defendant filed to terminate his alimony and life

insurance obligations to plaintiff because he wanted to retire. Defendant certified

that he was seventy-two years old, has diabetes, and had undergone heart bypass

surgery when he was in his fifties. Defendant was a professional pipe-fitter by trade,

and he certified that he can no longer perform this strenuous work.




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        Defendant further certified that he has both a pension and Savings and

Investment plan from DuPont Merck, where he worked from 1973 to approximately

2003.    This pension was equitably distributed as part of the parties' divorce.

Defendant states that his DuPont pension, which pays him $9,156 a month, "ha[d]

been distributed under equitable distribution, [and] it is [his] understanding that this

is not income for purposes of alimony calculations." Defendant's present job at

Brown and Root does not offer a pension.

        On June 1, 2017, plaintiff filed a cross-motion opposing the termination of

permanent alimony. Plaintiff certified that she lives on a monthly budget of $3,246

and depends on defendant's alimony to meet that budget. Plaintiff is a home health

aide who works approximately twenty hours per week. Plaintiff previously worked

as a certified nursing assistant (CNA), but alleges she is no longer able to do so after

suffering shoulder injuries in 2012. Plaintiff certified that her monthly earnings

come from social security benefits, a pension she acquired after the divorce, and

monthly income, totaling $2,281 after deductions for Medicare and taxes.

        Plaintiff asserts that defendant's obligation should not be terminated because

he will net $51,6281 annually after retirement – $26,465 in social security benefits,



1
    The total of these amounts is actually $51,528.


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$9,055 in pension benefits, and $16,008 in military benefits – which is almost the

same income as the $52,000 he made before retirement. Plaintiff also alleges that

defendant is concealing assets, particularly from a home that he and his former wife

owned. She claims that defendant has had a desk job since 2002, which she claims

undermines the credibility of defendant's argument that he cannot work.

      On June 30, 2017, the parties appeared for oral argument. That same day, the

Family Part judge issued a decision granting defendant's motion in part, reducing his

alimony obligation to $150 per week, retroactive to March 31, 2017, and reducing

his life insurance obligation to $25,000.

      In so ruling, the trial judge considered the factors enumerated in  N.J.S.A.

2A:34-23(j)(3).      N.J.S.A. 2A:34-23(j)(3) is triggered upon the actual or

contemplated retirement of the supporting spouse when the parties have an existing

agreement. Specifically, Section (j)(3) provides that where there is an existing final

order or enforceable written agreement establishing an alimony obligation prior to

the effective date of an amendment to the statute in September 10, 2014, “the

obligor’s reaching full retirement age as defined in this section shall be deemed a

good faith retirement age.” “Full retirement age” means the age at which a person

is eligible to receive full retirement benefits under section 216 of the federal Social

Security Act, 42 U.S.C § 416.  N.J.S.A. 2A:34-23(n).


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      Once the court determines that the obligor has reached full retirement age, the

court may equitably weigh a series of additional factors specified in the statute to

determine whether alimony should be terminated, modified, or left intact. In making

its determination, the court may consider various points, including but not limited to

the ability of the obligee to have saved adequately for retirement. This court has

previously found that the amended  N.J.S.A. 2A:34-23(j)(3) "elevates the ability of

the obligee to have saved adequately for retirement . . . setting it apart from other

considerations and requiring its explicit analysis." Landers v. Landers,  444 N.J.

Super. 315, 324 (App. Div. 2016).

      The trial judge acknowledged that she was required to give a specific analysis

to this point and noted that she had "heavily considered the [p]laintiff's inability to

have adequately saved for retirement." The judge concluded that it was "unlikely"

that plaintiff had the ability to adequately save for retirement.

             The [p]laintiff certifies that she receives a gross of
             $1,178.90 monthly in Social Security ($1,074 net),
             $575 per month from her pension (acquired after the
             marriage), for a total gross income of $2849.00.
             Plaintiff also receives $13,426 gross annually ($11,922
             net) from her part-time job as a certified home health
             aide. Plaintiff's total net income is approximately
             $2581 per month, excluding spousal support. Plaintiff
             does not report any income from her marital share of
             defendant's pension. As such, the pension may have
             been liquidated and spent down to meet expenses or
             perhaps reinvested, [p]laintiff offers no explanation.

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            The Court infers that the marital pension may have
            replaced her lost income for 2014 while in treatment for
            cancer.
            … It is unlikely [p]laintiff had the ability to save for
            retirement, as she currently has no savings, and was out
            of work for a year due to cancer treatments.

      The court also considered the additional statutorily mandated factors to

determine whether defendant had demonstrated by a preponderance of the evidence

that modification or termination of alimony was 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.


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             [N.J.S.A. 2A:34-23(j)(3).]

      As to factor (a), the judge found that both parties have significant health issues

and that defendant was seventy-two and plaintiff was seventy-one at the time of the

hearing. She found that this weighed in favor of granting defendant's application.

As to factors (b) and (c), the judge found that seventy-two was a generally accepted

retirement age even though there was no mandatory retirement age for defendants'

job because defendant was "beyond any date where continued employment would

increase his retirement benefits." This factor, the judge found, also weighed in favor

of defendant's application. Concerning factor (d), the judge found that defendant's

motive for retiring was reasonable and weighed in favor of his application because

he was not physically capable of fulfilling strenuous requirements of his pipefitting

job, and he did not receive a pension from his current company.

      The judge also considered defendant's ability to maintain support payments

pursuant to factor (g). She slightly reduced defendant's submitted budget because

she felt that some of his expenses were too high. In contrast, she did not alter

plaintiff's "bare bones" budget.     She found that the "financial impact of the

termination of alimony upon [plaintiff] would be severe[,]" a factor that weighed

against granting defendant's application.




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        The trial judge also granted in part defendant's motion to terminate life

insurance, and reduced the amount defendant was obligated to carry from $142,125

to $25,000. The trial court also denied both parties' motions for counsel fees. The

trial judge ordered (1) both parties to exchange lifetime social security earnings

statements within thirty days; (2) defendant to sign an authorization for plaintiff to

inquire into whether he can obtain reasonably priced life insurance through his

pension; and (3) plaintiff to provide defendant's counsel her certification regarding

the disposition of her share of defendant's employment-based pension within thirty

days.

        On appeal, defendant argues that because the trial judge did not conduct a

plenary hearing, her modifications to his alimony and life insurance obligations are

not supported by any substantial credible evidence in the record and cannot be

sustained. Defendant also argues that the trial court erred in including his pension

in computing his income. We will address these arguments in reverse order.

         N.J.S.A. 2A:34-23(j)(4) provides, "[t]he assets distributed between the parties

at the time of the entry of a final order of divorce or dissolution of a civil union shall

not be considered by the court for purposes of determining the obligor’s ability to

pay alimony following retirement." "When a share of a retirement benefit is treated

as an asset for purposes of equitable distribution, the trial court shall not consider


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income generated thereafter by that share for purposes of determining alimony."

Innes v. Innes,  117 N.J. 496, 505 (1990).  N.J.S.A. 2A:34-23(b) provides "[w]hen a

share of a retirement benefit is treated as an asset for purposes of equitable

distribution, the court shall not consider income generated thereafter by that share

for purposes of determining alimony." In Steneken v. Steneken,  367 N.J. Super.
 427, 439, 443 (App. Div. 2004), this court affirmed the decision of the trial court

prohibiting "double counting" of pension assets. We found that "a retiree has a right

to a future stream of income attributable to past employment" and because the

pension was distributed as marital property, "the asset [is] outside the reach of the

dependent spouse's need-based alimony claim."         Ibid. This court reiterated a

principle from Steneken that,

             [I]t would be unfair if the dependent spouse were able
             to assert what amounts to a double claim on the spouse
             employee's pension . . . [and] it would be inequitable
             for her to be able to include his pension income twice
             for her benefit, first for a share of equitable distribution,
             and second for inclusion in his cash flow determination
             of an alimony base.

             [Id. at 437 (quoting D'Oro v. D'Oro, 187 N.J. Super.
             377, 379 (Ch. Div. 1982)) (internal quotations
             omitted).]

      In this case, the trial judge calculated defendant's income after retirement

as $51,628 per year, which included the $9,055 from his pension. We agree


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with defendant that the judge erred in including defendant's pension in

computing his income because defendant's pension was equitably distributed

during the final judgment of divorce. The judge's calculation contravened the

principles articulated in Steneken because it deprived defendant of his "right to

a future stream of income attributable to past employment" and unfairly included

an asset that was distributed as marital property for purposes of determining

alimony. Steneken,  367 N.J. Super. at 439. That error was not harmless and

requires reversal for a recalculation of defendant's income. Because we are

remanding on other grounds, explained in detail below, on remand the court

shall exclude defendant's pension payments in determining defendant's income.

      As a second ground for his appeal, defendant asserts that the trial judge made

certain assumptions and inferences without conducting a hearing to adduce evidence

to support her conclusions. In particular, defendant complains that the judge had no

evidentiary basis to conclude that plaintiff "likely" had no ability to adequately save

for retirement. Defendant alleges that without adducing proof of what plaintiff's

budget was when the parties divorced in 1999, and absent proof of how plaintiff

disposed of her share of defendant's pension, the court's decisions to reduce, but not

eliminate, defendant's alimony and life insurance obligations were based on nothing

but pure speculation.


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      The New Jersey Court Rules state that a court "shall, by an opinion or

memorandum decision, either written or oral, find the facts and state its conclusions

of law thereon in all actions tried without a jury, on every motion decided by a

written order that is appealable as of right. . . ." R. 1:7-4(a). This requires the court

to "disclose an analysis of the facts as they apply to the many applicable factors."

Kas Oriental Rugs, Inc. v. Ellman,  407 N.J. Super. 538, 561 (App. Div. 2009). As

stated by the New Jersey Supreme Court, "[n]aked conclusions do not satisfy the

purpose of R. 1:7-4." Curtis v. Finnernan,  83 N.J. 563, 570 (1980). Because

"[m]eaningful appellate review is inhibited unless the judge sets forth the reasons

for his or her opinion," Salch v. Salch,  240 N.J. Super. 441, 443 (App. Div. 1990),

the absence of adequate findings "necessitates a reversal." Heinl v. Heinl,  287 N.J.

Super. 337, 347 (App. Div. 1996).

       In her written decision, the trial judge without explanation reduced

defendant's life insurance obligation from $142,125 to $25,000. Similarly, the judge

made no specific findings to support her decision to downward adjust defendant's

alimony obligation from $250 per week to $150 per week.

      Finally, with respect to the critical issue of whether plaintiff had

adequately saved for retirement, the judge disregarded the issue of how plaintiff

disposed of her share of defendant's pension. The judge stated expressly that


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"[p]laintiff offers no explanation" on that issue. Instead, the judge speculated

that the "pension may have been liquidated and spent down to meet expenses or

perhaps reinvested," and "infer[ed] that the marital pension may have replaced

her lost income for 2014 while in treatment for cancer." The judge also did not

require proofs or make any factual findings regarding plaintiff's monthly budget

at the time of the divorce, or whether she had some ability to put aside some of

her (admittedly meager) income during the seventeen years she was not under

treatment for cancer. Thus, the judge's decision that "[i]t is unlikely [p]laintiff

had the ability to save for retirement, as she currently has no savings, and was

out of work for a year due to cancer treatments" is a naked conclusion untethered

to any supporting facts.

      We are sensitive to the judge's apparent reluctance to force these parties

of advanced age and limited means to marshal the appropriate proofs and

conduct a full plenary hearing. Unfortunately, under these circumstances we are

constrained to remand the matter to allow the judge to set forth the factual and

legal basis for her decision after a full plenary hearing. That hearing should

require plaintiff to come forward with evidence that she saved for retirement to

the extent she was able to do so, and how plaintiff disposed of her share of

defendant's pension. The judge may also consider plaintiff's argument that


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defendant is hiding assets and whether a reduction, if any, rather than an

elimination of defendant's alimony obligation is appropriate.

      Lastly, defendant raises two constitutional issues about the alimony

statute itself. He first asserts that his constitutional rights were violated because

 N.J.S.A. 2A:34-23(j)(3) is too vague to enable judges to make a decision about

the ability of the obligee to save for retirement because it does not provide

instructions for judges to make this finding. He also asserts that this statute

creates two classes of litigants whose alimony agreements upon retirement are

reviewed differently based on whether the parties were divorced before or after

the 2014 amendment of the statute. However, neither of the constitutional

arguments were raised below, and we decline to address them for the first time

on appeal. See Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973); In re

Stream Encroachment Permit,  402 N.J. Super. 587, 602 (App. Div. 2008).

"[O]ur appellate courts will decline to consider questions or issues not properly

presented to the [tribunal below] when an opportunity for such a presentation is

available 'unless the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest.'" Nieder,  62 N.J. at 234

(quoting Reynolds Offset Co. v. Summer,  58 N.J. Super. 542, 548 (App. Div.

1959)).


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Reversed and remanded. We do not retain jurisdiction.




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