Opinion
DOCKET NO. A-0942-13T1
09-23-2014
JOSEPH P. LYNDELL, III, Plaintiff-Appellant, v. DONNA MARIA DADARIO, Defendant-Respondent.
Ted M. Rosenberg argued the cause for appellant (Ted M. Rosenberg, attorneys; Robert M. Rosenberg, on the brief). Donna Maria Dadario, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-413-08. Ted M. Rosenberg argued the cause for appellant (Ted M. Rosenberg, attorneys; Robert M. Rosenberg, on the brief). Donna Maria Dadario, respondent, argued the cause pro se. PER CURIAM
Plaintiff, Joseph P. Lyndell, III, appeals from the July 3, August 29, and October 18, 2013, Family Part orders denying his motions to reduce or terminate his alimony obligation to defendant Donna Maria Dadario, denying his request to stay alimony pending this appeal, and recalculating child support to include the original alimony amount, respectively. Because we conclude that defendant made a prima facie showing of changed circumstances, we reverse and remand for reconsideration of plaintiff's modification request, in accordance with the procedures set forth in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980).
The Notice of Appeal filed by plaintiff indicates his intent to appeal the July 3, 2013 order denying his motions to emancipate his oldest son and terminate his obligation to pay that child's automobile insurance. At oral argument before this panel, plaintiff confirmed he is waiving these two claims. The sole issue on appeal pertains to alimony.
The background facts relevant to this matter follow. The parties were married on May 9, 1987, and divorced on May 23, 2008. They have three children, now twenty-four, twenty-two, and eighteen years of age; at present the eldest and middle child are emancipated. A divorce trial began on the issues pertaining to the custody of the children, equitable distribution, and child and spousal support. Before the trial concluded, the parties entered into a Stipulation of Settlement (agreement), which the court incorporated into the dual final judgment of divorce (FJD).
The relevant section of the agreement reads,
Based upon [p]laintiff's income of $75,000 and [d]efendant's income of $45,000, and taking into account the length of the parties['] marriage and other factors
associated with the New Jersey statutes pertaining to spousal support, [p]laintiff shall pay to [d]efendant the sum of $200[] per week on a permanent basis. . . . In partial consideration of [p]laintiff's waiver of equity in the former marital home [d]efendant shall forbear receiving any alimony payments for a period of five years from the date of the parties divorce. As such, plaintiff shall not have an alimony obligation until May of 2013 at which time his $200[] per week alimony payments shall begin.
The FJD also obligates plaintiff to pay $250 per week in child support. This amount was a negotiated figure computed by averaging two child support guideline worksheets, one of which included the alimony payment of $200 per week.
When divorced, plaintiff was employed as a salesman for CoolerSmart and earned $75,000 per year. After he had been laid off, the company rehired plaintiff in August 2010 at a reduced salary of $35,000 per year. When he filed his motion, plaintiff was working for a different company earning $35,000. Plaintiff provided an April 2013 case information statement and a 2012 tax return showing income of $28,166. Defendant opposed the application; she submitted a case information statement and certified she earned $55,000.
After oral argument, the judge denied defendant's motion to modify or terminate alimony. She noted that the parties' negotiated agreement involved a lot of compromise. The judge agreed with defendant that modifying alimony involved more than just a review of the parties' incomes. She ultimately found that plaintiff failed to prove any change in his income sufficient to "override all the other negotiated portions of the final judgment of divorce to the point where I think that there's been a substantial change in circumstances." Thereafter, the judge enforced the agreement, which obligated plaintiff to begin making alimony payments of $200 per week. Based upon a separate ruling to recalculate child support, the judge deemed it appropriate to include the $200 alimony in the computation. Although the August 29, 2013, child support order mistakenly failed to include the alimony on the worksheet, the October 18, 2013, order corrected the error. This appeal followed.
Plaintiff argues that the trial court erred by failing to reduce his alimony obligation. He contends that he proved a dramatic reduction in income after the parties entered into their agreement, sufficient to establish a prima facie case of changed circumstances.
"New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistent[] with their post-marital responsibilities." Konzelman, supra, 158 N.J. at 193.
Settlement agreements in family court matters are enforceable "to the extent that they are just and equitable." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (internal citations and quotation marks omitted). As with all contracts, a court must enforce such an agreement as the parties intended "at the time of agreement/contracting," so long as it is not inequitable to do so. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).
Modification of a support obligation based on changed circumstances is committed to the trial court's sound discretion. N.J.S.A. 2A:34-23; Lepis, supra, 83 N.J. at 145; Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). The moving party must make a prima facie showing of changed circumstances before a court will order discovery of the financial circumstances of each party. Lepis, supra, 83 N.J. at 157-59.
We begin by agreeing with the trial judge that the parties' negotiated alimony agreement calls for plaintiff to waive his interest in the marital home in exchange for defendant waiving her interest in his pension. The stipulated amount owed to plaintiff was $52,000, which the parties agreed to satisfy by defendant foregoing receipt of alimony of $200 per week for five years. The clear intent of the agreement seems to be that the resulting offset of the mutual waivers of interests would be satisfied during a five-year alimony forbearance period. Neither party disputes the plain meaning of the alimony provision.
We are mindful that the timing of plaintiff's modification motion coincides with defendant's right to receive her alimony payments following the five-year hiatus. Nevertheless, plaintiff submitted financial documentation that supports his claim that since the divorce he has sustained an involuntary fifty-percent decrease in income. Defendant does not dispute that plaintiff's circumstances have changed, and certifies that her income has increased by $10,000 since the divorce.
While there is no mathematical formula for determining what constitutes a significant change in circumstances, we are satisfied that plaintiff's decrease in income warrants closer review. See Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (affirming modification where payor's gross income dropped almost fifty percent); Beck v. Beck, 239 N.J. Super. 183, 186-87 (App. Div. 1990) (finding changed circumstances where payor's documented income had "declined dramatically" over last several years).
Here, plaintiff provided the trial court with his tax returns, pay stubs, and unemployment benefit statements demonstrating that his gross income had fallen from $75,000 at the time of divorce to between $28,166 in 2012 and $35,000 in 2013. He also produced evidence that he remained employed over the years, albeit at lower wages. We do not fault the judge for giving effect to the parties' agreement, particularly given the timing of the motion. But plaintiff brought the motion precisely when he would begin to feel the obligation's effects on his reduced income. In our view, the trial court could have assessed the financial proofs submitted by plaintiff more closely to discern if he had made the requisite showing of changed circumstances.
Nevertheless, we consider the arguments raised in light of the applicable legal standards, giving due regard to the parties' agreement, and we conclude that plaintiff made a prima facie showing of changed circumstances sufficient to warrant further review by the court. Our conclusion is buttressed by plaintiff's reasons for the decline in his income, the evidence showing his income had substantially decreased since the time his alimony obligation was established, and defendant's acknowledgement of plaintiff's financial condition.
We therefore remand this matter for further consideration of plaintiff's request to modify alimony. On remand, the court should consider the nature of plaintiff's income, including whether it is representative of his earning capacity. The court may, at its discretion, afford the parties a brief opportunity to engage in financial discovery, thereafter permitting them to supplement their submissions. Finally, if there are contested issues of relevant fact, the judge should conduct a plenary hearing to determine whether a modification of alimony is warranted. If so, the October 2013 child support order must also be recalculated to include the revised alimony figure. We leave it to the trial court to establish the accurate effective dates of the support orders, and to order the adjustment of the probation accounts.
Accordingly, we reverse that portion of the order denying plaintiff's motion to modify his alimony obligation and remand the case to the trial court for further proceedings in accordance with Lepis, supra, 83 N.J. at 157-59, and this opinion. Our decision to vacate the orders and remand the matter for a plenary hearing does not vacate the current alimony order. Plaintiff is to continue to pay $200 per week pursuant to the FJD, until such time as new support orders may be entered and appropriate adjustments made to his probation account.
Reversed and remanded. We do not retain jurisdiction I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION