Since September 2014, all divorce attorneys have been keep a close eye for all recent decisions from New Jersey’s Appellate Division and Supreme Court analyzing the new alimony laws that were passed just over one year ago. A very recent case addressed the question was whether the Legislature intended N.J.S.A 2A:34-23n (the new alimony law) to affect agreements or orders adopted prior to its enactment. Now most lawyers would agree that generally speaking, New Jersey courts enforce new laws prospectively, unless the law clearly expresses an intent to do otherwise. The updated alimony law adopting the amendments stated that the act would take immediate effect on September 10, 2014, but not apply to any alimony award already ordered or agreed too. In the recent case of Spangenberg v. Kolakowski, the Appellate Division held the law would not apply to affect property (or matrimonial) settlement agreements as well as any post-judgment (meaning court orders obtained after the initial divorce was finalized) enacted prior the date that the new alimony statute became effective.
In Spangenberg v. Kolakowski, David Kalakowski appealed from a Family Part order dated September 19, 2014. The order denied his motion to terminate or suspend his alimony obligation to his ex-wife, Deborah Spangenberg. David argued that his ex-wife’s cohabitation, and his decreased earnings, required termination of alimony under New Jersey Statute 2A:34-23. David further moved to recalculate child support and each parent’s obligation for college expenses. Finally, David appealed from the order denying reconsideration dated November 7, 2014. The Appellate Division rejected David’s argue to apply N.J.S.A 2A:34-23(n), because the law’s provisions did not apply to post-judgment orders that were finalized before the statute’s effective date. The Appellate Division did however agree with David that a plenary hearing was required to determine if a substantial change in financial circumstances warranted a reduction of child support and alimony.
David and Deborah divorced in June 2012, twenty years after they married. All of their issues were resolved and enumerated into writing in a marital settlement agreement, which was ultimately incorporated in the final judgment of divorce. Paragraph six of the marital settlement agreement represented that David agreed to pay $ 2,200 every month for alimony. This number was calculated in consideration that Deborah earned a $ 45,000 annual income, while David earned $ 125,000 annually. Paragraph further provided that the parties agreed that the alimony amount would be reviewed on June 7, 2014. This was based on the expectation that Deborah’s income would increase by that time from additional training or other factors. In addition, Deborah agreed to inform David if she started cohabiting with another man, and that this cohabitation would trigger a review of alimony consistent with the Gayet case and subsequent evolving case law.
Paragraph seven of the marital settlement agreement stated that David would contribute $ 122 a week in child support. The provision also set forth modified support amounts for anticipated future events using the child support guidelines and a blended rate of support in anticipation of the children going away to college and emancipation. The provision covered that if one child lived at college and one was living at home and both were unemancipated, the support would be $ 91. If one child was emancipated but one was still living at home, the support would be $ 78. If one child was living at college and the other was emancipated the weekly support would be $ 52.
College expenses were addressed in Paragraph 13. The provision stated that neither parent had the financial ability to pay for the children’s college. However if the parent’s circumstances changed, they would revisit the issue of college contributions with consideration towards a proportionate to their financial circumstances. In any circumstance, neither parent would be held responsible to contribute to college expenses if they had not been consulted about the cost and selection of the same beforehand.
David filed a motion to review with alimony payment based upon Deborah’s cohabitation with another partner. He further argued that his child support should be reduced because the oldest daughter was now residing with him. Deborah admitted that she was now living with her boyfriend, but objected to the reduction in child support because the oldest daughter moved back in with her, and the youngest child was studying at a college in Washington, D.C. The Family Part judge considered testimony and found that a modification of alimony was warranted because Deborah was receiving an economic benefit from her cohabitation with her boyfriend. Deborah’s income was now higher and David’s lower than the amounts in the marital settlement agreement. Still, the judge used the income figures recorded in the settlement agreement to calculate the alimony and child support. David was ordered to pay $1350 every month in alimony, and $ 339 a week in child support. His motion for reconsideration was denied on March 26, 2014. The judge categorized David’s request as premature and stated that review would take place in June 2014.
On July 21 2014, David filed a motion to modify or terminate alimony based upon the marital settlement agreement’s two-year review provision. He sought to compel the provisions of the marital settlement agreement, emancipation of the older child, and a recalculation of child support. Using the marital settlement agreements provisions the judge reset child support for the younger child to $ 99 a week, and David was ordered to pay $ 59% of the child’s college expenses. On appeal David argued that the court ignored certain amendments to the alimony statute that addressed cohabitation were ignored.
The Appellate Division started its opinion by stating that the panel defers to a trial court’s factual finding as long as they are supported by adequate, substantial, credible evidence. Reversal will happen only if a mistake must have been made because the trial court’s factual findings are so clearly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. Regardless, a trial court’s legal conclusions and the application of those conclusions to the facts are still subject to plenary review.
New Jersey courts have interpreted New Jersey Statute 2A:34-23 to require anyone who seeks modification to prove “changed circumstances.” A supporting spouse’s support obligation is primarily determined by the quality of life during marriage, and the continued maintenance of the standard of living the dependent spouse and children had become accustomed to. As a general principle, a modification to the same obligation may be warranted in certain changed circumstances. A few examples of valid changed circumstances include: an increase in living cost; increase or decrease in the supporting spouse’s income; illness or disability; the dependent spouse living with another partner; or employment by the dependent spouse. Courts have consistently rejected requests for modification for temporary changes in circumstances, or expected changes that have not occurred. An increase in children’s needs due to maturing has also been held to justify and increase in support as long as the supporting parent is financially able.
The Supreme Court also made special note that the dependent spouse’s ability to contribute to his or her own expenses, both at the time of the original judgment and during when the modification is requested should be considered. The extent of economic reliance, not a status as a wife, must determine the length of support as well as its amount. This is based not only on the actualities of today’s market, but also the constitutional guarantee of “the equal protection of the law.” The law is concerned with the financial realities of modern married life, not an antiquated model of domestic relations that provided women with security in exchange for economic dependence and discrimination. Gender is no longer an acceptable reason for economic need. Need must be calculated based on the earning capacity of the individual spouse in the marketplace.
The New Jersey Legislature amended N.J.S.A 2A:34-23 to more clearly quantify considerations examined when faced with a request to establish or modify alimony. The law provides that alimony may be suspended or terminated if the spouse receiving support cohabits with another person. Cohabitation requires a mutually supportive, intimate personal relationship where the couple has undertaken the duties and privileges that are generally associated with marriage.
The marital settlement agreement stated that the alimony obligation would be reviewed upon cohabitation. The court conducted such a review in December 2013. This order was made before the statutory amendment’s effective date. Therefore, the new cohabitation amendments do not apply. The Appellate Division found that the order reducing alimony was supported by substantial evidence in the factual record and the judge correctly applied the law. However a plenary hearing was still required to determine if a substantial change in financial circumstances warranted a reduction of child support and alimony.
If you have a potential case regarding alimony in the state of New Jersey, I invite you to learn how my office may help you.