Opinion
DOCKET NO. A-0694-14T3
01-20-2016
KURT SNYDER, Plaintiff-Appellant, v. ELLEN SNYDER, Defendant-Respondent.
Weinstein, Lindemann & Weinstein, attorneys for appellant (Jeffrey P. Weinstein, of counsel and on the brief; Rachel Zakarin, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1155-05. Weinstein, Lindemann & Weinstein, attorneys for appellant (Jeffrey P. Weinstein, of counsel and on the brief; Rachel Zakarin, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff Kurt Snyder appeals the provisions of the August 26, 2014 order that denied his application to reduce child support and terminate or reduce alimony payments to defendant Ellen Snyder, his former wife. For the reasons that follow, we affirm.
I
The parties were married in 1990 and their judgment of divorce, which incorporated a property settlement agreement (PSA), was entered September 27, 2005. The parties have two boys, presently ages sixteen and nineteen. Both children have severe learning disorders and developmental delays. The older child cannot speak and is not fully toilet trained. When the children are not attending special needs school, defendant cares for them exclusively. Because she cannot afford professional therapists, her care of the children includes providing the occupational, physical, speech, and feeding therapies she is qualified to perform.
At the time of the parties' divorce, plaintiff was employed as a landscape architect with Vernon Daniel Associates. The PSA specifically states that his gross income in 2004 was $150,000 and that defendant was unemployed. The PSA provides plaintiff shall pay defendant $4,123 per month or $49,608 per year in permanent alimony, and $1,360.66 per month or $16,327.92 per year in child support.
In November 2013, plaintiff filed a motion to reduce child support and terminate, or at least reduce, alimony based upon an alleged permanent change in his circumstances. Plaintiff argued that because of the economic recession, Vernon Daniel Associates suffered a loss of revenue from a decline in the demand for the kind of services it provides. As plaintiff's salary is tied to the profits the business earns, his annual salary dropped to the $60,000 range in 2009, where it has remained. Specifically, he claimed his annual salary from 2009 to 2012 was as follows: in 2009, his salary was $64,218; in 2010, $61,266; in 2011, $61,151; and in 2012, $61,429. In addition, perquisites he previously enjoyed, such as having his rent paid for by his employer, have been eliminated. Finally, he argued defendant has the capacity to earn sufficient income to support herself and contribute to child support.
Defendant contended the documents issued by plaintiff's employer in discovery indicated he was still receiving substantial perquisites, the aggregate value of which was approximately $67,000 per year. She also claimed plaintiff received income from dividends and freelance work. Between earned and unearned income and perquisites, she claimed plaintiff earned approximately $140,000 per year. In addition, plaintiff's mother had recently died and defendant was expected to receive approximately $750,000 from her estate.
Defendant noted that even if plaintiff were earning in only the $60,000 range, he has the ability to earn more and has not made any effort to find a position that pays commensurate with his ability to earn. Finally, she pointed out that, while the children attend school during the day, she does work part-time, although she earned only about $4,000 per year. The balance of her time was spent caring for the children. She claimed that when the parties entered into the PSA, they agreed that no income would be imputed to her and that plaintiff would pay her the alimony and child support set forth in the agreement in consideration for the fact she would be caring for the children full time.
Plaintiff argued defendant misinterpreted the documentation his employer provided about perquisites and his salary. He insisted his income is in the $60,000 range and that he does not receive any perquisites. He contended that, at the least, a plenary hearing was necessary to resolve the factual disputes.
In a lengthy written opinion, the trial court denied plaintiff's motion without holding a plenary hearing.
II
Plaintiff presents the following arguments for our consideration:
POINT I - THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CONSIDER THE SUBSTANTIAL CHANGE IN THE
FINANCIAL CIRCUMSTANCES OF THE PLAINTIFF, INCLUDING THE DRAMATIC DECREASE IN THE INCOME OF THE PLAINTIFF OVER A SUSTAINED PERIOD OF TIME AND DIMINUTION OF HIS ASSETS.
POINT II - THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO ORDER A PLENARY HEARING AND MAKING FINDINGS OF FACT AND DETERMINATIONS OF CREDIBILITY BASED UPON CONFLICTING CERTIFICATIONS OF THE PARTIES AND BY ADOPTING THE ASSERTIONS MADE BY THE DEFENDANT OVER THOSE OF THE PLAINTIFF WITHOUT THE BENEFIT OF A HEARING.
A. The court made incorrect assumptions concerning the income of the plaintiff which were not supported by the record.
B. The court abused its discretion by failing to consider the defendant's obligation to contribute to her own needs.
C. The court abused its discretion concerning the plaintiff's anticipated inheritance.
The law guiding the review of an application to reduce or eliminate alimony is clear. "[A]limony and support orders define only the present obligations of the former spouses[,]" which "duties are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (internal citations omitted). Even if parties enter an agreement regarding alimony, a former spouse may seek judicial review or modification of such alimony based upon a showing of changed circumstances. Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (citing Miller v. Miller, 160 N.J. 408, 419 (1999)), certif. denied, 180 N.J. 354 (2004).
The party seeking to modify an alimony obligation has the burden of showing "changed circumstances." Lepis, supra, 83 N.J. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)). In addition, the "party must demonstrate that changed circumstances have substantially impaired his ability to support himself." Ibid. "[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one's family." Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982).
Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988) (citation and internal quotation marks omitted), certif. denied, 114 N.J. 505 (1989). Rather, "a court 'has every right to appraise realistically [a spouse's] potential earning power.'" Ibid. (alteration in original) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller, supra, 160 N.J. at 420 (citations omitted).
Here, even if plaintiff's total annual earned and unearned income were only in the $60,000 range and he no longer received any perquisites, there is no evidence he made any effort to find a position in which he could earn what or close to what he earned at the time the parties entered into the PSA. Despite the fact that since 2008 his income has been approximately $85,000 less than what he earned at the time of the divorce, there is no evidence plaintiff ventured out in an attempt to find other, more lucrative employment. An obligor cannot successfully show a change in circumstances due to a loss in income unless he also demonstrates he made a concerted effort to find work at comparable pay. Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004); Dorfman v. Dorfman, 315 N.J. Super. 511, 517 (App. Div. 1998). Plaintiff has not made that showing. Further, as he has not shown a change in circumstances, there was no need to hold a plenary hearing.
Accordingly, we affirm the trial court's decision to deny plaintiff's request to modify or terminate alimony. As plaintiff's request to modify child support was grounded upon a claim he experienced a change in circumstances, but none was found, we similarly affirm the decision to deny plaintiff's request to reduce child support. Finally, there has been no showing defendant's circumstances have changed to warrant a reduction in permanent alimony.
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION